1. WHAT IS PROBATE?
Probate is the official proving and recording of the will as the authentic and valid last will and testament of the deceased.
The will should be probated where the decedent owned a home; or if none, where the decedent owned any real estate; or if none, where the decedent died or has any estate. If the decedent died in a nursing home or similar institution, then that person’s residence is presumed to be where he or she resided prior to becoming a patient at such home.
2. WHERE SHOULD THE WILL BE PROBATED?
Virginia has no separate probate court. The will should be probated in the circuit court of the city or county where the deceased resided as discussed in paragraph 1. Usually the Clerk of the Circuit Court or a deputy clerk handles the probate of wills and the circuit court judge is not involved. However, any person interested in the will may appeal to the judge within six months of the order of the clerk admitting a will to probate.
3. WHAT DOES DYING “TESTATE” OR “INTESTATE” MEAN?
A person dies testate if he left a will. One dies intestate if that person does not have a valid will at the time of death. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent’s property.
4. WHO INHERITS THE PROPERTY OF AN INTESTATE (Person Dying Without a
Will)?
If a person dies without a will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts and cost of administration):
a) all to the surviving spouse, unless there are children (or their descendants) of someone other than the surviving spouse in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children.
b) if no surviving spouse, all passes to the children and their descendants.
c) if none, then all goes to the deceased’s father and mother or the survivor.
d) if none, then all passes to the deceased’s brothers and sisters and their descendants.
e) (there are further contingent beneficiaries set out in the Virginia statutes.)
5. IS THE APPOINTMENT OF AN EXECUTOR OR ADMINISTRATOR AND
FORMAL ADMINISTRATION OF AN ESTATE ALWAYS REQUIRED?
The appointment of an executor or administrator is not always required. If such is the situation, no formal administration is necessary. This is usually true where the estate is small (under $15,000.00 for payment of small sums by certain governmental or occupational agencies).
Additionally, qualification is not necessary to transfer a motor vehicle title. In these circumstances, the will is probated
(proved and recorded in the Will Books of the Circuit Court) and nothing further is required. Other instances where formal qualification or administration may not be required are joint accounts with right of survivorship in banks, saving institutions, or credit unions.
In most cases, the payment of life insurance proceeds to a named beneficiary and the transfer of real estate to a surviving spouse or other person, where there were survivorship rights in the deed, occur outside the estate.
6. WHEN SHOULD I PROBATE THE WILL OR IF THERE IS NO WILL SEEK TO
BE APPOINTED ADMINISTRATOR?
There is no set time frame in which a will must be probated or estate administration must be started. The death of a loved one is a particularly emotional, stressful, and busy time. The probate of the will can usually wait until a week or so after the funeral. It is recommended that the initial steps in the estate process start within 30 days after death. If any questions exist, call your attorney or your local Circuit Court Clerk’s Office.
7. WHAT SHOULD I TAKE WITH ME TO PROBATE A WILL OR QUALIFY ON
AN ESTATE?
First, the will (original) must be
