What Families Need to Know After a Death in Virginia

Virginia probate runs through the Circuit Court clerk's office — a relatively streamlined system for uncontested estates. The state's $75,000 small estate threshold covers many personal property situations, and Virginia's enhanced life estate deed (known as a "Lady Bird deed") gives families a powerful probate-avoidance tool for real estate. The state has no estate tax, which simplifies the tax picture for most families. This guide covers every area that matters after a death in Virginia.

Probate
Probate & Small Estate Rules in Virginia

Virginia probate is filed with the Circuit Court clerk in the county or independent city where the deceased lived — not with a judge, which makes uncontested probate in Virginia faster to initiate than in many states. The clerk qualifies the executor (called the "personal representative" in Virginia) and issues Letters Testamentary, which grant legal authority to act on behalf of the estate.

Virginia's small estate affidavit (Virginia Code § 64.2-601) allows any person to claim personal property without opening a formal probate proceeding. The threshold is $75,000 in personal property. The affidavit may be used 60 days after death, and the person claiming the property takes on personal liability for the estate's debts up to the amount received.

Real property cannot be transferred by small estate affidavit. To pass real estate outside probate, Virginia recognizes several options: joint tenancy with right of survivorship, Transfer on Death (TOD) deeds, and enhanced life estate deeds (commonly called "Lady Bird deeds"). A TOD deed allows the owner to name a beneficiary who takes the property automatically at death, with no probate required — a practical tool for homeowners with straightforward wishes.

When formal probate is opened, Virginia has no fixed deadline that cuts off creditors. Instead, six months after the personal representative qualifies, the court can issue an order requiring creditors to show cause against distribution; after the court orders distribution, heirs can still be required to refund valid claims for up to five years (Va. Code § 64.2-556). Waiting at least six months — and the Commissioner of Accounts review — drives Virginia's typical probate timeline. Executor compensation is described by statute as "reasonable" — Virginia does not set a fixed percentage schedule, so fees are negotiated or determined by the court if disputed.

• Small estate affidavit threshold: $75,000 in personal property
• Wait period for affidavit: 60 days after death
• Earliest court-ordered distribution: 6 months after qualification (show-cause order)
• Typical duration: 12–18 months (typical, not guaranteed)
• Executor compensation: reasonable (no statutory schedule)

If you are weighing whether to hire an attorney, see probate lawyer costs by state for typical fee ranges, including Virginia. Executor pay is covered in executor fees by state.

Wills
Will Signing Requirements in Virginia

A valid Virginia will requires the testator's signature plus two competent witnesses who are present at the same time when the testator signs (or acknowledges the will) and who sign in the testator's presence (Virginia Code § 64.2-403). Notarization is not required for the will itself to be legally valid. However, Virginia allows a self-proving affidavit — a notarized statement signed by the testator and witnesses at the time of execution — which eliminates the need for witnesses to appear in court to authenticate the will during probate.

Virginia recognizes holographic wills — wills written entirely in the testator's handwriting and signed, with no witnesses required. While holographic wills are legally valid, they are more frequently challenged in court and should not be treated as a substitute for a properly witnessed will when one can be arranged.

Virginia keeps a narrow exception for people in military service and for seamen or mariners at sea, who may dispose of their personal property under older, less formal rules (Virginia Code § 64.2-408). This rarely applies in estate planning.

If a person dies without a valid will, Virginia's intestate succession statute (Virginia Code § 64.2-200) governs who inherits. See the Intestacy section below for the full order of distribution.

Advance Directive
Virginia Advance Medical Directive

Virginia uses a single combined Advance Medical Directive (AMD) that covers both the appointment of a healthcare agent (the person who makes decisions if you cannot) and the individual's treatment preferences. Virginia does not use separate living will and healthcare proxy forms — the AMD handles both in one document.

To be valid, the AMD requires the person's signature plus two adult witnesses. Witnesses cannot be: the named healthcare agent, any provider of health care to the person, or any employee of a health care facility involved in the person's care. Virginia does not require notarization for the AMD, though some facilities may request it.

