When a person passes away, someone must be named as the executor of their estate to ensure their final wishes are carried out. While this executor can be a neutral third-party, such as a trusted family attorney, it is often a close relative of the decedent (deceased person), such as their spouse or adult child.
If your loved one in the Commonwealth of Virginia has recently passed away and named you in their Will as estate executor, you might be wondering what to do next. Executorship is a big responsibility, and it can seem especially overwhelming during this already difficult and painful time of loss and grief.
In this guide, you’ll learn about the Virginia probate court process for decedents with a valid Last Will and Testament, and get a basic understanding of your duties as estate executor.
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.
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
Below is a high-level overview of what the Virginia probate court process entails when a decedent has a valid Will. If your loved one died without a valid Will, the process looks a bit different, so we recommend consulting with an experienced probate/estate planning attorney, like the attorneys at My Legal Case Coach for specific guidance on your case.
1. Determine which court forms you’ll need and where to file them.
In Virginia, Probate matters are under the supervision of the Circuit Court in the city or county where the decedent resided at the time of their death, especially if they owned property in that city or county. However, if they did not own any real estate and died in a hospital, then there may be grounds to file for probate in the city or county where they died.
With a few exceptions, Virginia’s probate process is controlled by specific forms approved and issued by the Virginia Supreme Court. Some Circuit Courts in Virginia do have their own customized, specific forms for their local city or county, so it is always smart to contact your local Circuit Court to ask for any specific website address that they may have to link you to their local forms.
While there are several optional forms you can file (including a waiver of executorship affidavit, if you wish to decline your duties), the most common forms you initially need to prepare are as follows:
- Probate Information Form
- List of Heirs
- Notice Sent to Heirs and Beneficiaries
- Probate Tax Return Form
You will need to prepare the forms above before your first meeting with the probate clerk at the Circuit Court where you are filing. In order to complete the Probate Tax Return Form, you will need to prepare a list of the known assets that the deceased individual owned at the time of his or her death.
2. Schedule a qualification meeting with the local probate clerk.
Once you have completed the forms from Step 1, you will attend an initial qualification meeting to be sworn in by the Probate Clerk to serve as Executor for the Estate. You may also need to obtain a bond, but only if bond has not been waived in the Will and you are not the sole heir under the Will. You may also be required to obtain a bond if you are not a resident of Virginia (see below). You must bring a valid driver’s license or passport to this meeting, as well as your checkbook to pay any applicable filing fees and initial probate taxes.
Once you are qualified, you can then reimburse yourself from the Probate Assets that you will be located, depositing, and managing under a new bank account called a Probate Bank Account.
3. Apply for a probate bond and appoint a local registered agent (if you’re a non-Virginia resident).
If you qualify to be the Executor of an estate but are not a resident of Virginia, you must apply for a probate bond, which is local insurance company that guarantees your services Executor. You’ll also need to appoint a Virginia resident to serve as a local registered agent for you, using a Consent of Non-Resident Fiduciary form. Sometimes, if you hire a local Virginia attorney to help you, they can agree to serve as your local agent in Virginia for this purpose.
4. Get a tax identification number from the IRS and set up a probate bank account.
At the end of your initial qualification meeting, the Court will issue you a Letter of Appointment. The Court will provide you with two certified copies for free, but you should plan to purchase at least six additional copies of this Letter, as you will need to provide them to banks, taxing authorities, and more during your service as Executor.
You will then be able to go to IRS.gov and obtain a tax identification number called an EIN. You must obtain an EIN to open up the Probate Bank Account in which you will manage all the cash assets of the Probate Estate. This account will be used to pay debts and other estate-related expenses. Any remaining money will eventually be transferred to the beneficiaries from this account.
5. Determine whether you need to file additional forms based on the size of your loved one’s estate.
During Step 1, you may learn that the Estate you are handling qualifies for something called Expedited Probate (e.g., you are the sole beneficiary-surviving spouse and Executor, and assets passing to you through the Will are $25,000 or less in value) or Small Estate Treatment (e.g., asset involve only bank accounts valued at less than $50,000). If the decedent’s estate does qualify for such treatment, you will be done with Probate. You may simply need to fill out a special affidavit form to complete the court process.
If your loved one died with a larger estate, there will be several more steps and forms to file. At this point, we highly recommend speaking with an experienced estate planning attorney to help you complete the probate court process.
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 form 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.
To learn more about the Virginia probate court process, you may read an extended version of this blog post published by The Law Office of Patricia E. Tichenor, P.L.L.C., the parent company of My Legal Case Coach.