Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone, usually the surviving spouse or other close family member, authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Probate and Nonprobate Assets
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets, called “nonprobate” property, can probably be transferred to their new owners without probate.
Common nonprobate assets 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 for which the deceased person designated a beneficiary outside of the will—for example, IRAs or 401(k) plans for which the deceased person named a beneficiary, or payable-on-death bank accounts
- life insurance proceeds or pension benefits that are payable to a named beneficiary
- assets held in a revocable living trust
Special Small Estate Procedures
If the deceased person didn’t leave a lot of valuable property, surviving family members may not need formal probate proceedings. There are two options, one for real estate and one for other property:
- For real estate: If there’s no will, then heirs or personal representative can file an affidavit with the court clerk.
- For personal property: If the value of all of the assets left by the deceased person doesn't exceed $50,000, and the surviving spouse or domestic partner is entitled to all of it without probate, there’s a simple affidavit procedure.
Learn more about these Virginia probate shortcuts.
Probate in is handled by the circuit court in the county in which the deceased person owned a home (or other real estate) or resided. If the person was in a hospital or nursing home at the time of death, the county where the person lived before that is considered his or her residence. Usually, the circuit court clerk handles probate paperwork; the circuit judge isn’t involved unless there is a conflict that needs to be resolved.
Appointment of an Executor or Administrator
If probate is necessary, the person named in the will to serve as executor starts the process by going to the appropriate circuit court. You’ll need to supply:
- the original signed will (if any)
- a certified copy of the death certificate, and
- an estimate of the value of all estate assets.
You’ll also have to file, on a form supplied by the court, a list of heirs (people who inherit under Virginia law if there’s no will). If the will isn’t “self-proving,” one of the two witnesses who watched the deceased person sign it and signed the will themselves must appear in court (or submit a sworn statement) as well. Virginia allows handwritten (holographic) wills, but to prove the will’s validity you’ll need to produce two people who know the deceased person’s handwriting and don’t stand to inherit under the will.
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” This person does the same job as an executor. Under Virginia law, anyone who inherits from the deceased person can be appointed as administrator. Both executors and administrators are commonly referred to as “personal representatives” or “fiduciaries.”
An executor or administrator who is not a Virginia resident must appoint a resident as his or her agent; this person is authorized to accept legal communications on behalf of the out-of-state executor and is subject to Virginia courts’ jurisdiction. A nonresident personal representative must also post a bond, which is a kind of insurance policy that protects the estate from losses caused by the personal representative.
There is a probate tax, based on the value of the assets in the estate. There are also court fees to open a probate case. All of these fees can be paid from estate assets.
The circuit court will give the fiduciary a certificate of qualification. This document can be shown to third parties to show that the personal representative has legal authority over the deceased person's assets.
Within 30 days after being qualified by the court, the personal representative must mail notice of the proceeding to all heirs (people who inherit under state law in the absence of a will) and beneficiaries named in the will. The notice lets them know they have the right to get copies of the inventory, accountings, and other probate documents.
An executor or administrator is entitled to compensation for the work of settling the estate. Generally, the fee is a percentage of the value of the estate.
Handling Estate Assets
It’s the personal representative’s job to:
- collect estate assets and keep them safe
- have the assets professionally appraised, if necessary
- pay debts and taxes, and
- distribute the remaining property as the will (or if there's no will, state law) directs.
Usually, the personal representative opens a bank account for the estate. The executor deposits amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments) into the account, and uses the funds to pay estate expenses.
The personal representative has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
The personal representative must file an inventory of estate assets with the Commissioner of Accounts, someone (commonly a local lawyer) who is appointed by the circuit court to oversee estates. Later, the personal representative must submit annual accountings, which show all assets of the estate and all distributions. An accounting must be accompanied by receipts, bills, bank statements or other papers that document each transaction.
Dealing With Debts and Taxes
It’s the personal representative’s job to pay valid debts and expenses of the estate. Most creditors send bills informally, but they can submit formal claims to the Commissioner of Accounts. If the personal representative disputes the claim, the commissioner can hold a hearing on it.
If there’s not enough money in the estate to pay all debts, the personal representative must turn to the priority list in Virginia law. The allowance for support of the surviving spouse and minor children (under 18) has the highest priority. It can be paid in a lump sum of up to $18,000, or in monthly payments of $1500 for a year. Next come probate costs, funeral costs, taxes, medical expenses, and debts to Virginia. The list goes on; you’ll need to consult it only if there isn’t enough money to pay all the bills. If that’s your situation, get legal advice before you pay anyone.
The personal representative must file final Virginia and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if it receives income.
A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2016, more than $5.45 million. More than 99.7% of all estates do not owe federal estate tax. Virginia doesn’t impose its own estate tax.
Closing the Estate
After debts and taxes are paid, the personal representative distributes the assets, following the instructions in the will, or if there is no will, Virginia law. If there’s no will, the deceased person’s closest relatives inherit. When the court is satisfied that the personal representative has correctly paid debts, filed required tax returns, and distributed assets, it will relieve the personal representative of his or her duties.