Probate is the court-supervised process of settling the estate of a decedent and distributing their assets to those entitled to them. A personal representative manages the process, but the probate court oversees it. In Virginia the Circuit Court has jurisdiction over probate matters. VA Code § 64.2-443. Every county has a Circuit Court. The administration process typically takes 6-12 months.
Role of Probate Court
While the probate court (Circuit Court) has jurisdiction over probate cases, many of the probate tasks are completed by the Clerk of the Circuit Court and the Commissioner of Accounts. To open a probate case, a petition, death certificate, and will (if any) must be filed with the Clerk of the Circuit Court in the county where the decedent resided that at the time of their death. If the decedent did not have a known residence in Virginia, then the probate case should be initiated in the probate court in the county where the decedent has real estate. VA Code § 64.2-443. Note that there is a filing fee and a probate tax that must be paid at the time that the will is submitted for probate. After reviewing the will, if the clerk determines that it is valid, the clerk will issue an order admitting the will to probate.
The personal representative is the person who has the responsibility of completing the activities required to settle a decedent’s estate. The individual wishing to serve as personal representative must seek qualification to do so. Typically, this is done at the same time the will is submitted to the clerk for probate. Once the personal representative has been qualified, they have the legal authority and responsibility to go about the business of settling the decedent’s estate.
The primary goals of the process are to pay the debt owed by the decedent and to distribute the estate assets. While it is the job of the personal representative to ensure that the administration tasks are completed, the probate court (circuit court) oversees the entire process. Along the way the personal representative is required to file documents with the clerk of the court and in certain situations seek court approval for actions.
The activities that must be completed include:
- Inventory estate assets. The personal representative must determine what assets are part of the decedent’s probate estate and must determine their value. Within 4 months of when the personal representative is appointed, they must file an inventory of estate property with the commissioner of accounts. VA Code § 64.2-1300.
- Pay decedent’s debt. The personal representative is responsible for notifying creditors either by personal service or by publication that the decedent’s estate is in the process of being settled. In order to get paid, a creditor must file a claim with the Commissioner of Accounts. VA Code § 64.1-173.
- Show cause hearing and asset. The personal representative may request a hearing during which creditors and all persons interested in the estate can appear and show cause against distribution of the estate. If no objection is presented at the hearing, the court will enter an order of distribution directing the personal representative to distribute the assets that remain in the estate to the beneficiaries or heirs.
If disputes develop during the probate process and the parties cannot settlement through negotiation, the parties will have to litigate the matter in court. This type of litigation is called probate litigation or estate litigation. Examples of causes for such litigation include:
- Will contests based on undue influence, improper execution, fraud, duress, or lack of capacity
- Will construction disputes due to ambiguities
- Contested guardianships
- Allegations of fiduciary misconduct
- Heirship disputes
- Creditor claims
While probate typically takes between 6 months to a year, probate disputes can extend the timeframe.