What is Probate?

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. If such is the situation, no formal administration is necessary. This is usually true where the estate is small (under the statutory amount set by law) and for payment of small sums by certain government, occupational, and banking agencies).

Additionally, qualification is not necessary to transfer a motor vehicle title, if the motor vehicle is paid off. In these circumstances, the will is probated (proved and recorded in the will books of the Circuit Court), and nothing further is required. 

Other instances where formal qualification or administration may not be required are joint accounts with the right of survivorship in banks, saving and loan associations, or credit unions.

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

What is dying intestate?

A person dies testate if they left a will. A person dies intestate if they do 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.

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

Prior to coming in, please call one of the Deputy Clerks of the Probate Department of the Circuit Court Clerk's Office at 757-385-8831. They will give you specific instructions regarding what you need at the time of probate.

What taxes are to be paid?

At the time of filing the will, the probate tax must be paid. ($1 State tax and 33 cents local tax, per $1,000 value of the estate - Example: If the estate value is $50,000, then the State tax would be $50 and the local tax would be $16.67). There are also recording fees at the time of probate.

Is an executor or administrator compensated?

The administration of an estate generally requires a fair amount of time and energy. Compensation is allowed. The commissioner of accounts must approve the compensation.

What are the basic duties of an executor or administrator?

Perhaps the most important duty is to ascertain and take possession of the deceased person's property over which the executor or administrator has responsibility or control. 

Further, the fiduciary (executor or administrator) must determine the liabilities (debts) of the estate and determine the value of the estate over which the fiduciary does not have control (for tax-accounting reasons). 

Additionally, the fiduciary must see to the payment of debts of the deceased and the estate (including taxes) and the sale or distribution of the property of the estate in accordance with the dictates of the will and Virginia law. 

Generally, the fiduciary must file a complete inventory for the estate within four months of qualification with the commissioner of accounts. The commissioner of accounts is a local person (generally an attorney) appointed by the Circuit Court to oversee and ensure that estates are properly handled. 

The fiduciary must also give written notice of qualification or probate to the heirs and beneficiaries of the estate or those who would have been the heirs, within thirty days after qualification or probate.

Finally, the fiduciary must make an accounting (generally a list of all assets of the estate, all distributions, and all assets on hand) 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.

What should I take with me to probate a will or to qualify on an estate?

First, the original will must be taken to the Clerk's Office of the Circuit Court in your local jurisdiction. It is necessary that an appointment be made with the clerk or a deputy clerk. Second, the person offering the will for probate or seeking to qualify should know all the assets owned by the deceased and, as accurately as possible, the value of those assets. 

A copy of the death certificate should also be taken to the Circuit Court Clerk's Office. This document contains much of the information that will be needed by the clerk or deputy Clerk assisting you.

When should I probate the will or, if there is no will, seek to be appointed administrator?

There is no set time frame in which a will must be probated or estate administration must be started. The death of a loved one is a particularly emotional, stressful, and busy time. If any questions exist, call your attorney or the Circuit Court Clerk's Office.

Who inherits the property of an intestate (a person dying without a will)?

If a person dies without a will, Virginia law provides a course of descendants 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 the surviving spouse in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children.
• If no surviving spouse, all passes to the children and their descendants.
• If none, then all goes to the deceased's father and mother or the survivor.
• If none, then all passes to the deceased's brothers and sisters and their descendants.

There are further contingent beneficiaries set out in the Virginia statutes (Virginia Code Annotated §64.1-1).

Who in the Circuit Court handles the probate of wills?

Usually, the clerk of the Circuit Court or a deputy clerk handles the probate of wills, and the Circuit Court judge is not involved. (Virginia Code Annotated §64.1-77) However, any person interested in the will may appeal to a judge within six months of the order of the Deputy Clerk admitting a will to probate (Virginia Code Annotated §64.1-78).

Where should the will be probated?

Virginia does not have a separate probate court. The will should be probated in the Circuit Court of the city or county where the decedent resided or where the decedent owned real estate; or if none, where the decedent owned any real estate; or if none, where the decedent died or has any estate. 

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 home.

Please call 757-385-8831 to make an appointment.