PROBATE IN VIRGINIA

What is Probate?

Probate is the official proving of the will as the authentic and valid last will and testament of the deceased.

Where should the will be probated?

Virginia has no separate probate court. The will should be probated in the Circuit Court of the city or county where the decedent owned a home; or if none, where the decedent owned any real estate; or if none, where the decedent died or has any estate. If the decedent died in a nursing home or similar institution, then that person's residence is presumed to be where he or she resided prior to becoming a patient at such home.

Who in the Circuit Court handles the probate of wills?

Usually, the Clerk of the Circuit Court or a deputy clerk handles the probate of wills and the Circuit Court Judge is not involved. (Code of Virginia §64.1-77, as amended.) However, any person interested in the will may appeal to the Judge within six months of the order of the clerk admitting a will to probate. (Code of Virginia §64.1-78, as amended.)

What does dying "testate" or "intestate" mean?

A person dies testate if they left a will. One dies intestate if that person does not have a valid will at the time of death. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent's property.

Who inherits the property of an intestate (person dying without a will)?

If a person dies without a will, Virginia law provides a course of descendants as follows (after payment of funeral expenses, debts and cost of administration.)

All to the surviving spouse, unless there are children (or their descendants) of someone other than the surviving spouse in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children.

If no surviving spouse, all passes to the children and their descendants.

If none, then all goes to the deceased's father and mother or the survivor.

If none, then all passes to the deceased's brothers and sisters and their descendants.

There are further contingent beneficiaries set out in the Virginia statutes. (Virginia Code §64.1-1, as amended.)

Is the appointment of an executor or administrator and the formal administration of an estate always required?

The appointment of an executor or administrator is not always required. If such is the situation, no formal administration is necessary. This is usually true where the estate is small (under the statutory amount set by law) and for payment of small sums by certain government, occupational, and banking agencies.

In these circumstances, the will is probated (proved and recorded in the Wills Books of the Circuit Court) and nothing further is required. Other instances where formal qualification or administration may not be required are joint accounts with right of survivorship in banks, saving and loan associations, or credit unions. Information regarding transferring a motor vehicle title may be obtained from the Department of Motor Vehicles.

In most cases, the payment of life insurance proceeds to a named beneficiary and the transfer of real estate to a surviving spouse or other person where there were survivorship rights in the deed occur outside the estate.

When should I probate the will or, if there is no will, seek to be appointed administrator?

There is no set time frame in which a will must be probated or estate administration must be started. The death of a loved one is a particularly emotional, stressful, and busy time. The probate of the will can usually wait until a week or so after the funeral. It is recommended that the initial steps in the estate process start within thirty (30) days after death. If any questions exist, call your attorney or the Circuit Court Clerk's Office.

What should I take with me to probate a will or to qualify on an estate?

First, the original will must be taken to the Clerk's Office of the Circuit Court in your local jurisdiction. It is recommended that an appointment be made with the clerk or a deputy clerk. Second, the person offering the will for probate or seeking to qualify should know all the assets owned by the deceased and, as accurately as possible, the value of those assets. A copy of the death certificate should also be taken to the Court. This document contains much of the information that will be needed by the Clerk or deputy clerk assisting you to complete the Probate Information Form. Forms require Adobe Acrobat.

What are the basic duties of an executor or administrator?

The general responsibilities of an executor or administrator are:

Pay all probate taxes due to the Clerk of the Circuit Court.

Provide written notice of qualification or probate to certain persons within 30 days of the date of qualification.

File affidavit, under oath, in the Clerk's Office stating the names, addresses, and when notices of qualification or probate were mailed or delivered.

Ascertain and take possession of the deceased person's property over which the executor or administrator has responsibility or control, determine the liabilities (debts) of the estate and the value of the estate over which the fiduciary does not have control, see to the payment of debts of the deceased and the estate (including taxes) and the sale or distribution of the property of the estate in accordance with the dictates of the will and the law of Virginia.

Keep assets under his or her control as executor or administrator separate from the executor/administrator's individual and personal assets.

Exercise reasonable care in investing and selling assets and paying debts with funds under the executor/administrator's control.

File an Inventory with the Commissioner of Accounts within four months of qualification as executor or administrator.

File a Settlement of Accounts or a Statement in Lieu of Settlement of Accounts with the Commissioner of Accounts within sixteen months of qualification as executor or administrator.

File any individual or fiduciary income or estate tax returns required by state or federal government.

How may the Commissioner of Accounts be contacted?

The Commissioner of Accounts for the County of York and City of Poquoson is D. Wayne Moore. His office in the Courthouse at 300 Ballard Street, Yorktown, Virginia, is open on Tuesdays, Wednesdays, and Thursdays from 9:00 a.m. to 4:30 p.m. His mailing address is P.O. Box 291, Yorktown, Virginia 23690, and his telephone number is 757-890-4173.

Is an executor or administrator compensated?

The administration of an estate generally requires a fair amount of time and energy. Compensation is allowed. The Commissioner of Accounts must approve the compensation.

What taxes are to be paid?

At the time of filing the will, the probate tax must be paid. ($1 per $1,000 value of the estate. For Example: If the estate value is $50,000, then the State tax would be $50.) York County and the City of Poquoson do not collect a local tax on estates. There are also recording fees at the time of probate.

Where can one go for more information or answers to specific questions?

Prior to coming in, please call one of the deputy clerks of the Probate Department of the Circuit Court Clerk's Office at (757) 890-4106, who will give you specific instructions regarding what you need at the time of probate.

Additional useful information may be found at the Virginia Bar Association website.