Probate in Virginia
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What You Need to Know About Virginia Probate
When a person passes away, the estate of the person who died undergoes probate proceedings in most cases. Speak to a probate lawyer to know how a deceased person’s assets are distributed after death.
Consult an attorney if you have been appointed as an executor or administrator of an estate in Washington, DC. If you have any questions, Kevin C. Martin, Attorney at Law, can answer them and guide you through the process.
What Is Probate?
Probate is a court process involving the administration and distribution of a person’s estate upon death.
When a person dies with a will, the decedent’s property (the deceased) is distributed according to the will. The probate of a will is done in the county or city circuit court where the decedent was residing at the time of the person’s death.
If the deceased’s residence is unknown, probate will take place in the circuit court where they had owned real estate or lived during their lifetime.
Without a will, the court will appoint an administrator to distribute the decedent’s property.
Virginia law on testate and intestate succession can be complicated for an ordinary person. Seek advice from Kevin C. Martin, Attorney-At-Law, PLLC, about estate administration in DC and Virginia.
Who Is Involved in Probate?
The following personalities usually participate in probate proceedings:
Personal representative/executor/administrator: The person who seeks the probate of a will presents the last will and testament to the court. If the decedent dies with a will, the executor is the one who usually brings the last will to the court. If there is no will, the court appoints an administrator.
Heirs and beneficiaries: These are the persons who would inherit the decedent’s estate. A beneficiary is someone named in the will to receive specific assets after the testator’s death. In contrast, heirs are those who would inherit the estate if there were no will. Heirs are not required to appear before the court. However, a notice is sent to the heirs when the assets of the decedent exceed the amount set by the law.
Creditors: The person to whom the decedent owed money.
Witnesses: If the last will and testament contains the affidavits of witnesses (self-proving affidavit), the witnesses are not required to appear before the circuit clerk of court. On the other hand, if the will was wholly written by the testator and written without any witness, two disinterested persons who knew the testator’s handwriting must appear during the probate.
If you are interested in knowing more about the probate process in Virginia, speak to a probate lawyer at Kevin C. Martin, Attorney at Law.
Is Probate Mandatory in Virginia?
Probate is not always necessary in Virginia. There are non-probate estates that do not need to undergo the proceedings. These include:
- Life insurance proceeds or pension benefits
- Assets placed under a revocable living trust
- Assets owned jointly by the decedent with another person, such as joint tenancy
- Assets wherein the beneficiary is not listed in the person’s last will, such as an individual retirement account (IRA) or payable-on-death bank account
The Probate Process in Virginia
A probate lawyer can guide you through the process of Virginia probate. While it may appear simple, many issues can arise when dealing with the properties left by a loved one. For instance, an interested party may contest the will made by the testator. A creditor may also claim that the decedent had incurred debts while the decedent was still alive.
Probate is conducted as follows:
- If there’s a will, the personal representative should bring the valid will to the court. The death certificate of the decedent is also required. The person who brings the will may not necessarily be the personal representative. To qualify as a representative, the individual must be:
- Over the age of 18;
- Able to obtain bond or surety, if required;
- Either a resident or non-resident of Virginia; and
- Suitable and competent to perform their duties to the satisfaction of the court.
- The court clerk determines the validity of the will. To be valid, the will should:
- Be in writing
- Signed by the testator or by some other person in the presence of the testator and by his direction.
- The will is admitted to probate. Personal representatives must fill out certain forms, including probate information, probate return tax, and the list of heirs.
- The personal representative will also receive the court’s authorization (or letters testamentary) to act on behalf of the estate. It proves that the representative is qualified to serve as an executor or administrator. Additionally, the letter states the representative’s authority to act on behalf of the estate. The personal representative’s main duties include:
- Gathering the decedent’s assets.
- Settling the debt and other legal claims against the decedent, including payment of taxes.
- Distributing the remaining assets as directed in the will or as provided by the law.
Payment of Estate Taxes in Virginia
One of the duties of personal representatives is to pay debts and file the required tax returns pertaining to the estate. Estate tax returns generally have to be filed by April 15 of the year following the death of the decedent.
Virginia does not impose its own estate tax. However, the deceased person’s estate may still be subject to federal estate tax.
How Long Does the Probate Process Take in Virginia?
If everything goes well, the probate process generally lasts about a year. If there are creditors, they are usually given ample time to file their claims against the decedent’s estate. It will take at least six months to thoroughly distribute and close the estate.
There are times when the proceedings take longer than expected. For instance, there is a family dispute, or a person contests the decedent’s will. Also, the larger the size of a person’s estate and the more complex their assets are, the longer it will take to distribute the person’s estate.
Can I Avoid Probate in Virginia?
Some people would want to avoid probate for a lot of reasons. The probate process can be expensive and time-consuming. Further, personal, family, and financial information are open to the public during the proceedings. Thus, the details of one’s estate may be revealed to the public.
Setting up a trust is one way of avoiding probate. If a person’s assets are placed in a trust, the assets are immediately turned over to the beneficiaries upon the grantor’s death without going through probate. Talk to your lawyer to find out if the decedent’s assets do not need to be probated.
How Can A Probate Lawyer in Virginia Help
Going through probate can be taxing and emotionally draining, especially after the death of a loved one. A probate lawyer can assist you and answer your pressing questions about the will and assets of a loved one who recently passed away.
Contact Kevin C. Martin, Attorney at Law, PLLC, so we can give you the legal guidance and support you need. Whether you want to know more about probate or need assistance in estate planning, we are here to answer your questions.
Our law firm has offices both in Washington, DC, and McLean, Virginia. Call us so we can discuss estate planning and wealth preservation.