For many people, probate law is something that they may never have any interaction with or investment in. But for those who lose a family member and are named executor of the estate via the decedent’s will, or are the surviving spouse of the decedent, familiarizing oneself with the probate process is a must.
At the law office of St. John, Bowling, Lawrence & Quagliana, LLP, our experienced probate attorneys are available to guide you through everything you need to know about probate laws in Virginia and offer legal support and representation throughout the process. Over the years, we have helped numerous individuals and families with probate and estate issues, and we are committed to providing skilled and personalized guidance for each client we serve.
What Is Probate?
Probate is the legal process for entering the decedent’s will into the court record and proving that the entered will was indeed the last and valid will and testament of the decedent.
In addition to entering the will into the court record and proving its validity and authenticity, the probate process also oversees the distribution of any property of the decedent to named beneficiaries. The probate process occurs in the circuit court of the county where the decedent died; there is no separate probate court in Virginia.
Who Is Responsible for Probating a Will?
After a person dies, family members may be unsure of what steps to take next in regards to the probate process, and may have questions about who will be responsible for probating the will (note that probating a will is a legal requirement and is not optional).
If the decedent had a will at the time of death, then the person named as executor or administrator of the estate within the will is responsible for probating the will. If there is no one named in the will, or the decedent does not have a will at all, then an administrator will be appointed by the court. While who is appointed can vary on a case-by-case basis, typically, the person who is appointed is a beneficiary (such as a spouse or child). The person who is appointed as administrator must be deemed “competent and suitable,” and must take an oath promising to perform their duties faithfully and to the best of their ability.
What Does the Administrator or Executor Do?
If you are the surviving spouse or beneficiary of a loved one and you are named as administrator or executor of your deceased spouse’s/family member’s estate, it is strongly recommended that you hire an attorney to aid you in navigating the probate process. The executor of an estate is responsible for:
- Verifying the decedent’s property;
- Taking possession of such property;
- Determining any liabilities of the estate;
- Ensuring liabilities are managed (i.e., creditors are paid);
- Paying any taxes of the estate; and
- Distributing the property per the requirements set forth in the decedent’s will and Virginia law.
Do All Assets Have to Pass through Probate?
While the majority of the decedent’s assets must pass through probate and will therefore be subject to division amongst the beneficiaries, there are some assets that are exempt from the probate process. These include:
- Any assets held in a trust;
- Any assets that are jointly owned/held in joint tenancy;
- Any assets that have a named beneficiary, such as a retirement account or life insurance policy; and
- Other benefits that are payable directly to a beneficiary (i.e. pension benefits).
There are also special procedures for small estates, which are considered to be estates where the value of property does not exceed $50,000. For a small estate, formal administration of the estate is not required – instead, beneficiaries can complete a single affidavit.
What if the Decedent Didn’t Have a Will?
Of course, not everyone dies with a will, and therefore there may be no will to be presented to the probate court, nor proved as valid. When a person dies with a will, this is legally referred to as dying “testate”; when a person dies without a will, the term used is dying “intestate.”
If a person dies intestate, then their assets must still pass through probate. However, rather than being subject to the whim or desire of beneficiaries in terms of the division of assets, the state’s intestacy laws will apply.
Each state has the autonomy to form its own intestacy laws – the laws that determine how the estate of a person will be divided upon their death. In Virginia, intestacy laws hold that, if the decedent dies without a will:
- The surviving spouse will get everything if there are no surviving children;
- If there is both a surviving spouse and surviving children, the spouse will receive one-third of the estate, and the remaining two-thirds will be divided amongst the children;
- If there is no surviving spouse, the then any surviving children will be entitled to the estate;
- If there is neither a surviving spouse nor surviving children, then assets will be allocated to the decedent’s parents; and
- If there are no surviving parents, children, or spouse, then the estate will pass to any siblings of the decedent.
More information about intestacy laws and who is entitled to an estate can be found in the Code of Virginia, Section 64.2-200.
Why Work with a Probate Attorney?
Working with a probate attorney is strongly recommended, and can be beneficial whether you are the executor of an estate or a named beneficiary. Your attorney will be responsible for a myriad of tasks, including ensuring that action is taken by required dates, representing you during discussions with creditors or other beneficiaries, filing a personal income tax return for the decedent, and establishing the validity of the will. If a will is contested, an attorney can also provide representation during this process.
An attorney serves as a resource during the process, and you and your attorney can divide up tasks as you see fit based on your needs. At the law offices of St. John, Bowling, Lawrence & Quagliana, LLP, our lawyers have more than 110 years of combined legal experience, and we thoroughly understand the complexities of the Virginia probate process. For a consultation with our team about how we can serve you and where to begin, please call us at 434-296-7138, visit our Charlottesville office in person, or send us a message by filling out the contact form on our website. We will get back in touch with you shortly.