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What is Probate and How Does It Work?

When a person dies, a legal process takes place (in most cases) which includes the following:

  1. It will be determined whether the will of the deceased person is valid;
  2. The assets of the deceased will be identified and inventoried;
  3. Any property will be appraised;
  4. All debts and taxes will be paid, and
  5. The remainder of the property will be distributed according to the wishes of the deceased (if there is a will) or by the state, if no will exists.

Executor’s Duties

If you have named a person in your will as executor, then when you die that person will file probate paperwork with the County Circuit Court. In the state of Virginia there is no separate probate court, rather all probate cases go through the County Circuit Court and are handled by the Clerk of the Circuit Court or a deputy clerk. If you did not name an executor, or if you did not leave a will at all, the judge will appoint an executor.

The job of the court will then be to first determine whether your will is valid—whether it was written by you, properly executed, and is the last will you prepared. If the will was not self-proving, meaning a properly executed affidavit is attached, then at least one of the attesting witnesses will have to be present to “prove” the will. Next, your executor will present the court with an inventory of your assets and debts and notify, in accordance with the rules of the state, your relatives and creditors.

Special Issues with Probate

Probate can take from several months to a year or more, depending on the level of assets and debts you left behind. If you happened to leave more debt than assets, your executor may need to sell your real estate or other property in order to pay those debts. Or, if you left cash bequests to family members and/or friends, but had no money in the bank, then your art collection might need to be liquidated so there will be cash to leave to your named beneficiaries. Estates over $15,000 will be subject to a probate tax, based on 10 cents for every $100 of value.

In some cases, immediate family members might be able to petition the court to release funds to cover support while the probate is going through the process. The court will give your named executor (or the court-appointed executor) permission to pay all your debts and any taxes which are due, dividing the remainder among those beneficiaries named in your will.

If you left no will, the state will determine who will benefit from your estate. Up to six months from the time your will is admitted to probate, any person who feels they have a claim on your estate can lodge an appeal. There are other potential issues which may arise during probate:

  • A photocopy of the will won’t be accepted, rather the original must be produced. If the original will cannot be located, the executor will be required to file a petition with the court to establish that the document existed, and that it was either lost or inadvertently destroyed rather than being revoked or destroyed by the deceased.
  • If there are questions raised regarding the validity of the will, a bill to establish or impeach the will may be filed by any interested party. Such a lawsuit must be brought within one year of the date the first will was probated.

There is no statute of limitations regarding the probate of a will which was dated after the date of a will already probated or when no will was probated. If you are concerned about how your estate will be disbursed after your death, it could be beneficial to speak to an experienced Virginia estate attorney. Please contact us today to learn more!