When you decided to make a plan for your estate, you likely prepared a Last Will and Testament, and figured your job was done. Although having a will is better than not having a will, you may not be aware that some potential probate problems still exist. In the state of Virginia, if a will was left by the decedent and any property owned by that person was in his or her name only, probate may still be required. Probate is handled by the circuit court in the county in which the deceased owned a home or other real estate.
If the person happens to have died while living in a nursing home or a hospital, then the county in which that person lived prior to that is considered his or her residence. An executor is generally named in the will who will start the probate process. Absent a will, or if the executor named in the will is not willing to serve, an administrator will be appointed by the probate court. Probate can be a lengthy and arduous process, and problems can arise in some cases.
The first problem may be associated with unknown or missing heirs. In our increasingly mobile society, family members may be spread across the country—or even in other countries—which makes it difficult to locate all heirs. There may also be heirs that are named in the will that the executor does not know, therefore, has no way of locating. Time-consuming searches may be necessary to locate these unknown or missing heirs. The executor and/or his or her attorney may have to examine all the personal effects of the decedent, speak to the decedent’s friends, neighbors, employers, business partners, and financial institutions, as well as examine motor vehicle and court records, and perform internet searches for the persons being sought.
Another common problem during a Virginia probate occurs when the decedent owned property in another state. Probate must be instigated in each state where there is real property, and each state has its own method for distributing the decedent’s property. The Will must be admitted to probate in Virginia, then submitted to probate in each state in which the decedent owned property. You can probably already see what a nightmare this could be for the executor.
Debt of the decedent can also be a very serious probate problem. Perhaps the person who died actually had more debt than assets. This means there is an insolvent estate, which may trigger intestate laws. The decedent could have a mortgage, credit card debt, an automobile loan, multiple credit card bills and other loans as well. The executor must ensure all debt is fully paid prior to distributing any remaining assets.
Other Problems Associated With Virginia Probate
Aside from these serious probate problems which can crop up after the death of a Virginia resident, there are the “normal” problems associated with Virginia probate. Probate requires that all the affairs of the decedent become public knowledge, and brings sometimes frustrating intrusion by the court and even the public. The judge may be forced to determine legitimate creditors or to rule on distributions to beneficiaries. Further, probate simply takes a long, sometimes, excruciating, amount of time.
Unless the executor is willing to accept personal responsibility for the decedent’s debts—or is absolutely, unequivocally sure there are no debts, assets are not likely to be distributed for a year after the person dies so that creditors can petition the court for full payment. In some cases it may be determined the decedent was not competent at the time of the will, which can lead to a very public process of guardianships and conservatorships.
Don’t type up a will on your own and congratulate yourself for completing your estate planning—it is much more complex than that—especially if you want to avoid the pitfalls of probate. Whether you are planning your own estate, or have been named the executor of someone else’s estate, having a knowledgeable Virginia estate attorney by your side can be invaluable.