Virginia Probate Process
Somewhere along the line, you’ve probably heard the word “probate”, and most likely assumed it had a negative connotation. But probate really isn’t something to be afraid of. It’s simply a process that all Last Wills and Testaments go through.
When someone dies, their Personal Representative (also known as the Executor or Administrator) collects their assets – meaning all finances, property, and possessions. They then distribute them based on what the deceased’s will says. The will is normally probated by the Clerk of the Circuit Court or a deputy clerk in the city or county where the deceased was a resident.
Since the will is a legal document, a court oversees this process to make sure it’s followed exactly. It makes sense and is a good thing. This legal process is called probate.
(Related: Is Avoiding Probate the Best Choice for My Estate?)
Every state’s process is a bit different; let’s take a brief look at Virginia’s to help you understand if you are unfamiliar with probate.
What is the Virginia Probate Process if Someone Dies Without a Will?
If a person dies without a valid will, they are considered intestate, and the Commonwealth of Virginia’s probate process laws then determine who receives the deceased’s property.
(Related: What Does Intestacy Mean for Your Estate?)
This list goes in order of closeness:
- Everything goes to the surviving spouse unless there are children or their descendants.
- If there are children, then one-third goes to the surviving spouse and the remaining two-thirds are divided up among the children.
- If there is no surviving spouse, the children get everything, followed by the deceased’s parents, siblings, etc.
What Is The Virginia Probate Process Filing Requirements If Someone Does Have A Will?
Time Frame:
Although there is no specific time frame for probating a will, the initial steps should be taken within 30 days after the death.
You can make an appointment with the clerk or deputy clerk in the appropriate jurisdiction. Take the original signed will and official death certificate, a listing of any assets owned by the deceased, and, if you can, the estimated value of those assets.
Handling:
The will usually names a Personal Representative (Executor). If there is no will or no named Personal Representative, the court will appoint one. This person must take an oath to carry out the duties of the Personal Representative. They will be expected to determine the value and debts of the estate, pay the bills and taxes, and distribute any leftover assets to the heirs.
Since a considerable amount of time and energy is involved in carrying out these responsibilities, they are allowed compensation of up to 5% of the assets they handle.
Taxes:
When the will is filed in Virginia, a number of taxes will need to be paid. They include a Virginia probate tax of $1.00 state tax per $1,000 of the estate, and $.33 local tax per $1,000 of the estate. A final tax return, personal property tax return, and an estate income tax return must also be filed.
More Questions about the Virginia Probate Process?
If you’re learning about probate for the first time, we know you will likely have additional questions, and we’re happy to help.
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