Last updated on October 31st, 2018
Virginia Probate Lawyer
A Virginia probate lawyer is typically an estate or trust lawyer who additionally offers probate services. No state requires you to hire a probate lawyer, but some circumstances encourage additional legal guidance.
What follows are common instances in which consulting an attorney benefits your probate case.
Interpreting the Will
Being named the beneficiary of an estate that is covered by a poorly-worded will is undesirable. The probate process seeks to prove the will as the valid and conscious wishes of the decedent. Unclear language in the will complicates that process.
Hiring a Virginia probate lawyer may help you clarify the language of the will. A clearer interpretation of the will makes it easier to argue the validity of the will once the estate reaches probate.
A decedent who dies intestate leaves behind an estate that is not managed by a will or a trust. Therefore, it is through the probate process that the estate is divided and distributed to the succeeding legal heirs.
Virginia intestate succession is laid out in the Virginia Code, and acts as an inheritance guide for estates left without a will. Consider your position as a possible beneficiary. As a child from a previous marriage, you are entitled to 2/3 of the estate, or if you have acted as caretaker to the decedent and they verbally bequeathed you as a beneficiary, you are entitled to argue your claim in probate.
Hiring a probate lawyer in cases of intestate succession is crucial to the outcome of your petition. Intestate succession law is clearly defined by the Virginia Code, and if left uncontested, stands as the course of inheritance.
However, if you have a valid position that is arguable in court, you are encouraged to hire a Virginia probate lawyer that will argue your case.
Contesting the Will
Contesting a will is a common probate issue. Hiring a Virginia probate lawyer is especially beneficial when the will’s validity is being contested by family or a beneficiary.
As a beneficiary, hiring a probate lawyer helps you to protect your inheritance. Conversely, hiring a probate lawyer benefits your contest to the will. Your Virginia probate lawyer helps you to accurately interpret the will and provides a reasonable argument that is provided to the court for contest.
Keep in mind that some wills contain an additional “no-contest clause,” which exists to dissuade contestation. A no-contest clause states that any beneficiary is free to contest the will. However, if unsuccessful, you forfeit your inheritance under the will once it is validated.
Therefore, contesting a will that contains a no-contest clause is risky, but possible. Consulting a probate lawyer is highly recommended in cases that include complicated legal clauses.
Income Tax Disputes
Inheriting property in Virginia is tax free – there is no inheritance tax imposed by the state. However, you are still liable to pay any other taxes left by the decedent, including income tax.
When the decedent dies, they leave behind considerable expenses, including unfiled taxes. As a beneficiary, the estate you are inheriting is liable to assume those taxes. The executive or administrator of the will is responsible for filing the income taxes of the decedent for the fiscal year of their death. If any taxes are due, your inheritance assumes those taxes and fees.
Finding yourself liable to pay the income tax of the decedent who bequeathed an estate to you is a tricky legal position. You want to protect your interests in your inheritance, but you have a financial responsibility to the state that you must oblige. Hiring a Virginia probate lawyer helps you sort out any tax disputes that may arise while protecting your interests in your inherited estate.
State Probate Procedure
Each state establishes probate procedures for estates located within that jurisdiction. For example, the Virginia code has established probate procedures on estates located within the Commonwealth.
Your individual circumstances and the details of your inheritance determine how probate procedure progresses. Your inherited estate may appear simple to settle, but consulting a lawyer that knows the state procedure pertaining to your inherited property is recommended.
Inheriting an estate with physical and tangible property is easier to settle in probate, barring contest from beneficiaries or other tax issues. However, inheriting an estate that contains special property, such as a farm or a family business, takes additional care.
Hiring a probate lawyer on these estates provides you with the expertise necessary to inherit that kind of property. Your probate lawyer helps you file the necessary paperwork on those properties, as well as determining your best course of action in accepting or disclaiming your inheritance.
When you inherit an estate, you have the ability to disclaim, or refuse your inheritance. Considering whether or not you want to disclaim an inheritance is a big decision to make, and consulting with a probate attorney is helpful in making that decision.
Upon reviewing the estate, your Virginia probate lawyer is able to advise you on whether it is more beneficial to accept the inheritance or to disclaim it.
Settling Estate Debts
Just as your inherited estate is liable to assume taxes against it, the estate is also liable to settle any outstanding debts of the decedent.
Mortgages, loans, outstanding payments, and any other debts remaining from the decedent’s lifetime qualify for a “lien”, or a federal hold against the estate. A lien prevents you from inheriting property until the debt is settled.
Creditors are notified of the decedent’s death, and have a six month window in which to file collections against the estate. Failing to file collection within those six months disqualifies the creditor from collecting against the estate.
A lien against the estate is lifted once there is certified payment of outstanding estate debts. Once the lien is lifted, you inherit the estate property.
Minor Property Transfers
Minor property inheritance in Virginia is limited to a value between $2,500 and $5,0oo, dependent upon the estate’s location and court jurisdiction. Therefore, an estate that exceeds a the minor inheritance threshold cannot be inherited by the minor until the age of 18.
Inheriting estate property as a minor is restricted by value in Virginia, requiring a property guardian to be assigned to the estate. Once the minor reaches adulthood, the estate is inherited in full unless the estate documents instruct otherwise.
It is necessary to appoint a property guardian to the minor’s estate. The court can issue an administrator of its choice to manage the estate. However, a probate lawyer is able to help you secure a property guardian that is a surviving family member or other individual close to the minor who is willing and responsible enough to manage the estate.
Hiring a probate lawyer comes with one major benefit across the board: handling all legal paperwork on behalf of your probate case. While there are documents you will need to fill out, sign, and return, your probate lawyer handles the rest. Unless otherwise stated by the clerk or judge, your probate lawyer handles your paperwork with the court.
(Note: You are liable for filing taxes on the estate. Filing any additional paperwork that is required by the court and specified to be personally returned is your responsibility as a beneficiary. Your probate attorney is not liable for missed deadlines, incomplete, or improperly filed casework. Delays in probate caused by a document that you are personally responsible for filing is not a liability of your probate lawyer.)
The probate process is undoubtedly tricky, but hiring a Virginia probate lawyer is a clarifying step towards settling your inheritance. Hiring a probate lawyer isn’t required for state probate procedures. However, it is a recommended addition to an already complicated probate case.
Schedule a consultation with our estate planning attorney to assess your case and establish a probate plan.