A Complete Guide to Virginia Probate

Patricia TichenorLegal

virginia probate - last will and testament document

Every state has its own rules, regulations, and requirements for probate court. If this is your first time dealing with — or being involved in — probate, there are several pieces of information you should know about Virginia probate court.

In this guide, you’ll learn about the Virginia probate court process, what probate is, and receive a basic understanding of your duties as estate executor in the state of Virginia.

What is probate and when is it required?

Probate is a legal procedure that carries out a deceased person’s last Will and testament. An executor, usually a spouse or loved one, will be appointed to gather assets, pay taxes and debts and then divide remaining assets to inheritors.

Probate court becomes even more involved when there is no Will or testament available, as the intestacy statute of Virginia will then control how the decedent’s estate and assets are divided, and it becomes important to ensure that any creditors are properly dealt with by the personal administrator of the deceased person’s probate estate. Even with a Will, probate can take months or even years to properly implement – especially if assets are reported improperly by the personal administrator.

Where should a Will be probated in Virginia?

The Commonwealth of Virginia does not have a separate probate division for its Circuit courts. Wills are recorded and probate initiated in the Circuit Court for the county where the deceased was residing or owned a home when he or she died. A Will, if recorded, is a public record, and interested parties can obtain a copy of the Will from Land Records. 

Who is involved in probate court?

There are multiple parties involved in probate proceedings, each with their own unique role to play:

  • Executor/administrator: Typically, a decedent names a specific individual or entity (such as an attorney) as the executor or administrator of their Will. This role is usually appointed by a probate court if no Will is present.
  • Beneficiaries/heirs: These individuals are either named in the Will to receive assets after debts are paid or they’re the legal beneficiaries according to state law.
  • Circuit Court Clerk: The Clerk of the Circuit Court of the decedent’s home county typically handles the probate case.
  • Judge: A judge may get involved in the case if there is a dispute among heirs during the probate process.
  • Creditors: Creditors will send bills to the executor or file a formal claim with the Commissioner of Accounts to seek payment of debts owed by the decedent at the time of their death. If there are not sufficient assets in the probate estate to pay all the decedent’s creditors/debts, the executor or administrator cannot favor one creditor over the other and must schedule a Debts and Demands hearing with the Commissioner of Accounts, and it will be the Commissioner of Accounts who determines how much each creditor will receive after their respective claims are prioritized.

What is an executor’s role in the probate court process?

As the executor of your loved one’s estate, you will serve a key role in the probate court process. This process is how a deceased individual’s assets pass through a Will and reach any named beneficiaries therein.  You may deal with getting their home sold, filing tax returns, and addressing creditor claims.

Although the process can be lengthy, probate is necessary to ensure, first, that a decedent’s final debts and expenses are paid, and, second, that the beneficiaries named in the Will receive their inheritance. Under court-supervision, an executor is responsible for overseeing this process.

An overview of the Virginia probate process

The Virginia probate process involves many different steps, but here is a very brief overview. You may view more detailed information about each step in a blog post published by The Law Office of Patricia E. Tichenor, P.L.L.C., the parent company of My Legal Case Coach.

1. Determine which court forms you’ll need and where to file them.

2. Schedule a qualification meeting with the local probate clerk.

3. Apply for a probate bond and appoint a local registered agent (if you’re a non-Virginia resident).

4. Get a tax identification number from the IRS and set up a probate bank account.

5. Determine whether you need to file additional forms based on the size of your loved one’s estate.

Frequently asked questions about Virginia Probate

What does ‘testate’ and ‘intestate’ mean?

Testate means a person formed a valid will before their death. A person dies intestate if they passed away before making a valid will. If someone dies intestate, Virginia state law decides who will be appointed to carry out probate and defines who the lawful heirs are of the estate. For example, if someone dies intestate, the deceased’s spouse will inherit everything unless the deceased had children from another marriage. Two-thirds of the probate estate will then be divided to the children while the spouse at the time of death will inherit one third.

Who will be appointed by the court as executor or administrator?

An individual listed in the Will is usually appointed by the court as the executor or administrator. If this individual refuses or there’s no one listed in the Will, the court can appoint a competent alternate or one of the beneficiaries listed in the Will. For cases where no Will is present, the next legal heir is typically appointed as the executor or administrator. A will can waive surety; however, it is required if the appointee is not a resident of Virginia.

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

Appointing an executor or holding a formal administration of an estate is not always required. If the deceased left a small estate with the personal property amounting to no more than $25,000 or bank accounts valued at $50,000 or less, there’s usually no need for a formal administration of the estate. Executors are generally not required for cases of joint accounts or the transference of a motor vehicle. Additionally, a property can be transferred to the spouse or heir without having to go through probate if the deed provided survivorship rights.

Need help with a Virginia probate court matter? My Legal Case Coach can help.

Some estate executors opt to handle the probate process on their own, without enlisting the help of an attorney. If you find yourself handling a DIY Virginia probate matter, My Legal Case Coach’s probate case forms packet and 1-to-1 virtual coaching services can help you with all of your questions and completing the forms needed for each step of the probate process.

Schedule a free 15-minute consultation with a licensed Virginia attorney to discuss your circumstances and learn more about how we can coach you through the process.