Reston, VA asked in Estate Planning for Virginia

Q: In Virginia, are sons of deceased sister valid heirs to her brother's estate-no will, no kids, no parents, and unmarried

My mom passed away a few months before my uncle, but we have been advised that my brother and I are valid heirs. I read about the 120 hour rule, but that does not seem to apply here, because my mom has living sons. He had three sisters, including my mom. One of the two living sisters is insisting that we are not valid heirs because my mom died before my Uncle.

Related Topics:
1 Lawyer Answer
James H. Wilson Jr.
PREMIUM
Answered

A: The course of descents in Virginia is set forth in Virginia Code Section 64.2-200 as follows:

"1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent's children and their descendants, and one-third of the estate descends and passes to the surviving spouse.

2. If there is no surviving spouse, then the estate descends and passes to the decedent's children and their descendants.

3. If there is none of the foregoing, then to the decedent's parents, or to the surviving parent.

4. If there is none of the foregoing, then to the decedent's siblings, and their descendants.5. If there is none of the foregoing, then one-half of the estate descends and passes to the kindred of one of the decedent's parents and one-half descends and passes to the kindred of the other of the decedent's parents in the following course:

a. To the decedent's grandparents, or to the surviving grandparent.

b. If there is none of the foregoing, then to the decedent's uncles and aunts, and their descendants.

c. If there is none of the foregoing, then to the decedent's great-grandparents.

d. If there is none of the foregoing, then to the siblings of the decedent's grandparents, and their descendants.

e. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.

B. If there are no surviving kindred of one of the decedent's parents, the whole estate descends and passes to the surviving kindred of the other of the decedent's parents. If there are no kindred of either parent, the whole estate descends and passes to the kindred of the decedent's most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse's death, as if such spouse had died intestate and entitled to the estate.

C. If there is no other heir of a decedent's real estate, such real estate is subject to escheat to the Commonwealth in accordance with Chapter 24 (§ 55.1-2400 et seq.) of Title 55.1."

In analyzing inheritance rights in the absence of a will, a person should go through each step to determine if there are heirs at that level. If so, they inherit and the analysis stops. Sometimes, it is necessary to create a family tree.

There are certain special statutes dealing with particular situations in probate and nonprobate transfers. One is the Uniform Simultaneous Death Act appearing in Chapter 12 of Title 64.2 of the Code of Virginia. It is designed to apply to a situation such as a car accident or plane wreck where two related people die or are killed at about the same time. If it is not clear that one survived the other by at least 120 hours, then the person is treated as if he or she predeceased the other.

Any person trying to determine inheritance rights in Virginia should consult with an experienced Virginia probate and estate administration lawyer.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.