If your brother or sister dies owning property in Virginia, your sibling’s will and Virginia law determine whether you inherit anything from the estate. If he left a valid will naming you as a beneficiary, you are eligible to inherit as his will directs, after his creditors are paid. If he didn’t leave a valid will, you may inherit under certain circumstances.
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Inheritance by Will
You can inherit under the terms of your sibling’s will, provided the will is valid under Virginia law. The will’s validity is officially determined when the will is submitted to the probate court, but the requirements are fairly simple. The will must be in writing and signed by your deceased sibling, usually in the presence of two witnesses who must also sign the will. Your deceased sibling and the witnesses must have been competent at the time they signed the will, so if your sibling was mentally incapacitated when he signed the will, it will not be considered valid.
In Virginia, a decedent cannot entirely disinherit his surviving spouse, even if he leaves a will attempting to do so. This spousal share, called an elective share, is one third of the estate if your sibling had children or one half of his estate if he had no descendants. If your sibling tried to disinherit his spouse by leaving his estate to his brothers and sisters, your shares will be reduced by his spouse’s elective share. If your sibling did not leave a will, his surviving spouse inherits an elective share and the rest of his estate passes under Virginia’s laws of intestate succession, which kick in when a resident dies without a valid will.
Virginia’s intestate succession laws are default rules that determine how a decedent’s estate passes when he dies without a valid will. In Virginia, a decedent’s estate passes to his surviving spouse, children or parents before passing to his siblings. If your sibling left a surviving spouse but no descendants, his spouse inherits everything. If he had descendants, his spouse and descendants share his estate. If he had no surviving spouse, his descendants inherit everything. Finally, if he left neither spouse nor descendants, his parents inherit everything. Only after those relatives are ruled out can siblings inherit without a will.
Nieces and Nephews
If your sibling died without a surviving spouse, descendants or surviving parents, his estate will be split equally among his siblings. If a sibling that should have inherited is no longer living, his descendants inherit his share. In other words, the decedent’s nieces and nephews inherit.
References & Resources
- Living Trust Network: Virginia Intestacy Laws
- Crouch & Crouch Law Offices: Estate Planning and Wills in Virginia
- Virginia Cooperative Extension: Rights of Surviving Spouses and Children
- Virginia Bar Association: A Guide to the Administration of Decedents’ Estates in Virginia
- Virginia General Assembly Legislative Information System: Code of Virginia: 64.2-403
- Virginia General Assembly Legislative Information System: Code of Virginia: 64.2-304