While Virginia probate is somewhat simpler and less expensive than many other states, it does require publication of the will and can lead to substantial delays in getting your assets to your beneficiaries. The basic rule of thumb with probate is that only assets which are solely owned by you (titled in your name only) must go through the probate process. The process of probate will include:
Proving the authenticity of your will;
Naming an executor if you have not named one in your will;
Inventorying all your assets;
Paying your debts and taxes;
Identifying your heirs, and
Distributing your property.
The Negative Aspects of Probate
Probate can truly be a nightmare for all those involved, so avoiding it when possible makes sense. The probate process requires intrusion into your affairs from the court, lawyers and the public. All of your private affairs become public knowledge, since they are filed in the courthouse. Probate can take as long as a year or more for assets to be distributed, debts and taxes to be paid and inheritances to be given. Further, the probate process costs, on average, five to eight percent of your estate.
In order to avoid the worries of probate, proper estate planning is crucial. An estate plan can minimize delays, cut costs, and can provide for the appointment of executors, guardians and trustees as well as prompt payment of expenses and taxes. If you want to avoid probate, speak to a knowledgeable Virginia estate planning attorney and consider the following:
Consider a living trust. This is the easiest way to avoid the headaches of probate. Think of a living trust as an alternative to a will. While your will distributes your assets when you die, a living trust keeps your property and assets in a trust, allowing you to avoid probate entirely. You can be the trustee for the living trust, using your assets as you see fit until your death. The advantage of holding your assets in trust is that after your death, the trust property is not considered a part of your estate (although it is counted as part of your estate for tax purposes). Upon your death, your named trustee can transfer assets and property to the family and friends you have chosen, avoiding probate altogether.
Avoid probate by naming beneficiaries on your bank accounts and retirement funds. Most valued assets allow the naming of a beneficiary or beneficiaries. Life insurance policies, IRAs, stocks and bonds, 401Ks and pensions all allow the designation of a beneficiary.
Avoid probate by titling your property jointly with a spouse or significant other. Property which is owned jointly automatically passes to the other person on the title, whether you are married or not.
Look into Transfer on Death or Pay on Death beneficiary designations. You can set up your bank accounts or brokerage accounts to automatically transfer to another person upon your death.
Giving away property while you are alive also allows you to avoid probate—if you don’t own it when you die, it cannot be probated. Most gifts are not subject to the federal gift tax, so if it is something you won’t be needing that you intend to leave to a specific person, you might consider gifting those items.
The last thing anyone wants is for the state to take their hard-earned assets. Of course no one wants to confront their mortality by engaging in estate planning, but the alternative is that your assets and property may end up where you would not want them to be. In order to avoid this—no matter how large or small your estate—you must speak to a skilled Virginia estate attorney who can help you determine the best way you can avoid probate.