Probate

Probate is the official proving of a will as the authentic and valid last will and testament of a deceased person by admitting the document to record in the appropriate Clerk's Office. Probate of a decedent's estate should take place in the City or County where the deceased person resided at his death. If the decedent died in a nursing home or similar institution, then that person's residence is presumed to be where he or she resided prior to becoming a patient at such institution. It becomes necessary to probate an estate when the decedent owns assets (personal or real estate) solely in his name, i.e., assets that do not have a joint or co-owner with rights of survivorship.

To ensure quality assistance, please call and make an appointment with a Probate Clerk before coming in to probate an estate.

Frequently Asked Questions Regarding Probate:

• Where should the will be probated?

Virginia has no separate probate court. The will should be probated in the circuit court of the city or county where the deceased resided. Usually the Clerk of the Circuit Court or a deputy clerk handles the probate of wills and the circuit court judge is not involved. However, any person interested in the will may appeal to the judge within six months of the order of the clerk admitting a will to probate.

• What does dying "testate" or "intestate" mean?

A person dies testate if they left a valid will. One dies intestate if the deceased person does not have a valid will at the time of death. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent’s property.

• Who inherits the property of a person who dies intestate (person dying without a will)?

If a person dies without a will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts and cost of administration):

• All to the surviving spouse, unless there are children (or their descendants) of someone other than with the surviving spouse, in which case, one-third passes to the surviving spouse and the remaining two-thirds is divided among all children.
• If no surviving spouse, all assets pass to the children and their descendants.
• If none, then all assets pass to the deceased's father and mother, or the survivor.
• If none, than all passes to the deceased's brothers and sisters or their descendants.
• There are further contingent beneficiaries set out in the Virginia statutes. (VA Code §64.1-1, as amended.)

4. Is the appointment of an executor or administrator and the formal administration of an estate always required?

The appointment of an executor or administrator is not always required. No formal administration is usually required when the estate is small (under statutory amount) and for payment of small sums by certain government, occupational and banking agencies.

Additionally, qualification is not necessary to transfer a motor vehicle title. In these circumstances, the will is probated and nothing further is required. Other instances where formal qualification or administration may not be required are the cases of joint accounts with rights of survivorship in banks, savings and loan associations or credit unions.

In most cases, the payment of life insurance proceeds to a named beneficiary and the transfer of real estate to a surviving spouse or other person where there were survivorship rights in the deed occur outside the estate.

• What are the time limitations regarding probate?

There is no set time frame in which a will must be probated or an estate administered. The death of a loved one is a particularly emotional, stressful and busy time. The probate of the will can usually wait until a week or so after the funeral. It is recommended that the initial steps in the estate process start within 30 days after death. If any questions exist, call your attorney or the Circuit Court Clerk's Office.

If the decedent died with a Will, what should I bring to the Clerk's Office?

• It is recommended that an appointment be made with the Clerk or the assigned probate clerk.
• The original Will.
• A certified copy of the death certificate or copy of the obituary.
• In some instances, it may be necessary for witnesses to the Will to be present, or depositions of witnesses may be required. The Probate Clerk will examine the Will for a self-proving clause; a determination cannot be made over the telephone.
• A named executor residing outside of Virginia who wishes to be appointed as executor must bring a Virginia resident to the probate appointment to either co-qualify or be designated as a registered agent.
• The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate.
• The names, ages and addresses of the heirs-at-law. The heirs-at-law are not necessarily the beneficiaries of the Will. Heirs-at-law are determined by kinship to the deceased and are set by Virginia law.
• If the executor named in the Will does not wish to serve, a renunciation letter must be presented to the Clerk signed by the named Executor. If the named executor is deceased, a death certificate is required.
• A check or cash for which to pay fees.
  *All fiduciaries must be bonded. State statutes and certain language contained in the Will govern whether the bond is with or without surety. The Probate Clerk will set the appropriate bond at the time of qualification.

If the decedent left no Will, what should I take to the Clerk's Office?

• It is recommended that an appointment be made with the Clerk or the assigned probate clerk.

• A certified copy of the death certificate.
• Names, ages and addresses of heirs-at-law. The heirs-at-law are determined by kinship to the deceased and are set forth in the Code of Virginia.
• A non-resident of Virginia who wishes to be appointed as Administrator must bring a Virginia resident to the appointment to either CO-qualify or to be designated as a registered agent.
• The approximate value of the solely owned assets of decedent for both personal property (stocks, bond, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate.
• Check or cash to pay fees.
  * All fiduciaries must be bonded. State statutes govern whether the bond is with or without surety. The Probate Clerk will set the appropriate bond at the time of qualification

• What are the basic duties of an executor or administrator?

The duties begin with taking possession of the deceased person's property over which the fiduciary (executor or administrator) has control. The fiduciary must determine the assets and liabilities of the estate. The payments of debts, and then, according to the direction of the will and the laws of the State of Virginia, the sale of or distribution of the property must be accomplished. The fiduciary must also give written notice of qualification or probate to the heirs and beneficiaries of the estate within 30 days after qualification. Generally, the fiduciary must file a complete inventory of the assets in the estate within four months of qualification with the Commissioner of Accounts (a local person appointed by the Circuit Court to oversee and ensure that estates are properly handled.) Finally, the fiduciary must make an accounting with the Commissioner of Accounts on a yearly basis until a final accounting can be made. Often, a first and final accounting can be made at the conclusion of the first year following qualification.

Where can one go for more information or answers to specific questions?

• Talk to the Clerk of the Circuit Court or the probate clerk. They will give you specific instructions at the time of probate.
• Talk to your attorney.