Probate: The What, When, Where, Why and How of Probate
We’ve all heard the term probate, or that a will has to go through probate. But, what exactly does the term mean, what is involved once probate begins, and how does it affect beneficiaries?
Probate is the official way that an estate gets settled under the supervision of the court. In the Commonwealth of Virginia, the Circuit Court or, in most cases, the clerk of that court in which the deceased person lived, has jurisdiction. The purpose of probate is to prevent fraud after someone’s death and to prove before the court that the document offered as the last will and testament of the deceased is genuine. Probate gives someone, usually the surviving spouse, adult child, or other close family member or friend, who is named as the executor of the estate the power to:
- collect estate assets and keep them safe
- have the assets professionally appraised, if necessary
- pay bills, debts, and taxes
- distribute the remaining property to the beneficiaries as the will directs.
If probate is necessary, the executor starts the process by going to the appropriate circuit court. The executor will need:
- the original signed will
- a certified copy of the death certificate
- an estimate of the value of all estate assets
- a list of heirs
There will be a probate tax due based on the estimate of the value of the assets in the estate. There are also other court fees to open probate. All of these fees can be paid from estate assets. The circuit court or clerk will give the executor a certificate of qualification. This document affirms that you are the estate’s personal representative and have legal authority over the deceased person’s assets.
An original will, not a copy, must be presented to the clerk. The clerk will review the document and make sure that it meets all requirements under Virginia law, and if so, the document will be recorded by the clerk. A valid will must be in writing, signed by the deceased, known as the testator, or some other person in the testator’s presence and at his or her direction. The signature must be made in the presence of at least two witnesses. A hand-written will, also called a holographic will, signed by the testator is valid under Virginia law. If the executor presents a hand-written will for probate, the handwriting must be established as that of the testator by two disinterested witnesses. A will may be self-proving if a properly executed affidavit is attached with the will. The clerk will accept a self-proving will for probate without further proof by witnesses. If the will is not self-proving, at least one of the two witnesses who have signed the will must appear at the time of probate.
Depending on the size and complexity of the estate, probate can be a lengthy and sometimes complicated process. Final distribution of the estate can take from as little as 6 months to several years.
What if there is no will?
If there is no will, or the person named in the will as executor isn’t available or chooses not to serve, the probate court will appoint an administrator. The administrator does the exact same job as an executor. Under Virginia law, anyone who will inherit from the deceased person can be appointed and agree to become the administrator. Both executors and administrators are commonly referred to as personal representatives or fiduciaries. If there is no will, the administrator will distribute the estate as directed by Virginia intestate law.
Are there any assets that do not have to go through probate?
Not all assets in an estate must go through probate. Some assets transfer automatically to beneficiaries with no probate required. These include:
- assets the deceased person owned with someone else in joint tenancy or tenancy by the entirety which pass automatically to the surviving owner
- assets that have a designated beneficiary outside of the will, for example, IRAs or 401(k) plans, for which the deceased person named a beneficiary
- payable-on-death and transfer on death bank accounts
- life insurance proceeds or pension benefits that are payable to a named beneficiary
- assets held in a revocable living trust
- “Small estates” – If the value of the estate doesn’t exceed $50,000, there’s a simple affidavit procedure and it doesn’t require court supervision to settle.
Closing the Estate
After debts and taxes are paid, the fiduciary distributes the assets to all beneficiaries, following the instructions in the will. If there is no will, Virginia law dictates who inherits. When the court is satisfied that all debts and bills have been paid, tax returns have been filed, and all assets have been distributed, it will close the estate and relieve the personal representative of his or her duties.
Consult an estate planning attorney for help
Unless you are knowledgeable about wills, trusts, and probate, it may be helpful to seek legal advice before probating a will. An attorney can review the will and give you direction. An attorney can also advise you as to whether probate is necessary based on the circumstances of the estate. If the will is not self-proving, an attorney can assist you with the requirements for witnesses, or if witnesses are not available, alternative procedures for admitting the will to probate. In a case where the original will is lost or if there is a dispute over whether you have a valid will of the testator, an attorney can provide advice on appropriate actions.
About Melone Law, P.C.
Melone Law, P.C. is a general practice law firm based in Reston, and serves the Northern Virginia area. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about trusts and estates, wills, and probate, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.