Virginia also uses a POLST (Physician Orders for Life Sustaining Treatment) form for patients with advanced illness. The POLST is a physician-signed medical order — distinct from the AMD — that governs immediate treatment decisions such as resuscitation and artificial nutrition. Both documents can coexist; the POLST governs acute care decisions, while the AMD governs broader healthcare preferences and names an agent.

If someone dies without an AMD, Virginia's health care decision-making statute (§ 54.1-2986) establishes a priority order for family members to make decisions on behalf of an incapacitated person: spouse first, then adult children, then parents, then adult siblings, and so on. The agent's authority under an AMD ends at death.

Spousal Rights
Spousal Rights & Intestate Succession in Virginia

Virginia is not a community property state. Each spouse owns their own separate property, and property acquired during marriage is not automatically jointly owned. This means that how assets are titled matters greatly — assets solely in the deceased's name go through probate, while jointly titled assets with survivorship rights pass automatically.

Under Virginia's intestate succession law (§ 64.2-200), the surviving spouse inherits the entire estate — even if there are children — as long as all of the deceased's children and their descendants are also the spouse's. If the deceased had any children (or descendants) who are not the spouse's, the spouse receives one-third and the children and their descendants receive two-thirds.

Even if there is a will, the surviving spouse has important protections:

• Elective share: For deaths on or after January 1, 2017, a surviving spouse may claim 50% of the marital-property portion of the augmented estate (§ 64.2-308.3), regardless of what the will provides. The marital-property portion grows with the length of the marriage, and the augmented estate includes most assets the deceased controlled, not just the probate estate.
• Family allowance: The surviving spouse and minor children are entitled to a family allowance up to $30,000 as a lump sum, or up to $2,500 per month for one year, that is paid before creditors are satisfied (Va. Code § 64.2-309).
• Homestead allowance: Virginia provides a $25,000 homestead allowance for the surviving spouse or minor children (Va. Code § 64.2-311). It is in place of the spouse's share under the will or by intestacy, but if the spouse claims the elective share instead, the homestead allowance, exempt property ($25,000 of household goods and vehicles), and family allowance are added on top of it (Va. Code §§ 64.2-308.3, 64.2-310).

These protections exist independently of what a will says. A surviving spouse in Virginia cannot be completely disinherited through a will alone — the elective share provides a floor.

Vehicle Transfer
Transferring a Vehicle After Death in Virginia

Virginia allows a simplified motor vehicle transfer without opening a formal probate proceeding. Using DMV form SUT 3 (Affidavit of Heirship), an heir can claim a vehicle when no personal representative has been appointed for the estate.

To complete the transfer, the person claiming the vehicle must provide: the completed SUT 3 affidavit, a certified copy of the death certificate, and the vehicle title. The affidavit must state that no personal representative has been appointed and that the affiant is entitled to the vehicle. The transfer can be completed at any Virginia DMV office.

If a formal probate estate has been opened, the personal representative transfers the vehicle title using Letters Testamentary at any DMV location — no special affidavit is needed in that case.

Vehicles that were jointly titled with survivorship rights transfer to the surviving co-owner upon presenting a death certificate to the DMV. No court process is required for jointly owned vehicles with survivorship language on the title.

Medicaid Recovery
Medicaid Estate Recovery in Virginia

Virginia Medicaid, administered by the Department of Medical Assistance Services (DMAS), seeks recovery from the estate of an individual who was 55 or older when the person received medical assistance (12VAC30-20-141). If the deceased received Medicaid for nursing home care or home and community-based services, check whether DMAS has a claim before you distribute assets.

What the state can reach

Virginia does not limit recovery to the probate estate. Its regulation defines the estate to include all real and personal property and other assets the individual held at death, and any other real and personal property and other assets in which the individual had any legal title or interest at death, to the extent of that interest. The definition does not carve out assets that pass by survivorship, beneficiary designation, or trust, so do not assume those are protected. Ask DMAS how a specific asset is treated before you distribute it.

