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Probate Without a Will in Virginia
Support GuideVirginia9 min read

Probate Without a Will in Virginia

How Virginia intestate succession works: who qualifies as administrator under §64.2-502, the 30-day priority window, and who inherits under §64.2-200.

By Settled Editorial

When someone dies in Virginia without a will, two practical questions come first: who is allowed to handle the estate, and who inherits the property. The short answer: a person with priority qualifies as the administrator before the Clerk of the Circuit Court, and the estate passes by Virginia intestate succession under Va. Code 64.2-200. The surviving spouse usually takes the whole estate, unless the decedent left descendants who are not also the spouse's, in which case the spouse takes one-third and those descendants take two-thirds. (See Code of Virginia Title 64.2, Chapter 2.)

Use this guide as a planning map, not as legal advice or a filing packet. Each Clerk's office can use local checklists, appointment rules, and document-review steps. Start with the Virginia probate guide for the full process, then verify the packet with the Clerk of the Circuit Court in the right jurisdiction before you sign or submit anything.

Dying without a will is called dying "intestate." It does not mean the estate goes to the Commonwealth in most cases. It means Virginia statute, not a will, decides who serves and who inherits.

Who Administers the Estate

With no will, there is no named executor. Virginia appoints an administrator instead. The administrator is the personal representative for an intestate estate. The job is the same as an executor's: gather assets, pay valid debts, report to the Commissioner of Accounts, and distribute what is left to the heirs.

Who gets to serve follows a priority order set by Va. Code 64.2-502.

  • For the first 30 days after death, only the surviving spouse and the decedent's heirs (the distributees) have the right to qualify as administrator. The Clerk gives this window to the people who stand to inherit.
  • After 30 days have passed, if no spouse or distributee has qualified, the Clerk may grant administration to the first person who applies. Acting first matters once the window opens.
  • After 60 days have passed with no qualification, the law also lets a creditor or other person apply to administer the estate, which is another reason a spouse or close relative usually qualifies within the first 30 days.

(Source: Va. Code 64.2-502.)

This priority window is one reason families act early. If the surviving spouse or an heir wants to serve, qualifying inside the first 30 days keeps control with the family rather than a creditor or an outside applicant.

How to Qualify as Administrator

Qualifying as administrator happens before the Clerk of the Circuit Court in the county or independent city where the decedent resided at death. Virginia has no separate "Probate Court," so the Circuit Court Clerk is the office that opens the estate. (Source: Estate Administration in Virginia.)

To qualify, the applicant generally:

  • Goes to the Clerk of the Circuit Court for the right jurisdiction, often by appointment
  • Takes an oath to faithfully administer the estate
  • Posts a bond, with or without surety depending on the facts and the Clerk's requirements
  • Provides a List of Heirs so the Clerk knows who inherits
  • Receives a certificate of qualification, Virginia's proof of authority to act

That certificate is the document banks, the DMV, and record holders ask for. It works the same way "letters of administration" do in other states. The Virginia certificate of qualification guide walks through the oath, bond, and surety details.

A bond is more likely to require surety when the administrator lives out of state or when heirs are minors. Local practice varies, so confirm the bond and surety rules with the Clerk before the appointment.

Who Inherits Under Virginia Intestate Succession

Once an administrator is in place, Virginia statute decides who inherits. Only probate property passes this way. Assets with a named beneficiary, a payable-on-death tag, survivorship rights, or trust ownership usually pass outside intestacy. (Source: Code of Virginia Title 64.2, Chapter 2.)

The surviving spouse's share under Va. Code 64.2-200 turns on one fact: whether the decedent left descendants who are not also the spouse's.

Family situationSurviving spouse shareDescendants share
No surviving descendantsEntire estateNone
All descendants are shared with the spouseEntire estateNone
One or more descendants are not the spouse's (for example, a child from a prior relationship)One-thirdTwo-thirds to the decedent's children and their descendants

So a surviving spouse takes everything when the couple's children are the only descendants, or when there are no descendants at all. The split to one-third and two-thirds only kicks in when the decedent had a child or grandchild outside the marriage to the surviving spouse. (Source: Va. Code 64.2-200.)

