Intestate Estates

Definition 

One dies intestate if that person does not have a valid will at the time of their death. If a person dies intestate, then the laws of the Commonwealth of Virginia in effect at the time of death determine who the heirs are and hence who receives the decedent’s property. 

Qualification 

What is it? 

Qualification is when a person comes before the Clerk to formally request the powers of a personal representative for an estate. When no will exists, this title is often “administrator.”  Those qualifying will take an oath and post a bond before being granted their letters of qualification. Bond surety may be waived by the Code of Virginia.

When is it necessary? 

Qualification is necessary if the total value of the personal estate exceeds $75,000 and may be necessary if there are business transactions such as loans or taxes involved, or when the heirs cannot work together. Qualification as administrator of an intestate estate grants no power over real estate.

What can be done without qualification?

The transfer of real estate can take place without the need for formal qualification using a Real Estate Affidavit (PDF) recorded in the Circuit Court. Additionally, if the heirs can work together, the transfer of motor vehicles can be completed without a formal qualification.

If the personal estate (not including real estate) is less than $75,000, all heirs can work together, and at least 60 days have elapsed since the decedent’s passing, a Virginia Small Estate Act Affidavit (PDF) can be used pursuant to § 64.2-600 and § 64.2-601.

Estates with Real Estate Only 

Without a will, real estate passes either by right of survivorship established in an existing deed or, in cases with no right of survivorship, in accordance with Code of Virginia § 64.2-200. 

In cases where real estate is the only asset, a Real Estate Affidavit (PDF) may be filed and recorded in the Circuit Court without the formal qualification of an administrator.

Small Estate Qualification 

If qualification is necessary and the total value of personal assets to be administered is less than $35,000, the estate is considered small asset. Small asset estates can have their bond surety waived by Code of Virginia § 64.2-1411. They may or may not have to report to the Commissioner of Accounts.

Large Estate Qualification 

If qualification is necessary and the total value of personal assets to be administered is greater than $35,000.00, the administrator is considered to be overseeing a large estate. Large estates can only have their bond surety waived by the Code of Virginia § 64.2-505. They will have to report to the Commissioner of Accounts and file the required inventory and accounting paperwork.