Most parents would rather not think about this question. But if you have minor children and no will, it may be the most important question you ever ask. Dying without a will — what Virginia law calls dying “intestate” — means the state makes decisions that should be yours. That includes who raises your children, who handles their money, and on what terms they receive it.

Here is exactly what happens when a Virginia parent dies without a will, and what you can do to take back control.

A Judge — Not You — Will Decide Who Raises Your Kids

Without a will, no one is legally designated to care for your minor children. A Virginia court will step in and appoint a guardian, someone the court believes acts in the children’s best interest. The problem: “best interest” is determined by a judge who has never met your family, doesn’t share your values, and has no idea who you’d choose.

Extended family members, grandparents, aunts, uncles, adult siblings, may petition the court for guardianship. If more than one person steps forward, the result can be a contested proceeding: stressful, expensive, and entirely public. Your children’s futures become the subject of a courtroom dispute.

In the worst case, if no surviving parent is present and no family member comes forward immediately, your children could end up in temporary foster care while the court process plays out.

The fix is simple: a will with a guardianship designation names exactly who you want to raise your children, and gives the court a clear directive to follow.

Your Assets Go to Your Children — But Not the Way You’d Expect

Under Virginia intestacy law, the state determines who inherits when there is no will. If you are married, your spouse typically inherits. If you have children but no spouse, your children inherit your estate.

Here is the catch: minor children cannot legally own or manage assets directly. A court will appoint a conservator to manage that money until each child turns 18. The conservator may not be who you would choose. It could be someone you wouldn’t trust with a large sum, or someone your children barely know.

Then, at 18, your children receive everything outright, with no guidance, no restrictions, and no protection. Most 18-year-olds are not equipped to responsibly manage a significant inheritance.

A will with a testamentary trust provision or revocable trust changes this entirely. You name the person who manages the money. You set the terms — for example, funds held until age 25, or released earlier only for education or a home purchase. The assets work the way you intend, not the way the state defaults.

What If the Other Parent Is Still Alive?

If both parents share legal custody, the surviving parent typically assumes full custody automatically — no court proceeding required. In many families, that’s the intended outcome.

But consider these scenarios: What if the other parent is deceased? What if they were uninvolved, or had their parental rights terminated? What if they are not the person you would choose to raise your children?

Without a will, you have no say in what happens next. A court decides. Even if you are confident the other parent would take custody, a will still lets you name a backup guardian, someone who steps in if both parents are gone, and controls what happens to your assets regardless of custody arrangements.

One Document Changes Everything

A will with a guardianship designation is the single most important document a parent with minor children can have. It does three things: it names who raises your children, it names who manages their money, and it sets the terms for how and when that money is distributed.

This not a complicated arrangement reserved for wealthy families. For most young parents, a and testamentary trust or revocable trust can be prepared in one or two meetings with an estate planning attorney.

You do not need to be wealthy to need a will. You need to be a parent.

While You’re At It — Don’t Forget These

A will is the foundation of any estate plan for parents with minor children. But a complete plan also includes a few supporting documents that cover situations a will alone cannot:

• Durable Power of Attorney — names someone to handle your finances if you are incapacitated but still living
• Healthcare / Advance Medical Directive — names someone to make medical decisions for you and documents your wishes in writing

These documents work together. A will handles what happens after you’re gone; a power of attorney and healthcare directive handle what happens if you’re unable to make decisions for yourself. Neither replaces the other.

Don’t Leave This Decision to a Judge

No one wants to think about leaving their children behind. But the greatest act of love you can give them is making sure they are protected, no matter what. Naming a guardian, securing their inheritance, and putting the right people in charge of their care are decisions you can make today. Once you’re gone, that window closes.

Creating a will is simpler and more affordable than most people expect. You don’t need a complicated estate or a team of lawyers. You need a clear plan and someone you trust to put it in writing.

At Smith, Barden, Bradley & Wells, PC, we help Virginia parents put the right protections in place for their families. Contact us today to schedule a consultation.