In Virginia, probate is the legal process that happens after a person (the "decedent") dies, regardless of whether the person died with a valid will or without a valid will. If a decedent dies with a will, then their property is distributed according to the will. If a person dies without a will, then Virginia's probate laws dictate how the decedent's assets are distributed. Probate isn't always required after someone dies; it depends on what assets the decedent owned.
The Probate Process in Virginia
Virginia doesn't have a separate probate court. All probate cases go through the county Circuit Courts. Typically the Clerk of the Circuit Court or a deputy clerk handles the probate of wills or smaller estates and the circuit court judge is not involved.
However, any person interested in the will may appeal to the judge within six months of the order of the clerk admitting a will to probate.
If the case is going through a formal probate process, the court will appoint someone to handle the administration of estate, i.e. a Personal Representative . Many times the decedent will already have named the personal representative in his or her will. If not, the court or clerk of the court will appoint someone.
He or she must:
1) Assemble all the decedent's assets;
2) Pay the bills (Funeral Expenses, Creditors, Taxes, and general administration expenses);
3) Distribute Any Assets that Are Left Over.
Types of Estate Administration
The process of administering the estate will vary depending on whether or not the decedent had a valid will and the type of probate administration the decedent's estate will have to go through. In Virginia, if a decedents estate is small enough, the law allows you to skip probate altogether and use a simplified process. Otherwise, you'll need to go through a formal probate process in court.
When Does the Estate Need to Go Through Formal Probate?
If the decedent left a will at time of death and owned real property solely in his or her name, the will should be probated to establish title in the names of the persons receiving the real property under the will. The probated will establishes of public record, their ownership of the real property.
A decedent's will should also be probated if the decedent owned personal property solely in his or her name, unless the personal property can be transferred to the intended persons under the small estates procedure.
See Probate Court, State Probate Courts, Avoiding Probate, and Estate Taxes for more information.
| Code Section | § 64.2-601 et. seq |
| Types of Probate Administration | Probate Small Estate
or
Formal Administration All other estates. |
| What Assets Go Through Probate? | Probate is necessary when a person dies leaving property in his or her own name (such as a house titled only in the name of the decedent) or having rights to receive property. Examples: Bank accounts in the decedents name with no co-owner and no beneficiary designation; real estate that is owned by the decedent individually; real estate that is co-owned as tenants in common; stocks and bonds in the decedents name, tangible possessions such as clothing, jewelry, household furniture, and cars registered in the decedents name only |
| What Assets Skip Probate Entirely |
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| Estate Taxes | No, Virginia does not have a separate estate tax. |
| What Other Taxes Must be Paid? |
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Virginia probate laws can be tricky. Please consider contacting a local probate lawyer who can help you better understand the current rules and procedures.
