When Does the Probate Process Start After Death?

Patricia TichenorLegal

book of probate law

When a person dies, their loved ones typically have to do more than plan a funeral and say their final goodbyes. Someone also must handle the administrative aspects of carrying out the decedent’s last wishes through a legal process called probate.

The probate process may seem confusing but understanding the steps you may have to take as a loved one’s executor can help make things go more smoothly. Learn more about when and how the probate process starts after a person’s death and the important steps you’ll have to take if you’ve been named as an executor.

What is probate?

Probate is the legal process of administering someone’s last Will and settling any open affairs with creditors and other parties. An executor plays a key role in this process, as they are responsible for gathering the deceased’s assets, paying taxes or debts, and distributing inherited funds or property to the beneficiaries named in the decedent’s Will. Although people often name a spouse or family member as their executor, a trusted third party, including a close family friend or attorney, can also serve in this role.

If there’s no Will available, the probate court becomes more active in the process, as outlined by the intestacy statute of Virginia. Because Virginia does not have a separate probate court, probate is handled through the Circuit Court in the decedent’s county of residence. A judge likely won’t need to get involved unless there is a dispute regarding the inheritance or unless the Will is discovered to be invalid. After the probate process, a Will becomes part of the public record.

When does the probate process start after death?

The Commonwealth of Virginia recommends that an estate’s executor file for probate at the appropriate Virginia Circuit Court within 30 days of the decedent’s death. However, not every deceased person has assets that require a “probate” filing, and it is helpful to determine what assets will and will not pass thru probate (if any) before you file a Will with the court or seek to be appointed an executor or administrator, the latter being what you are called when a loved one dies without a Will. The probate process generally does not begin until after the funeral, so your family may opt to take advantage of the 30-day period while they grieve. If a lawyer or independent party acts as executor, they may be able to start the process sooner.

If the family members of the decedent intend to file a small estate affidavit for an estate of $50,000 or less, they must wait at least 60 days after the person’s death.

How does the probate process start?

After someone has died, loved ones or their lawyers must first locate their Will. If the WIll is not easily accessible, you may have to check in the deceased person’s office, safe, or other places they kept important documents. Next, you need to determine what assets the decedent had and whether the filing of the Will with the county where the decedent resided is, in fact, necessary, in order to take control over and administer their assets.  If you file with the wrong court, it will return your documents and inform you of the mistake.

The executor of the Will is responsible for facilitating the probate process with the court. The bulk of the work includes finding and filling out the appropriate paperwork, as well as paying the necessary filing fees.

How long does probate take?

Generally, the probate process can take a minimum of several months or even upwards of a year. However, it can be difficult to put a specific timeframe on the probate process because the circumstances can vary.

The process will take longer without a Will because it requires administration applications and the consent of next-of-kin forms. The timeline also depends on how soon you file the appropriate documents after your loved one’s death.

If an estate is larger or highly valued, the process can take longer because there are more pieces that can delay progress. People contesting the Will or disputes among heirs can also lengthen the probate process.

You can learn more about the specific steps involved in the probate process in this blog.

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

If you find yourself handling a Virginia probate matter on your own, My Legal Case Coach’s probate case form packet and 1-to-1 virtual coaching services can minimize confusion. We provide one (1) free hour of coaching assistance, plus optional prepaid blocks of coaching time, to help you complete and file the necessary forms at 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 help you and your family through the probate process.