Probating a will can feel like a daunting task. Here are answers to the most commonly asked questions about probating wills, specifically in Virginia and West Virginia:

How does probate work?

Probate is the process by which the circuit court which confirms the validity of a deceased person’s will and distributes their assets according to their instructions. The court does this through a series of three sequential steps:

1.) Notice

2.) Inventory

3.) Accounting

Each of these phases has steps within it that must be completed according to state law. For more information on each of these phases, read The Probate Process in Virginia: An Overview.

Who probates a will?

The estate’s personal representative works with the circuit court to probate the will. This personal representative is either the person chosen by the deceased in their will, or a person chosen by the court. If the personal representative named in the will is unfit or unwilling to fulfill their role, the court will step in and elect someone who is able and willing to probate the will.

Why must I probate a will?

A will is a legally binding document, and probate is the legal process used to enforce it. If someone has a will, it must go through their state’s probate process to legally distribute their assets. If the personal representative, or executor, of the deceased’s estate does not probate the will, the assets in the estate remain in the name of the deceased person. This is not good, because the assets will become frozen until the will goes through probate. Assets such as a house, bank accounts, vehicles, and more cannot be given to the heirs if the will is not probated.

Neglecting to probate a will for an extended period can result in unnecessary taxes and fees. Also, if you conceal or hide a will, you can be criminally charged.

Where is the probate court?

There is no separate or special probate court. The will should be probated with the circuit court in the county where the deceased was residing when they passed.

What does a probate attorney do?

A probate attorney helps the personal representative of an estate navigate the probate process. Probate can be complicated and time-consuming. Each of its three phases requires a personal representative to fulfill specific steps within a certain time. Also, the more complicated the estate is, the more complicated the probate process will be. Many personal representatives find they need help meeting the legal requirements of probate, and this is where an experienced probate attorney can help.

When is probate finished?

Probate is complete when the personal representative files the last Accounting, and it is accepted by the court. The entire process can take anywhere from months to years, depending on how complicated the estate is.

Can probating wills be avoided?

Yes, probate can be avoided. However, most of the time this must be accomplished by the person who owns the estate before their death. If they set up their estate plan with a trust instead of a will and maintain the trust properly, their estate will not have to go through probate when they die. The other option is to die with few to no assets. In the state of Virginia, if the personal property in an estate is worth less than $50,000, it is considered a small estate. In this case, the decedent’s next of kin can avoid probate by using a Small Estate Affidavit.

Related: How Does the Virginia Small Estate Affidavit Work?

Probating a Will in Virginia or West Virginia?

If you are in the process of probating a will, or you are considering whether you should set up your estate plan to avoid probate in the future, give us a call. We would love to help you understand what probating wills takes in the Virginia or West Virginia.

 

Joshua E. Hummer, Esq. is the founder of Relational Estate and Elder Law, PLC, and he has been a practicing attorney for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law. He is licensed in both Virginia and West Virginia. Josh’s passion lies in helping people gain peace of mind about the future through holistic legal planning. When he isn’t meeting with clients or crafting legal documents, Josh enjoys spending time with his lovely wife, Jill, and their four vibrant children.

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