If you die without a will, you do not leave your family a blank slate.
You leave decisions to state law and the courts.
For parents in Virginia, Maryland, or Washington, DC, that can affect:
- Who manages your property
- Who receives your money and home
- Who manages an inheritance for your children
- Who raises your minor children if no other legal parent is available
- How long your family must deal with probate
The good news: You do not need a complicated estate plan to address these problems. A properly prepared will can name the person you want to raise your children and explain how your assets should pass. A trust plan can add more control and support probate avoidance.
Here is what happens without a will in each jurisdiction.
First, understand the two separate issues
When parents talk about estate planning, they often focus on who gets their money.
That is only half the issue.
1. Guardianship of your children
This concerns who cares for your children, makes decisions for them, and provides a home.
If the other legal parent is alive, has parental rights, and is able to care for the children, that parent will generally continue caring for them. Your lack of a will does not normally override the rights of a surviving parent.
The situation becomes more complicated if:
- Both parents die
- The surviving parent is unavailable
- The surviving parent is legally unable or unsuitable to provide care
- There is a dispute among relatives
- The parents are separated or have complicated custody arrangements
If no available legal parent can care for the children, a court may need to appoint a guardian.
2. Management of your children’s inheritance
This is separate from deciding where your children live.
A minor child usually cannot manage inherited money, real estate, or investments alone. The court may need to appoint an adult to manage the child’s property.
Without proper planning, one person could raise your child while another person manages the child’s inheritance. The court may also require bonds, accountings, and ongoing supervision.
That means more delay, more paperwork, and less control for your family.
Virginia: State law decides the inheritance
Virginia’s intestacy rules are found in Virginia Code § 64.2-200.
“Intestacy” means dying without a valid will.
Who inherits in Virginia?
The result depends on your family structure.
- Surviving spouse and only children shared with that spouse: The surviving spouse generally receives the entire probate estate.
- Surviving spouse and at least one child who is not the spouse’s child: The spouse generally receives one-third, and the children share two-thirds.
- No surviving spouse: The children generally inherit the probate estate in equal shares.
- No spouse and no children: Virginia law moves through other relatives in a set order.
These rules apply to probate assets. They may not apply to property that passes through a trust, joint ownership, or a beneficiary designation.
What happens to a minor child’s inheritance?
A child can inherit under Virginia law, but a minor cannot simply take control of the money.
The court may appoint a guardian of the child’s estate. That person manages the inheritance until the child reaches adulthood, subject to legal requirements and possible court supervision.
This is different from a guardian of the child’s person.
Virginia law allows a parent to nominate a guardian in a will. See Virginia Code § 64.2-1701. A nomination gives the court clear evidence of your wishes, although the court still considers the child’s best interests and any surviving parent’s legal rights.
That is why estate planning Virginia families complete before a crisis often starts with one basic question:
Who should raise your children if you cannot?
Maryland: Minor children can change the outcome
Maryland’s intestacy rules are found in Maryland Estates and Trusts §§ 3-102 and 3-103.
Who inherits in Maryland?
The rules vary based on whether you have a spouse and whether your children are minors.
- Surviving spouse and at least one minor child: The spouse generally receives one-half of the intestate property. The children share the other half.
- Children but no surviving spouse: The children generally inherit the entire probate estate in equal shares.
- Surviving spouse and only adult children who are also that spouse’s children: The spouse may receive the entire estate under Maryland’s intestacy rules.
- Blended family: The spouse and children may divide the estate under different statutory rules.
This distinction matters. A plan that works for a married couple with only adult children may not produce the same result when minor children or children from a prior relationship are involved.
Who manages a minor’s inheritance?
If a minor inherits property without a trust or other planned arrangement, Maryland may require a guardian of the child’s property or another fiduciary.
That adult may have to:
- Protect the child’s money
- Request court approval for certain transactions
- File reports or accountings
- Follow specific rules for managing or distributing the property
Maryland also allows a parent to appoint a guardian of the person of a minor by will under Maryland Estates and Trusts § 13-701.
A will cannot guarantee that a court will approve an unsuitable person. It does, however, make your wishes known before a disagreement begins.
For Maryland families, that clarity can prevent relatives from arguing over what you would have wanted.
Washington, DC: Children may share with the surviving spouse
Washington, DC has its own intestacy rules. Maryland and Virginia rules do not apply simply because you live nearby.
The relevant statutes are in DC Code Title 19, Chapter 3.
Who inherits in DC?
The outcome depends on the surviving family members.
- Children and no surviving spouse: The children generally share the probate estate equally.
- Surviving spouse and only children shared with that spouse: The spouse generally receives two-thirds, and the children share one-third.
- Surviving spouse and children who are not all the spouse’s children: The spouse and children generally divide the estate under a different split, often one-half each.
- A deceased child: That child’s descendants may receive the share that would have passed to the deceased child.
Again, these rules generally address probate assets. They do not automatically control assets held in a properly funded trust, assets with valid beneficiary designations, or certain jointly owned property.
Why probate can be harder without a plan
Probate is the court process used to settle an estate.
When you die without a will, your family may need to:
- Ask the court to appoint an administrator
- Identify and value your property
- Notify creditors and interested parties
- Pay debts, taxes, and expenses
- Determine who inherits under state law
- Arrange for someone to manage a minor child’s inheritance
- Request court approval for certain actions
Probate is not always disastrous. But it can be slower and more public than your family expects. Court filings and estate information may become accessible to interested parties. Disagreements can also delay distribution.
A will gives the court your instructions. It can name an executor, identify beneficiaries, and nominate a guardian.
But a will usually still goes through probate.
Where probate avoidance fits
A properly prepared and funded revocable living trust may help your family avoid probate for assets owned by the trust. It can also allow assets to remain managed for your children instead of being distributed outright when they reach adulthood.
A trust may be especially useful if:
- You own real estate
- You want more control over when children receive money
- You have a blended family
- You want a backup plan if both parents die
- You want to reduce the need for court involvement
A trust does not replace every document. You may still need a pour-over will, powers of attorney, an advance medical directive, and HIPAA authorization.
The simple fix: Name people and make a plan
You do not need to predict every future problem.
Start with the essentials:
Name a guardian for your minor children.
Choose a primary person and a backup.Name an executor or trustee.
This person handles your estate or trust.Choose how your children receive property.
Consider whether assets should be held and managed instead of distributed outright.Review beneficiary designations.
Retirement accounts and life insurance may pass outside your will.Add incapacity documents.
A Durable Power of Attorney and Advance Medical Directive help if you become unable to make decisions.Update the plan after major life changes.
Review it after marriage, divorce, a new child, a move, or a significant change in your assets.
Estate Plan HQ offers will plans for individuals and couples, along with individual trust plans and couples trust plans.
Each plan is personally drafted and reviewed by a licensed attorney. The plans address core documents, including guardianship nominations, powers of attorney, advance medical directives, and HIPAA authorizations. Trust plans also include a revocable living trust designed to support probate avoidance when assets are properly transferred to the trust.
Do not leave the decision to a statute
If you die without a will, your children may still inherit from you.
But state law: not you: will control the details.
The court may decide who manages their inheritance. If no surviving legal parent is available, the court may decide who raises them. Probate may take longer and require more public court involvement.
A straightforward will or trust plan lets you make the important decisions now.
Not someday.
This article is general information, not legal advice. Guardianship and inheritance rules depend on your specific facts and may change. Speak with a qualified attorney about your family’s situation.