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How Does Probate Work?

Probate is the process by which a state government enforces the distribution of someone’s estate after they die. But how does probate work?

Well, each state has its own set of rules and regulations for probate, but the basic principles are the same. When someone dies, their personal representative (also known as the executor) collects their assets – meaning all finances, property, and possessions. They then distribute them based on what the deceased’s will says or, if there is no will, based on the default rules of that state.

For the sake of this article, we will describe how probate works in the state of Virginia (Again, each state has its own particular regulations, so if you live in another state some of these rules may look different. However, the overarching goals of what probate does is the same).

The following explanation is particularly helpful for personal representatives who are facing the task of probating an estate.

(Related reading: Where to Start When Your Loved One’s Estate Is a Mess)

How Does Probate Work If There Is No Will?

If a person dies without a valid will, they are considered intestate, and the Commonwealth of Virginia’s probate process laws then determine who receives the deceased’s property. The Court will appoint someone they deem capable as the personal representative who is responsible to see this accomplished.

This list of default beneficiaries goes in order of closeness:

  • Everything goes to the surviving spouse unless there are children or their descendants.
  • If there are children, then one-third goes to the surviving spouse and the remaining two-thirds are divided up among the children.
  • If there is no surviving spouse, the children get everything, followed by the deceased’s parents, siblings, etc.

(Related: What Does Intestacy Mean for Your Estate?)

How Does Probate Work If There Is A Will?

If a person dies with a valid will, the personal representative must take certain steps with the will to ensure it moves through the probate process correctly.

Time Frame:

Although there is no binding time frame for probating a will, the general rule of thumb is that the personal representative should take the initial steps within 30 days after the death.

The personal representative can make an appointment with the clerk or deputy clerk in the relevant jurisdiction. Then, they should take the original signed will and official death certificate, a listing of any assets owned by the deceased, and, if possible, the estimated value of those assets.

Handling:

Every personal representative must take an oath to carry out their duties. They will be expected to determine the value and debts of the estate, pay the bills and taxes, and distribute any leftover assets to the heirs. Since a considerable amount of time and energy is involved in carrying out these responsibilities, they are allowed compensation of up to 5% of the assets they handle.

Taxes:

Once the personal representative files the will, they’ll need to pay any taxes that apply to the estate (out of the estate’s money, not their own). These include a Virginia probate tax of $1.00 state tax per $1,000 of the estate, and $.33 local tax per $1,000 of the estate. A final tax return, personal property tax return, and an estate income tax return must also be filed.

[Related reading: How Does Death Tax Work?]

 

If you’re researching these topics for the first time, we know you will likely have additional questions about how probate works, and we’re happy to help. Schedule your virtual or in-person consultation by clicking here.

Joshua E. Hummer, Esq. is a licensed attorney who has been admitted in both Virginia and West Virginia. He is a graduate of the University of Virginia and has been practicing law in Winchester for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning and estate administration, elder care, and business law.

 

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