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.
- the original signed will
- a certified copy of the death certificate
- an estimate of the value of all estate assets
- a list of heirs
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.