Virginia Probate Process
Somewhere along the line you’ve probably heard the word “probate,” and most likely, assumed it had a negative connotation. Probate, however, isn’t something to be afraid of. It is simply a process that all wills need to go through.
Let’s explore the Virginia probate process to see if we can help explain it.
What is Probate?
According to the Virginia Court Clerk’s Association,
“Probate is the official proving and recording of the will as the authentic and valid last will and testament of the deceased.” It is probated, or verified, in the locality where the deceased owned a home, and if they don’t own a home, where they died or had any estate.
Since Virginia does not have a separate probate court, the will is normally probated by the Clerk of the Circuit Court or a deputy clerk in the city or county where the deceased resided.
What is the Virginia Probate Process if Someone Dies Without a 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.
Virginia designates a “course of descents,” of who, in order, should receive a person’s estate after funeral expenses, debts and administrative costs are paid.
It begins with everything going 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: Virginia Probate Laws
What are the Time Frame and Steps for Virginia Probate Process Filing Requirements?
Although there is no specific time frame for probating a will, the initial steps should be taken within 30 days after the death.
You should make an appointment with the clerk or deputy clerk in the appropriate jurisdiction. Take the original signed will and certified death certificate, along with a listing of any and all assets owned by the deceased, and if you can, an estimated value of those assets. You may be given some forms to fill out prior to your appointment that will help.
The will usually names an executor/administrator. If there is no will or no named executor, the court may appoint an administrator. This person must take an oath to carry out the duties of the administrator, which are to determine the value and debts of the estate, pay the bills and taxes, and distribute the leftover assets.
Since there is a considerable amount of time involved, the executor or administrator is allowed to be compensated generally up to 5% of the assets handled.
Related: Virginia Probate: An Overview
When the will is filed in Virginia, a number of taxes need to be paid. They include a Virginia probate tax of $1.00 state tax and $.33 local tax per $1,000 of the estate, state taxes, and Federal taxes. In addition, the final tax return, personal property tax return, and an estate income tax return must be filed.
For Questions about the Virginia Probate Process, Contact the Law Office of Joshua E. Hummer
We provided just a brief overview of the Virginia probate process here, and we know you will likely have additional questions. Know that we are here to help as Estate Law specialists. We can help you create your will or trust documents, and answer any questions you might have about estate planning and administration.