Probate Shortcuts in Virginia

Virginia offers probate shortcuts for "small estates." This makes it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using these procedures -- saving time, money, and hassle.

Claiming Property With a Simple (Small Estate) Affidavit

Virginia has two procedures that allow inheritors to skip probate altogether; one process is for real estate, and the other for other (personal) property. When the value of all the assets left behind is less than a certain amount, all an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- gets the affidavit and a copy of the death certificate, it releases the asset.

The out-of-court affidavit procedure is available in Virginia if:

1. The value of the entire personal probate estate is $50,000 or less. The will, if any, must be filed with probate court. There is a 60-day waiting period. Va. Code Ann. § 64.2-601.

or

2. For real estate, if there’s no will, the heirs or personal representative can record an affidavit setting out the names of all heirs; the court clerk will send an abstract of the affidavit to the revenue commissioner, and then the real estate can be transferred. The affidavit form is available from the court. Va. Code Ann. § 64.2-510.

For personal property, the inheritor’s affidavit must state:

• the basis for why he or she is entitled to the claimed asset
• the names and addresses of all heirs and beneficiaries, and
• the names of beneficiaries who are entitled to receive assets on behalf of other beneficiaries.

For real property, the inheritor must use a specific form provided by the Office of the Executive Secretary of the Supreme Court that states:

• the legal description of the real property
• that the deceased person died without a will, and
• the names and addresses of the heirs.

The county clerk records the affidavit with other land records and sends the affidavit to the revenue commissioner who can then transfer the real estate in the land books and begin assessing the real property to the new owner.

Transferring Property Without an Affidavit

Virginia also offers other ways to legally transfer property without an affidavit. For example, anyone who has property of the deceased person can give it to an inheritor if the property is valued under $25,000 and at least 60 days have passed since the death. The inheritor who receives the property must protect and share it with the other heirs or beneficiaries, if any. Va. Code Ann. § 64.2-602.

Also, an heir or beneficiary can ask anyone holding an asset to transfer $4,000 or less of its value to pay the deceased person’s funeral expenses as long as 30 days have passed since the death. Va. Code Ann. § 64.2-604.

For More Information

For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor’s Guide, by Mary Randolph (Nolo) or Estate Planning Basics, by Denis Clifford (Nolo).