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 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 estate taxes)
Distribute the property as direct by the will—or by the state law if there is no will
In Virginia, if someone has more than $50,000 in total assets or any real property, 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 Hampton Roads 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.
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 (also known as a Personal Representative) starts the process by filing the original will with the court and filing a Petition 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 Petition.
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 if the Executor sells property, of whatever kind, he is generally entitled to a commission of five percent on the receipts. If he has the right to sell, but those entitled to the proceeds of sale prefer to take the property instead, then the Executor is generally entitled to receive five percent commission upon the appraised value of the property. If the Executor is not entitled to sell the property, but must deliver the property outright, he is only entitled to a reasonable compensation to be fixed by the commissioner, or court, upon the proper proof of the expense incurred, the risk taken, and the services rendered.
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?
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, family members of a recently passed loved one find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a 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 very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.
This is why we do things so much differently than most other lawyers and law firms, here at Ionic Law Counsel.
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 with Right of Survivorship,” 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. 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’s probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse (if there are no children from a previous marriage, in which case 1/3 will go to the surviving spouse and 2/3’s to the children) 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).
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 18 months or even longer for complex cases.
How much does Probate Cost?
Probate fees vary depending on the size and complexity of the estate. There are too many factors for a hard and fast rule, but the filing fees, probate tax, attorneys’ fees etc. can be anywhere from 5% to 10% of the estate value.
The Personal Representative (i.e. Executor or Administrator) is also entitled to the statutory fee for their services. The 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.
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! Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.
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 Ionic Law Counsel for A Complimentary Post-Death Estate Review
If you’re ready to get started with the probate process after the passing of a loved one, please contact us at (757) 672-9353 to help determine your next best steps. We are here in service to making this all as easy as possible on you.
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.