The Virginia Probate Process

The Virginia probate process can be difficult to navigate. This comprehensive guide will make probate in Virginia an understandable and manageable process.

Last updated on October 31st, 2018

What is the Virginia probate process?

The Virginia probate process is a legal proceeding that occurs after you die. During probate, a court will decide how to distribute your property, also known as your estate.

The Court seeks to determine whether a last will and testament of the deceased is valid and authentic under the law.[1] Additionally, the estate of the deceased is reviewed for the validity of distribution and inheritance.

In summary, the Virginia probate process is time consuming, but it seeks to ensure everyone is getting their fair share under the guidance of the will.

What leads to the Virginia probate process?

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There are two legal categories that estates of the deceased fall into: “testate”, and “intestate”.

When someone dies testate, there is a will directing how the estate will be handled in probate.

A Virginia will is typically witnessed by two sound-minded individuals. The witnesses sign the will as a testament to the competency of all parties present. Additionally, the Commonwealth of Virginia recommends, but does not require, that a will should be notarized in order to be deemed “valid” in probate proceedings.

A “self-proving affidavit” is optional. It is a document that is notarized and included with the will, which will act to prove that the will is properly formed and witnessed. This eliminates the need for witness testimony when the will goes to probate.

Generally, if you prepare your will with a lawyer, the attorney will also draft the self-proving affidavit.

By contrast, when someone dies intestate, there is no will to direct how the estate should be handled in probate. In this instance, Virginia legislative processes that pertain to estate management will guide probate proceedings and determine who inherits the estate.

What happens during Virginia probate?

The Virginia probate process considers the entire estate of the deceased. This process seeks to:

  • prove that a provided will is the valid last will and testament of the deceased
  • establish a complete inventory and appraisal of the estate
  • dock the debts and taxes of the deceased from the estate, including the court and legal fees accrued in probate proceedings
  • distribute the remaining estate

What does Virginia probate look like?

1. Appointing an estate executor or administrator

First, the estate’s executor is named. This person will be a beneficiary of the estate or named in estate documents. It is normally someone who is aware of the position and responsibilities therein. When there is no will, or an executor isn’t named, the court appoints an administrator to manage the estate while it is in probate.

An administrator is commonly one (or sometimes several) of the beneficiaries of the estate. Once appointed, the administrator must:

  1. Take an oath to perform all required duties honestly and efficiently
  2. Provide a bond (“surety“) in amount equal to the value of the estate

Surety is often waived if the administrator is a beneficiary of the will, or if the administrator is a bank or other financial institution. However, non-Virginia administrators will require surety in order to proceed in probate.

(Note: An executor is not required if the estate is valued at $50,000 or less in the state of Virginia. This includes the transfer of vehicles or joint accounts in banks, savings, or credit institutions.)

Once the administrator accepts the position, they are to give notice to the beneficiaries within 30 days in order to establish their qualifications and abilities to manage the estate.

2. Filing for probate

It is important to note that Virginia does not have probate courts. Virginia probate processes carry through a general circuit court.

Once an executor or administrator has been appointed, their first order of business is to file for probate with the circuit court. To do this, the executor or administrator needs to provide an original copy of the will of the deceased, as well as the death certificate.

The executor files for probate with the circuit court located within the city or county of residency of the deceased.

Probate is commonly handled by the clerk of the circuit court. A judge is appointed to probate in cases of appeal. Appeals are presented to the clerk within 6 months of admittance into probate.

There is no deadline for filing probate, however it is generally recommended that the will is filed with the circuit court within 30 days of the passing of the deceased.

A “commissioner of accounts” is appointed to the probate case to ensure the executor’s position is accurately and efficiently following the Virginia probate process. Commissioner fees are established by the court at the time of appointment, and will vary from case to case.

3. Establishing the estate

Once the executor has filed for probate, it is their responsibility to collect all property and assets within the estate. An inventory is made to determine the gross estimated value of the estate.

Assets included would include:

  • Cash, savings, checking, stocks, shares, securities, bonds, and any other monetary accounts owned by the deceased
  • Personal property (real estate, businesses, vehicles, jewelry, artwork, insurance, etc.)

Often, the most efficient method of listing assets for appraisal is listing each asset with the asset’s description, whether that asset is owned outright or shared (and if shared, the percentage of that share that is owned), and the net value of each asset (including shares) within the estate.

The inventory must be completed and filed within 4 months of filing for probate in order to establish the estate’s worth.

4. Determining liability

Once the estate is inventoried by the executor or administrator, the assets are appraised by the court and the estate is given a gross estimated value. From this value, all debts of the estate and the deceased are deducted, including:

  • Outstanding debts of the deceased
  • Taxes
  • Court/legal fees
  • Assets for distribution to the beneficiaries of the estate
  • Compensation of the executor as set by the commissioner of accounts, not to exceed 5% of the total estate value

If the estate is not enough to supplement the debts against it, the beneficiaries will decided whether or not to sell the estate in order to pay the debts. When assets are sold, there is a redistribution of assets to the beneficiaries.

