What happens to real property in Virginia when the owner dies without a will or descendants?
When a person dies without a will, the real estate passes by “intestate succession” in accordance with Virginia Code § 64.2-200. The Code describes various scenarios.
For example, if a man/”decedent” dies without a will, and no spouse, and his parents are deceased and all but 1 of his 8 brothers and sisters are deceased, then the real estate passes to the siblings and their descendants. See Virginia Code § 64.2-200(A)(4)
Question: What if the holder of 7/8 of the property wants to sell and the holder of 1/8 does not want to sell?
Answer: The holder of 7/8 can sell his interest leaving the holder of 1/8 still having that interest in the property. Alternatively, the holder of 7/8 interest may file a partition suit and force the sale pursuant to Virginia Code § 8.01-81. Warning: The benefit to the 1/8 interest holder may be diminished by the cost of the sale and attorneys fees.
The Court has the power to order the sale of real estate:
If the court determines . . . that the land is not susceptible to division in kind, the court is given broad powers to deal with the subject as the interests of the parties and the circumstances of the case may require. Stamps v. Williamson, 190 Va. 145, 56 S.E.2d 71,” cited with approval in Cauthorn v. Cauthorn, 196 Va. 614, 624, 85 S.E.2d 256, 261 (1955).
§ 8.01-81. Who may compel partition of land; jurisdiction; validation of certain partitions of mineral rights; when shares of two or more laid off together
Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction, shall order partition in kind if the real property in question is susceptible to a practicable division and may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, executors with the power to sell, coparceners and lien creditors.
Any two or more of the parties, if they so elect, may have their shares laid off together when partition can be conveniently made in that way. If the court orders partition in kind, the court may require that one or more parties pay one or more parties’ amounts so that the payments, taken together with the court-determined value of the in-kind distributions to the parties, will make the partition in kind just and proportionate in value to the fractional interests held. If the court orders partition in kind, the court shall allocate to the parties that are unknown, unlocatable, or the subject of a default judgment a part of the property representing the combined interests of such parties as determined by the court, and such part of the property shall remain undivided.
All partitions of mineral rights heretofore had are hereby validated.