If you are here to learn about Virginia probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
With that said, probate in Virginia is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in Virginia Beach, Norfolk, Suffolk, Hampton, Newport News, Chesapeake, Williamsburg and Yorktown it is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including probate taxes and possible federal estate tax)
- Distribute the property as direct by the will—or by the state law if there is no will
In Virginia, if someone has $50,000 in total assets they will probably have to have their assets probated.
What’s so bad about probate in Virginia…and what should I do next?
Many residents in Virginia Beach, Chesapake, and Norfolk have heard that probate is bad news. It tends to be very expensive, it’s time-consuming, and it’s also a public process.
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
Some resources you may find helpful at this stage include the Free Brochure, "Probate in Virginia" which was prepared and issued by the Virginia Court Clerks Association or our Free E-Guide, "Executor and Trustee Protection Guide" here. These are free resources to help guide you through this difficult time.
We also invite you to contact us for an individual case review by calling (757) 333-7505 or by filling out this form here.
How is a Probate Started in Virginia?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original Last Will and Testament and a List of Heirs with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the List of Heirs.
How is the Executor Chosen?
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
How does the Executor Get Paid?
Virginia law provides that the Executor gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate but is generally limited to five percent of the assets handled.
Could I Be Held Personally Liable For Making a Mistake as an Executor?
Being an Executor is a big responsibility. Virginia's probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
My loved one had a trust…will we need to go through probate?
The real answer is "it depends." In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But time and again, the family is coming into my office after there is a death and they are going to experience the frustration, expense and delay of a probate because the loved one's assets are not owned in the name of the Trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones' assets were not owned in the name of their Trust. That is why it is so important that you carefully choose your estate planning attorney and have regular reviews of your trust so it works as planned.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants" or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process, especially if those assets are being left to a minor. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Virginia probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents). However, if there is a blended family the spouse will receive 1/3 of the assets and the children will receive 2/3 of the assets.
How long does Probate take?
The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases. We have been involved in a probate that will continue for over 12 years due to the assets being left to a minor.
How much does Probate Cost?
Probate legal fees are set by state law (Virginia Will, Trust and Fiduciaries Code Section 64.2) and are determined based on the size of the probate estate. At the time of filing the will the probate tax must be paid (Generally $1.00 state probate tax and .33¢ local tax, if applicable, per $1,000.00 value of the estate.) This is in addition to the compensation paid to the Personal Representation (i.e. Executor or Administrator). The Virginia Probate court can order additional fees for more complicated cases or extraordinary services. There are also court costs and filing fees, document certification and recording fees, and property appraisal fees, bonding fees, accounting fees, and inventory fees.
Getting Help: Choosing The Right Attorney For Your Probate Case
The best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same! Choose an experienced probate lawyers and remember, you don’t have to use the attorney who prepared the Will either! Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.
Contact Pennington Law, PLC For A Complimentary Case Review
If you’re ready to get started with the probate process after the passing of a loved one, please contact our experienced probate attorney at (757) 333.7505 or email us here to schedule a complimentary case review.
During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps. We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.