Creditors and/or relatives listed as beneficiaries must be notified of the probate filing.

Creditors have 6 months from the time of the Virginia probate filing to collect debts against the estate before forfeiting rights to repayment on the debts.

Relatives have 6 months from the time of the Virginia probate filing to “disclaim”, or refuse, the inheritance.

By contrast, relatives can contest the will if they feel that they are being treated unfairly in the division of the estate. However, if the will contains a “no-contest clause,” the relative contesting the will assumes the risk of losing the inheritance.

The inclusion of a “no-contest clause” establishes that if the will is contested and the beneficiary is unsuccessful, the beneficiary voluntarily forfeits their share of the estate’s inheritance. In this case, the inheritance will be granted to the alternate beneficiary, or will revert back into the original estate for redistribution among the remaining beneficiaries.

5. Estate taxes

There are several different tax filings that the Virginia probate process requires, such as:

  • Virginia probate tax
  • Virginia state tax
  • Income tax of the deceased (for the year of death)
  • Personal property tax (for the year of death)
  • Virginia income tax return on the estate (for the year of death)
  • Virginia estate tax return (for the year of death)
  • Federal taxes of the deceased

Taxes are assumed by the estate as liabilities.

(Note: Estate tax is owed if the estate’s gross net value exceeds the state threshold qualification for filing. For Virginia, this threshold is any estate exceeding $50,000 in net value.)

6. Distribution

Once liabilities are deducted from the estate, the remaining assets are distributed to the beneficiaries. Typically, the Virginia probate process will honor the distribution determined by the deceased. To do this, the will needs to be proven “valid”.

Once the will is deemed valid, it is filed and recorded. The Will Books of the circuit court that handled the probate proceedings will contain the official record.

The debts of the estate will determine the assets and value available for distribution. If the debts call for a sale of some or all of the estate, the terms of the will are re-evaluated to compensate for the changes.

Therefore, the original terms of the will will coincide with the laws of Virginia when determining a redistribution of the estate’s assets to the beneficiaries.

How long does the Virginia probate process take?

From filing the will for probate to the distribution of property to beneficiaries, the Virginia probate process can take months or years to settle.

There is no set timeline for the Virginia probate process, but the process is subject to case by case factors and restraints, including:

  • The court’s access to a full inventory of the estate from the executor
  • The court’s ability to appraise the estate in its entirety
  • The deduction of all liabilities from the estate
  • The organization of the estate’s distribution to the beneficiaries

These are individual processes that can take months or years to complete. Organization, proper management, and the efficiency of all parties to reach agreements will ease and hasten the process.

How much does the Virginia probate process cost?

Again, cost is subjective to the probate process. Probate costs are determined by:

  • The cost of hiring a lawyer
  • The compensation of the executor/administrator
  • Court filing fees
  • The cost of hiring an appraiser

Therefore, probate is often a time-consuming and expensive legal process. If the estate is not substantial enough to cover the costs of probate, it will become the responsibility of the beneficiaries.

When is the Virginia probate process beneficial?

Probate isn’t a fast or easy process. However, there are certain instances that can benefit from the processes of probate.

  1. If the estate carries substantial debts against it, probate can help to organize and settle those debts. This approach can help to prevent the beneficiaries from assuming the debts left behind by the deceased.
  2. If the estate carries complex legal and/or financial obligations. Probate can help to sift through those legal obligations and processes with a lowered risk of facing legal repercussions.
  3. If there is likely to be a family dispute over the distribution of the estate’s assets, probate may be a wise choice. The Virginia probate process allows for beneficiaries and family members to contest the will if they feel that they are being treated unfairly. In kind, probate allows the beneficiaries an opportunity to disclaim their portion of the estate inheritance.

What happens to the estate if there is no will?

When a will is absent, inheritances in Virginia probate are distributed to family members who are the de facto beneficiaries of the estate. Alternatively, when one of the qualifying beneficiaries is absent due to death or other legal reasons, the estate will pass on to the next in the line of succession.

In Virginia, these beneficiaries include:

  1. A living spouse
  2. Children and grandchildren
  3. Living father and/or mother of the deceased
  4. Siblings of the deceased

Virginia law does not extend the inheritance process beyond siblings for intestate proceedings.

Do I need a lawyer?

Technically, no. Practically, yes.

The Virginia probate process is lengthy, time-consuming, and often filled with complex legalese. If you are handling an estate that has multiple facets to address, seeking legal advice may be wise.

An attorney can help you to decide which courses of action to take in drafting, filing, contesting, validating, or settling a will. They can even advise you on how you may want to approach settling debts and taxes on the estate.

Ultimately, the Virginia probate process is tricky to navigate. Consulting with a lawyer is a great way to ensure that you’re on the right track to settling an estate and protecting your assets.

[1] VCCA 2015, p. 2

[2] Id.

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