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 — Virginia probate, there are several pieces of information you should know.

Although a lawyer can best assess your situation and needs, this guide will inform you about the Virginia probate court process, what probate is, and your duties as an estate executor in the Commonwealth of Virginia — without vague generalizations or confusing legal jargon.

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 the remaining assets to inheritors.

The 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 is 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 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 are 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, who will determine 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 brief overview:

  1. Determine the assets and debts the deceased left. Smaller assets can be collected and placed in a safe space or appraised by a professional to determine their value.
  2. Determine whether the deceased’s estate requires probate. Not every estate requires probate in Virginia and you’re not required to record a Will unless there is a need to probate assets. For example, you would not probate an insolvent estate where the deceased owes more in debts than they hold in assets.
  3. Determine the court forms you’ll need and where to file them. Generally, you will need to complete a Probate Information Form, a List of Heirs, a Notice Sent to Heirs and Beneficiaries, and a Probate Tax Return Form. However, you can contact the Circuit Court and ask them to direct you to any specific required forms. You will file your documents in the Circuit Court of the city or county where the person was residing when they died.
  4. Schedule a qualification meeting with the local probate clerk. This meeting is where you will be sworn in by the clerk to be the executor of the estate. Before attending, make sure to find out if you need to be bonded and do so ahead of time. Bring a valid I.D. as well as a checkbook for any necessary payments.
  5. Apply for a probate bond. If the decedent died without a Will, you will have to apply for a probate bond.
  6. Select a Registered Agent if you’re a non-resident.   If you are not a resident of Virginia, you will also need to appoint a local registered agent, and complete the Consent of Non-Resident Fiduciary form.  If you have hired a Virginia lawyer to guide you, they may be able to act as the local agent.
  7. Get a tax identification number from the IRS and set up a probate bank account.  After you are qualified and receive Letters of Appointment as an executor or administrator, you will need to obtain a federal tax ID number (called an EIN).  You will use this to open up the probate bank account, and all estate debts and expenses will be paid out of this account. Eventually, you will divide the remaining money from the account for the deceased’s beneficiaries.
  8. Determine whether you need to file additional forms based on the size of your loved one’s estate. Smaller estates may be eligible for Expedited Probate or Small Estate Treatment. Larger estates will likely require additional forms. Your legal case coach can help you make sure you have all the necessary forms.

Frequently asked questions about Virginia Probate

How long can the probate process take?

Generally, the probate process takes less than a year. Because Virginia has a creditor period, the probate process will take at least six months to complete, distribute, and close. Smaller estates have options to make the probate process shorter or bypass it entirely.

Larger estates, however, run the risk of taking longer — sometimes up to two years. Assets like business interests or taxable estates require more complicated division among heirs and require more time in probate. Any contesting of the Will can also extend the length of probate — even beyond two years.

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 among 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.

What are probate shortcuts?

Legally speaking, there are some “shortcuts” you can take as an executor to bypass probate entirely in specific situations. When assets are limited to bank accounts with a value less than $50,000, you can file an affidavit for Small Estate Treatment. In this instance, there is a 60-day waiting period.

In Virginia, you can also legally transfer property without an affidavit. If the property is valued at less than $25,000 and 60 days have passed since the death, anyone in possession of the deceased person’s property can simply pass it on to an inheritor.

DIY probate tips in Virginia

  • Conflicts of interests: Carefully choose your executor or administrator. They should be someone who will not personally benefit from their role or distribute assets to financially favor themselves.
  • Paying debts: All estate debts will need to be paid before distributing assets to beneficiaries and paying the administrator. Debts can be paid in any order unless an estate is insolvent or the debts outweigh the assets.
  • Handling special assets: Special assets include items like jointly-owned assets, life insurance, and security bonds. There may be special rules or authorities to dictate how they are handled. Things like retirement benefits or Social Security benefits are not subject to administration.
  • Compensation of the personal representative: Administrators or executors can be reimbursed for charges they experience through their role and can be paid a fee for their services. Any fee amount must be approved by the Commissioner of Accounts and is deemed as taxable income.

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 legal case coach. 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 (as your case coach) to discuss your circumstances and learn more about how we can coach you through the process.