Survivors, hardship, and limits

Recovery can be made only after the death of the individual's surviving spouse, if any, and only when there is no surviving child under 21 or blind or disabled child. DMAS must waive recovery when it would cause undue hardship, which the regulation defines as substantial hardship to the devisees, legatees, heirs, or dependents. It gives special consideration to the sole income-producing asset of survivors and to a homestead of modest value, meaning a home worth 50% or less of the average or median home price in the county or city. Recovery is also waived when the heirs are themselves Medicaid eligible, and Medicare cost-sharing for dates of service on or after January 1, 2010 is not recoverable from dual eligibles.

For how the federal estate recovery rules work, which survivors are protected, and how hardship waivers work, see our guide to Medicaid estate recovery.

Estate Tax
Virginia Estate Tax

Virginia does not have a state estate tax or inheritance tax. The state repealed its estate tax effective July 1, 2007. Only the federal estate tax applies — and at a 2026 individual exemption of $15 million, it affects only the wealthiest estates.

For most Virginia families, estate tax planning is not necessary. The more likely tax issues when settling a Virginia estate involve income taxes on inherited retirement accounts, capital gains basis step-up on inherited assets, and income tax on estate earnings during administration.

If the estate earns more than $600 in income during administration — from rent, dividends, interest, or other sources — a federal estate income tax return (Form 1041) will be required. Income passes through to beneficiaries via Schedule K-1. Virginia also has a fiduciary income tax return (Form 770) for estates earning income from Virginia sources.

Death Certificates
Ordering Death Certificates in Virginia

In Virginia, death certificates are issued by the Virginia Department of Health (VDH) Vital Records office. Each certified copy costs $15 as of July 1, 2026 (previously $12). Additional copies ordered at the same time are also $15 each. Certified copies cannot be substituted with photocopies for legal or financial purposes.

You can order certified copies in three ways:

• Online: Through the VDH Vital Records online portal at vdh.virginia.gov, or through VitalChek (an authorized vendor) with a convenience fee.
• By mail: Submit a completed application form and payment to Virginia Department of Health, Division of Vital Records, P.O. Box 1000, Richmond, VA 23218.
• In person: At local registrar offices in each county. Call ahead to confirm hours and availability.

How many copies do you need? Most families settling a Virginia estate will need 8–10 certified copies. Financial institutions typically require one per account. The DMV, Social Security Administration, pension administrators, insurance companies, real property transactions, and DMAS each typically require one. Order extras at the start — reordering individually later costs the same amount but adds delay.

The funeral home is responsible for filing the original death certificate with the state within 5 days of death. Certified copies are usually available within a few weeks of the date of death.

Intestacy
Who Inherits When There Is No Will in Virginia

If the deceased died without a valid will, Virginia's intestate succession statute (Virginia Code § 64.2-200) determines who inherits. The law follows a specific priority order. Only blood relatives and legally recognized spouses inherit — unmarried partners, friends, and stepchildren (without adoption) receive nothing under intestacy.

If there is a surviving spouse

• Spouse and no descendants: Spouse inherits the entire estate.
• Spouse and descendants, all of whom are also the spouse's: Spouse inherits the entire estate.
• Spouse and descendants, one or more of whom are not the spouse's (e.g., a child from a prior relationship): Spouse receives one-third; the deceased's children and their descendants share two-thirds.

If there is no surviving spouse

• Descendants only: Children inherit in equal shares. If a child predeceased the deceased but had children (grandchildren of the deceased), those grandchildren step into the parent's share by representation.
• No descendants: Estate passes to parents in equal shares.
• No parents: Estate passes to siblings and their descendants.
• No siblings: Estate passes to more distant relatives by the statutory half-blood and kinship rules. If no heirs can be found, the estate escheats to the Commonwealth.

Virginia's intestate rules can produce counterintuitive results — especially in blended families or when an unmarried partner expected to inherit. A will, even a simple one, gives everyone clarity and avoids the statutory defaults.

Small Estates
Virginia Small Estate Affidavit

Virginia's small estate affidavit procedure (Virginia Code § 64.2-601) allows an heir to collect personal property without opening formal probate. It is one of the fastest and least expensive ways to settle a modest Virginia estate.

Eligibility requirements

• The total value of all personal property subject to probate must be $75,000 or less.
• The affidavit cannot be used until 60 days after death.
• There must be no pending application to appoint a personal representative in court.
• Real property (land, houses) cannot be transferred by this affidavit — only personal property qualifies.