On top of the intestate share, a surviving spouse can claim the Virginia family, exempt property, and homestead allowances, which provide support and protected property ahead of most estate claims.

When There Is No Surviving Spouse

If there is no surviving spouse, the estate passes down a fixed order of classes under Va. Code 64.2-200. Each class must be exhausted before the next inherits.

  1. Children and their descendants. They take the whole intestate estate. A deceased child's share passes down that child's line by representation under Va. Code 64.2-202.
  2. Parents. With no descendants, the estate passes to the decedent's surviving parent or parents.
  3. Siblings and their descendants. With no descendants and no surviving parent, the estate passes to the decedent's brothers and sisters and their descendants.
  4. More remote kin. With none of the above, the estate splits between the paternal and maternal sides under the collateral kinship and moiety rules of Va. Code 64.2-200.

Two details affect the math. Collateral relatives of the half blood inherit half as much as those of the whole blood in the same degree (Va. Code 64.2-202). Stepchildren are not heirs unless adopted, though Virginia has a narrow last-resort rule that can pass an estate to stepchildren before it would ever escheat to the Commonwealth. Confirm the family tree before relying on any share.

Real Estate Passes to Heirs at Death

Virginia handles solely owned real estate differently from most personal property. The land passes directly to the heirs at the moment of death. It does not sit in the estate waiting for the Clerk to transfer it. (Source: Code of Virginia Title 64.2.)

When there is no will, the Clerk records a List of Heirs (CC-1611) so the land records show who now owns the property. Probate confirms the chain of title rather than conveying the house. The administrator can still reach the real estate later if the estate needs it to pay debts.

That does not mean an inherited house is hands-off. Deed language, survivorship wording, debts, mortgage status, and title-insurance requirements can all change the next step. If a house is involved, check the deed record, the tax record, the mortgage, and the creditor picture before anyone distributes or lists the property.

Documents to Gather First

A short document stack makes the first conversation with the Clerk more useful, because the Clerk, banks, and the Commissioner of Accounts ask many of the same questions. Locate:

  • Certified death certificates
  • Names, ages, and addresses for every heir, for the List of Heirs
  • A list of bank accounts, vehicles, personal property, and real property
  • Deeds, tax parcel details, and mortgage information for real estate
  • Recent bills, creditor letters, and tax notices
  • Beneficiary designations, payable-on-death records, and survivorship title records

The Virginia executor duties guide outlines the tasks that follow qualification, which apply to an administrator the same way they apply to an executor.

When to Get Legal Help

Some intestate estates are simple enough to plan with official forms and Clerk instructions. Others need legal advice before anyone qualifies or distributes.

Consider talking with a Virginia probate attorney when:

  • Heirs disagree about who should serve or who inherits
  • A child from a prior relationship changes the spouse's share
  • The heir picture is unclear, or someone cannot be located
  • Real estate must be sold to pay debts
  • The estate may be insolvent, or a creditor threatens a claim
  • The decedent owned property in more than one state

This guide can help organize the source-backed task list and the right jurisdiction. A lawyer can advise on rights, disputes, and signing decisions.

Practical Sequence

Use this as a planning checklist:

  1. Gather certified death certificates, account records, deeds, and the names and addresses of all heirs.
  2. Confirm the county or independent city where the decedent resided at death.
  3. Decide who has priority to serve, and qualify inside the 30-day spouse and distributee window if the family wants control.
  4. Qualify before the Clerk of the Circuit Court, take the oath, post any bond, and get the certificate of qualification.
  5. Apply the Va. Code 64.2-200 shares to identify who inherits.
  6. Track the inventory and accounts with the Commissioner of Accounts as the Virginia probate guide describes.

Verify every fact here with the local Clerk of the Circuit Court before you act, because this is a planning map, not legal advice.

This guide is general information about Virginia estates. It is not legal advice. Confirm anything that affects your situation with the Clerk of the Circuit Court, the Commissioner of Accounts, or a licensed Virginia attorney.

Sources

Information current as of June 9, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Virginia can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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