Probate, a term often used interchangeably with estate administration, is a court proceeding that estates of those who have passed away must go through before the assets in their estate can be legally transferred to their beneficiaries or heirs. Unlike in some other states, in Virginia there is not a separate probate court that handles exclusively probate and estate matters. Probate cases are handled by Circuit Courts and there is a Circuit Court in every county. A probate case must be initiated in the Circuit Court in the county in which the decedent lived at death. The executor or administrator, both of whom are personal representatives, is the person appointed by the court to take care of the tasks necessary to settle the decedent’s estate.
A probate case is initiated when the decedent’s will is filed with the Circuit Court, along with a petition asking it to admit the will to probate. The court will review it to ensure it meets the statutory requirements. Once the will has been admitted and a personal representative appointed, the personal representative can then move forward with the tasks required to settle the decedent’s estate. The personal representative is supervised by the Commissioner of Accounts.
Note that even if the decedent did not leave a will, their estate must go through a legal proceeding. The process would begin with the submitting of a petition to open the estate. Whether the estate had a will or not, a personal representative must be appointed by the court to carry out the activities required to settle the estate.
Duties and Responsibilities of Personal Representatives
There are many tasks that the personal representative must complete and many rules that they must follow. Failure to follow the requirements of Virginia probate law can lead to critical mistakes and delays in the process.
Inventory estate. The personal representative is required to identify and inventory all the property in the probate estate. Probate property may include real estate, personal property, vehicles, and bank and investment accounts. It does not include non-probate property such as property that is jointly owned with survivorship rights, joint bank accounts or bank accounts with payable on death designations, or retirement plans with designated beneficiaries. The Personal Representative must file the inventory with the Commissioner of Accounts within four months of the Personal Representative’s qualification .
Pay debts and expenses. The personal representative is also required to make sure any debts owed by the estate and expenses of administration are paid or otherwise resolved. Outstanding tax returns must be filed and taxes paid.
Asset distribution. Finally, once all other financial obligations are cared for and upon approval of the court, the personal representative will distribute any remaining assets to the beneficiaries named in the decedent’s will. In the absence of a will, the personal representative must distribute estate assets based on Virginia’s laws of intestate succession. VA Code § 64.2-200. Under the law, those who are considered the decedent’s closest next of kin will inherit.
In Virginia, the estate administration process generally takes about a year. The length depends on the size of the estate, the type of assets, and whether there are complications such as probate disputes.
If an estate is eligible based on size and asset type, it may be able to avoid the formal probate process and assets may be able to be distributed much more quickly.
Affidavit Relating to Real Estate of Intestate Decedent. By using an Affidavit Relating to Real Estate of Intestate Decedent, anyone who is entitled to real estate that is part of an intestate estate can request the immediate transfer of title to that real estate without having to go through probate. Va. Code Ann. § 64.2-510.
Delivery of small asset by affidavit. Similarly, if the estate has a value not exceeding $50,000, anyone who is entitled to specific personal property that is part of the decedent’s estate can complete an affidavit requesting that the person in possession of the property deliver the property to the person entitled to it. Va. Code Ann. § 64.2-601.
Delivery of small asset without affidavit. If someone is holding property of the decedent and the property has a value of less than $25,000, that person can give it to a beneficiary or heir without the requirement of an affidavit, as long as 60 days have passed since the decedent’s death. The person who received the property must also agree to protect it and share it with any other beneficiaries or heirs who are also entitled to it. Va. Code Ann. § 64.2-602
Problems During Probate
It is not uncommon for disputes to develop during probate. While oftentimes the parties can settle them through negotiation, sometimes the issue must be litigated in court. For example, problems can develop at the beginning of the process when the will is filed. Beneficiaries, heirs, and creditors are notified. As a result, if someone believes that the will is invalid and should not be probated, they can file an objection and initiate a type of probate litigation called a will contest.
Another area that can lead to disputes is the actions of the personal representative. If the personal representative is not living up to their fiduciary responsibilities, a beneficiary, heir, or other interested party can petition the court to intervene.