Probate in the Commonwealth of Virginia
The term “probate” is derived from the Latin term meaning “to prove the will”. Probate refers to the process where a court oversees the administration of a deceased person’s estate. The purpose of the probate process is to ensure that any final bills and expenses are paid, including any taxes owed, and any remaining assets are distributed to the beneficiaries named in a will. Probate may occur even if there is no will; if the decedent died without a will, the decedent is said to have died “intestate”, and the decedent’s estate will be distributed to the decedent’s heirs as defined in Title 64.2 of the Code of Virginia.
Determining if Probate is Necessary
Probate is generally required if the decedent:
- Owned property titled solely in the decedent’s name.
- Owned personal property titled solely in the decedent’s name, the value of which exceeds the maximum limits for property that can be transferred without probate, as discussed below.
Probate is generally not required if the decedent:
- Owned real property that will pass by right of survivorship to the spouse or other person named on the deed.
- The decedent owned personal property that will pass by right of survivorship to the spouse or other person named on the title.
- The decedent owned life insurance or retirement benefit accounts, the disposition of which is controlled by the beneficiary designation. However, if the decedent failed to name a beneficiary, or the named beneficiary is deceased and a contingent beneficiary is not indicated, probate may be necessary.
Small Estates May Not Require Probate
The decedent’s assets may be transferred by affidavit procedure without having to go through the probate process if the following qualifications are met:
- The value of the entire personal probate estate is $15,000 or less;
- A 60 day period has passed since the death of the decedent, and no one has filed to be appointed executor or administrator of the estate;
- The will, if there is will, has been offered for probate and a list of heirs filed; and
- The person seeking to transfer the assets is entitled to receive the assets, and states why they are so entitled to receive the assets.
If all of these conditions are met, the person seeking to claim the asset may submit an affidavit to the person or entity in possession of the asset, with a request that the asset be transferred. If the person or entity in possession refuses to transfer the asset, the claimant can initiate a court proceeding seeking recovery of the asset.
Helpful Probate Resource
The Wills, Trusts and Estates Section of the Virginia Bar Association has published a helpful Guide to the Administration of Decedents’ Estates in Virginia. The guide outlines the steps involved in probating a will, payment of claims and debts, filing of tax returns, and carrying out other duties and responsibilities of a personal representative of a decedent’s estate.
Seek Experienced Legal Representation
Serving as the personal representative of a decedent’s estate involves many fiduciary duties and responsibilities. It is important to seek the guidance and representation of an experienced Virginia probate attorney.