How to use the affidavit

The affidavit is presented directly to whoever holds the asset — a bank, the DMV, an employer — rather than filed with a court. The person signing takes on personal liability for the estate's debts up to the value of what they receive. Each asset holder (particularly financial institutions) may have its own additional documentation requirements, so call ahead before presenting the affidavit.

The affidavit must be on the form prepared by the Office of the Executive Secretary of the Supreme Court of Virginia, and it must be made by all known successors (Virginia Code § 64.2-601). For vehicles, use Form SUT 3 at any Virginia DMV office.

Bereavement Leave
Bereavement Leave in Virginia

Virginia does not have a state bereavement leave law for private-sector employees. No state statute requires private employers to provide paid or unpaid time off following a family member's death.

The federal Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid, job-protected leave per year for certain serious health conditions and family care situations — but FMLA does not specifically cover bereavement. It may apply if you needed to care for a critically ill family member before their death, but not for time off taken after death.

What Virginia workers can access in practice:

• Employer policy: Most medium and large Virginia employers offer 3–5 days of paid bereavement leave for an immediate family member. Check your employee handbook or ask HR — this is a voluntary benefit, not a legal requirement.
• Virginia state employees: State employees are covered under the Virginia Department of Human Resource Management's policies, which provide bereavement leave for deaths in the immediate family.
• Accrued paid leave: If you have banked PTO or sick leave, you can typically use it for bereavement even without a specific bereavement policy.
• Unpaid leave: VA law does not prohibit employers from granting additional unpaid leave beyond their standard policy — speak with HR if you need more time.

For a full comparison of every state's rules, see our bereavement leave by state guide.

Resources
Official Virginia Estate Resources

These official sources are the most reliable starting points for Virginia estate matters. Every factual claim in this guide has been checked against state statutes and agency websites.

• Virginia Code Title 64.2 — Wills, Trusts, and Fiduciaries — The primary statute governing probate, wills, intestacy, and small estates in Virginia.
• Virginia Circuit Courts — Locate the Circuit Court clerk in the county or city where probate must be filed.
• Virginia Department of Health — Vital Records — Order certified death certificates; $15 per copy (from July 1, 2026).
• Virginia DMV — Vehicle Title Transfer Procedures — Forms and instructions for transferring a vehicle after a death.
• Virginia DMAS — Medicaid Estate Recovery Fact Sheet — Information on Medicaid recovery claims against a deceased beneficiary's estate.

Frequently Asked Questions

What is the small estate threshold in Virginia?

Virginia's small estate affidavit can be used when personal property totals $75,000 or less (Virginia Code § 64.2-601). It can be used 60 days after death and is presented to asset holders directly — no court filing required. Real property always requires full probate or a recorded deed to transfer.

Does Virginia have a state estate tax?

No. Virginia repealed its state estate tax in 2007. There is also no state inheritance tax. Only the federal estate tax applies, and the 2026 individual exemption is $15 million — affecting very few estates.

Does Virginia recognize holographic wills?

Yes. Virginia recognizes holographic wills — wills written entirely in the testator's own handwriting and signed, with no witnesses required. They are legally valid but more susceptible to challenge. A properly witnessed will is preferable whenever witnesses are available.

How much does a death certificate cost in Virginia?

Certified copies cost $15 each (from July 1, 2026) through the Virginia Department of Health Vital Records. Order online at vdh.virginia.gov or through VitalChek. Most estates need 8–10 copies for financial institutions, government agencies, and property transfers.

Who inherits when there is no will in Virginia?

Under § 64.2-200, the surviving spouse takes the entire estate unless the deceased had children or descendants who are not also the spouse's; in that case the spouse receives one-third and those descendants share two-thirds. Without a spouse, children inherit equally. Parents, then siblings, inherit if no children exist.

Does Virginia require bereavement leave?

No. Virginia has no state law requiring private employers to provide bereavement leave. Most larger employers offer 3–5 days as a voluntary benefit. Virginia state employees have bereavement leave under DHRM policy. Federal FMLA does not specifically cover bereavement.