The Virginia Home After a Death

What “homestead” means in Virginia

Virginia has no homestead devise rule. Its law speaks of the homestead allowance — $25,000 a surviving spouse, else the minor children, takes from the estate (Va. Code § 64.2-311) — of the family allowance and exempt property beside it (Va. Code §§ 64.2-309, 64.2-310), and of the householder's exemption a living debtor claims against creditors (Va. Code § 34-4). Who inherits the home is decided by the will, the trust, the deed or intestacy.

Who gets the home

In Virginia the home passes like the decedent's other property — under the will or the trust, by the deed, or by intestacy (Va. Code § 64.2-200(A)(1)) — subject to the surviving spouse's elective share (Va. Code § 64.2-308.3) and the family's allowances from the estate (Va. Code § 64.2-311):

• With a will or a trust that disposes of the home, it passes as the instrument says — subject to the surviving spouse's right to elect a share of the augmented estate, which counts property in a revocable trust (Va. Code § 64.2-308.3; Va. Code § 64.2-308.6).
• Without one, the home passes by intestacy with the rest of the estate — the whole to the surviving spouse unless the decedent leaves children or descendants who are not also the spouse's, otherwise one-third to the spouse and two-thirds to the children and their descendants (Va. Code § 64.2-200(A)(1)), divided at the closest degree (Va. Code § 64.2-202).
• A home owned with a right of survivorship passes to the survivor outside the will; spouses' property held by the entirety and conveyed to their trusts keeps its immunity from their separate creditors while they stay married and it stays in trust (Va. Code § 55.1-136); a home deeded to the trust passes by the trust's terms (Va. Code § 64.2-772).

Can the home be left by will or by trust? Yes

Virginia places no restriction on leaving a home by will or by trust: the owner may leave it to anyone, subject to the surviving spouse's right to elect a share of the augmented estate, which counts property in a revocable trust (Va. Code § 64.2-308.3; Va. Code § 64.2-308.6).

Creditors and the home after a death

After the owner's death, a home in the estate answers for the decedent's debts in the estate's administration, and the personal representative may publish a notice to creditors (Va. Code § 64.2-508.1). A home in a trust that was revocable at the death answers for the settlor's creditors, the estate's administration costs and the family's allowances only to the extent the probate estate is inadequate, on a written demand to the personal representative within two years after the death (Va. Code § 64.2-747(A)(3)). Liens and mortgages on the home still apply. Whether particular property is reachable is fact-specific attorney territory.

Property taxes

Virginia real property is assessed locally, by its county or city, and no statute in the Virginia statute library reassesses a home because it changed hands at a death; a transfer to a trust is not itself a taxable event. A new owner reviews any local tax relief with the locality's assessor, who determines the effect. A Virginia attorney can confirm what applies.

What should happen next?

Outcomes turn on facts: who survived, how the deed reads, whether minors are involved, and a spouse's election, made within six months after the later of the will's probate or an administrator's qualification (Va. Code § 64.2-308.12). This page is general information, not legal advice. A free role check shows you where you stand, and a Virginia attorney can confirm how the home passes in your situation.

General information about Virginia law, not legal advice.