May 1, 2025
This article is a product of the Virginia State Bar Real Property Section.
Upon death while owning real property in Virginia, the real property passes according to the laws of Virginia. Real property in Virginia is said to “drop like a stone”—title is immediately vested at time of death in the heirs at law or devisees. But those heirs or devisees need to establish their ownership of record in the land records of the circuit court in which the real property lies.
Intestate (Without a Will)
If no will is present and the property has not been transferred before death, the property passes to the closest surviving family members by intestate succession, in a structure set out in Virginia Code § 64.2-200. The course of succession then follows through the family: to the surviving spouse and/or children; if no spouse or children exist, then to the parents or surviving parent; if none of the foregoing, then to siblings and descendants of any siblings who have predeceased; and so on, branching out to nearest ancestors and their descendants. There are special rules that govern certain aspects of intestate succession, such as persons of half-blood (such as half-siblings), adopted children, or cases where paternity is an issue.
Heirs at law must record a list of heirs or real estate affidavit in the circuit court clerk’s office where the property is located to establish their inheritance of record. An administrator may qualify to act on behalf of the intestate estate, however, that administrator does not automatically have power over the real estate. To convey real estate, the administrator will need a special order from the court granting them authority to sell.
Testate (With a Will)
A will can be executed, leaving property to family, friends, or other persons or entities. The real property can be left specifically or directly to someone, can be left to a trust, or may be appointed to an executor to administer the estate and give them power to sell the real estate and distribute the proceeds as directed. The will must be signed, dated, and witnessed according to law. There are special provisions in the law for changes that may have occurred during the owner’s lifetime after executing the will, such as the birth of additional children, the death of a named devisee, or divorce from a spouse.
To be effective, the original signed will must be probated. Probate means that the will is presented to the circuit court clerk, who determines whether the will is valid and authentic. Most wills prepared by attorneys are self-proving—i.e., they were witnessed and acknowledged with certain language, to allow the clerk to accept the will as valid without further requirements. If the will is not self-proving, witnesses who knew the decedent must come to the clerk’s office to testify as to the validity of the will and verify the signature of the decedent.
To act, an executor must qualify in the court. Unless bond is waived by the terms of the will, the executor must post bond. The executor must then file inventories and accountings to the court to show what property is owned and how they distributed to the beneficiaries.
If the will is probated in another state, the executor or devisees must probate exemplified (triple-sealed) copies of the will and probate certificates and orders in the probate records of the circuit court clerk’s office in Virginia, where the land is located.
Other Ways for Property to Pass
If a death occurs while owning an interest in real property jointly with another person, with rights of survivorship, then the property passes automatically by operation of law to the surviving co-tenant at the co-owner’s death.
If the real property is conveyed to the trustees of a trust during the owner’s lifetime, the property does not pass through the estate; instead, it remains a trust asset for the trustees to distribute.