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Probate has a bad reputation. It’s deemed confusing, drawn-out, and difficult to navigate. And with complex estates especially, this can be true. But if you have an aerial view, the probate process in Virginia doesn’t have to be overwhelming. In this article, we’re going to explain the probate process in Virginia. While some people can avoid parts of probate depending on their circumstances, we are going to discuss a typical probate process.

Personal Representatives

Before anyone can begin the probate process in Virginia, they must be approved by the court as the personal representative of that estate. If the deceased had a will, it should name the estate’s personal representative. If there is no will,

3 Phases to The Probate Process in Virginia

1. Notice

The first phase of probate is that a personal representative must give notice to the heirs. All heirs have the right to know the estate is being administered. In this case, an heir is anyone who naturally would have inherited from the deceased if they did not have a will. By default, this means the personal representative must notify family members according to closeness, starting with the spouse and children. If the deceased does not have a living spouse or children, they must notify parents, then siblings, etc. until they are able to notify the deceased’s living next of kin (for the full order of estate succession, ).

After sending notice to the heirs, the personal representative must then file an affidavit with the court to state they have done so. They must send notice within 30 days of being appointed and must file the affidavit within four months.

2. Inventory

Next, the personal representative is required to file inventory, which means creating a list of assets the estate owns and then filing this list with their local Commissioner of Accounts. The Commissioner of Accounts is an attorney hired by the courts to review estate accountings and ensure the personal representative is fulfilling their oath.

The inventory list is filed by category according to different asset types, i.e., personal property, such as vehicles and valuables, financial accounts, land, etc.

Inventory is due four months after the personal representative is appointed.

3. Accounting(s)

The last phase, accounting(s), can be ongoing for a time. After filing the inventory, the personal representative is required to give ongoing reports showing what they have done and are doing with the deceased’s property.

Depending on the type of assets they are dealing with, the personal representative may be collecting, liquidating, or consolidating assets, using them to pay expenses, or distributing them according to legal requirements. The accounting(s) is designed to track the money and show that a personal representative is handling the estate correctly. The personal representatives must be able to prove their actions, so keeping records, especially bank account records, is critical.

If it is a large estate, it is likely that the personal representative will have to set up a bank account owned by the estate to take care of all these steps. The commissioner will want to see those statements to know if the personal representative is using the funds appropriately.

This distribution takes time, so there is often more than one accounting. The first one is not due until 16 months after the personal representative is appointed, and it covers the first year. Thereafter, they are due each year, four months after the end of the year.

If the personal representative can show in the first year that they have taken care of everything, they only have to do one, but they have to file as many as it takes to get to the final accounting

After the personal representative has worked with the Commissioner of Accounts and reached the final accounting, the commissioner will review and approve what’s been completed and send it to the court. Once the court accepts the final accounting, the estate is deemed closed and the personal representative has fulfilled their duties.

Things to Consider Before Beginning the Probate Process in Virginia

Navigating probate can be a big job. Because no two estates are exactly the same, it is hard to predict all the details that will need to be taken care of throughout the process. That doesn’t mean it’s impossible, but often, personal representatives benefit from having a probate attorney walk through probate with them.

 

If you or someone you love needs help navigating the probate process in Virginia, give us a call! We’d love to help you.

 

Joshua E. Hummer, Esq. is a licensed attorney in both Virginia and West Virginia. He is a graduate of the University of Virginia and has been practicing law for over 15 years. Josh specializes in estate planning and estate administration, elder care, and business law. He is co-author of the recently published book, “Fearless: Facing the Future Confidently with Relational Estate Planning”, and is passionate about helping others form end-of-life plans that benefit their loved ones and leave their legacy behind. Outside of work, Josh loves reading, traveling, and spending time with his lovely wife and their four vibrant children.

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