If you recently lost your spouse, parent, child, or other close relative or friend, the next step for your loved one’s estate is most likely probate. Through probate, a personal representative, commonly known as an executor, will gather your loved one’s assets and pay any outstanding debts. When all of the necessary tasks are completed, the representative will distribute your loved one’s assets to their beneficiaries.
You may be in the position to act as the personal representative for your loved one’s estate. If so, contact a probate lawyer from Copenhaver, Ellett & Derrico to discuss Virginia’s probate process and how an estate lawyer can help.
Virginia Probate Law
Virginia law regarding wills and estates is found in the Code of Virginia §64.2-200 through §64.2-638. The Code of Virginia §64.2-2200 through §64.2-2741 may also apply to the probate process or non-probate transfers of property. These statutes cover a number of topics related to the death of Virginia residents with or without wills, including what constitutes a valid will, how a will shall be executed, who is an heir of a deceased individual, what constitutes the probate estate, and the rights of a surviving spouse.
What Is Probate?
Probate is the court-supervised process of determining whether a deceased individual left behind a valid will, and whether or not there is a will, conducting an accounting of the state and distributing the assets to the decedent’s beneficiaries. If the decedent had a valid will, the estate will be distributed based on the directions in that document. If the decedent passed away without a will, or the will was determined to be invalid or void, then the court will distribute the property of the estate based on Virginia’s intestate laws.
Probate is a common legal process, though it is not always required. Probate is necessary when the decedent leaves behind property that is subject to distribution under Virginia laws. If the decedent left behind only assets that are not subject to probate, such as property held in a trust or that automatically basses to the new owner, then the estate does not need to go through this process. Additionally, small estates can go through a simplified process.
To determine whether your loved one’s estate must go through probate, call an estate probate lawyer at Copenhaver, Ellett & Derrico.
The Probate Process in Virginia
To begin the probate process, you file a Petition for Probate along with the original will and a copy of the death certificate with the Clerk of the Circuit Court in the county where your loved one lived. Virginia does not have a separate probate court.
If you are named as the decedent’s personal representative in the will, then the court will appoint you the administrator. If no one is named in the will the court has the discretion to appoint someone, which is often a close relative. Whomever is given the position of personal representative is given a Certificate of Qualification, which gives the representative the legal authority to act for the estate.
The personal representative is required to:
- Notify the decedent’s beneficiaries of the probate process.
- Gather an accurate accounting of the decedent’s assets.
- Notify the decedent’s creditors of probate.
- Pay bills associated with the decedent’s passing, such as funeral expenses, state income and property tax, federal taxes, and probate tax.
- Pay the decedent’s creditors.
- Oversee the sale of property.
- File a final accounting with the court.
- Petition for the court to close probate.
- Distribute the estate’s remaining assets.
Acting as a personal representative for the first time can be intimidating and stressful. We are here to help you understand and complete your duties, as well as prepare you for the probate hearing process.
You may be able to skip the formal probate process, if your loved one passed away with a small estate. In Virginia, a small estate is one that does not include real property, such a house, and at the date of your loved one’s passing, was not worth more than $50,000. Once your loved one has been deceased for at least 60 days, then you may file a Virginia Small Estate Act Affidavit, which outlines the decedent’s assets and their value. After the affidavit is approved by the court, the remaining assets can be passed to the proper beneficiaries or heirs.
When Does Probate Litigation Arise?
Probate is not an inherently adversarial process. It is often relatively simple process, even if it is difficult for you and your family. However, there are many situations in which relatives do not agree on something after a loved one’s death, which can give rise to probate litigation.
Common reasons to litigate a probate matter include:
- Contesting the validity of the will.
- Determining beneficiary status.
- Contesting a beneficiary’s share of the estate.
- Contesting the personal representative’s accounting of the estate.
- Alleging misappropriation of funds.
If you are not directly involved in the probate case, yet you are concerned about the validity of your loved one’s will or how the personal representative is handling the estate, do not hesitate to call us. Our attorneys at Copenhaver, Ellett & Derrico are ready to listen to and address your concerns. If there is evidence of wrongdoing or an error, we can represent you in probate litigation.
The Cost of Probate
The cost of probate depends on the size of the estate, which dictates the probate tax amount, and whether or not any probate litigation arises. If you are handling probate for a loved one, you can expect to pay a probate tax of 10 cents per $100 on estates valued at greater than $15,000, including the first $15,000 of assets. You may also have to pay other filing fees and attorney’s fees.
Many costs of probate are paid for through the estate’s funds. However, personal representatives are also allowed compensation for their time and efforts.
Contact a Virginia Probate Attorney For Help
The estate probate process can be complex. If the estate you’re handling is large or someone is challenging a will, you may face a complicated legal process. If you wish to challenge the administration of an estate, you may need a probate lawyer to guide you through the steps as well.