McLean Probate Attorney
Probate is the court proceeding where a will is verified, and an estate is administered according to the terms of the will. Probate is also used where no will exists, in which case an estate will be administered under the terms of Virginia law. The process includes the collection of assets, the liquidation of liabilities, the payment of taxes, and the distribution of property to heirs. Our McLean probate attorneys provide representation in both probate and estate administration. Each state requires probate as this process allows the court to check for potential fraud in a person’s last will and testament and ensure that the assets within a will are properly distributed.
If there is a will in place, the probate court will ensure that the last will and testament is valid and then direct the executor to pay the principal’s debts and distribute assets as directed by the will. However, if someone passes away without a will, the probate court must first appoint a personal representative—this representative performs the same tasks that an executor does when a valid will is in place.
What Does a Probate Lawyer Do
A McLean probate lawyer can take care of or help the estate with many legal issues. However, the majority of what a McLean probate lawyer does will largely depend on whether the estate going through probate has a will.
When There Is a Will
If someone dies with a will, a McLean probate lawyer will typically focus on advising members of the estate such as the executor, personal representative, or beneficiary on legal issues. For example, a McLean probate attorney might help the estate by reviewing the principal’s will to ensure that the principal did not sign or create the will under duress. This is a significant portion of the process as if someone challenges the will during the probate process, the court will have to stop what they are doing and have a formal hearing where they review the validity of a will.
When There is No Will
If someone passes away without creating a will, the person is said to have died “intestate.” If you die under the intestate definition, the administrator of the estate will have to distribute all the assets within an estate according to a state’s intestacy laws. If this occurs, the assets will not be distributed to the beneficiaries according to the principal’s wishes. For example, if the person who dies has a spouse, the spouse will likely receive all the estates assets. However, each state has different intestacy laws so the distribution of assets to family members could vary widely.
In cases of intestacy, a probate attorney will typically assist the administrator of the estate with distributing the assets within the estate according to the laws of the state. A probate attorney must still follow the state laws regarding the distribution of assets. However, having someone with knowledge of these laws is invaluable as they are able to ensure that the assets are distributed quickly and done so without breaking any state laws.
Finally, a McLean probate attorney can help someone secure and file the documents required for a probate court to appoint someone as the administrator of the estate. For a court to name someone as the administrator of an estate, the person must secure “renunciations”. Renunciations come from the other relatives of the person that died. A renunciation is simply a legal statement renouncing one’s right to administer the estate.
Dealing with Creditors and Beneficiaries
A McLean probate attorney can be especially helpful when dealing with creditors or other beneficiaries. Initially, the court appoints a personal representative to an estate. Once this occurs, a Notice of Appointment, Notice to Creditors, and Notice to Unknown heirs must be published by the personal representative in local newspapers where the principal of the estate lived. After this, creditors to the principal will have six months after the first publication to file claims against the estate. Once this period passes, creditors cannot bring forth claims. A McLean probate attorney will help you notify creditors by ensuring that you make an informative ad and place the ad into the proper newspapers to avoid a creditor bringing litigation against you or the estate.
A probate lawyer can help you while you are dealing with creditors to an estate. However, they are even more useful when working with other beneficiaries to the estate. If everyone that is a beneficiary to an estate gets along, the process of distributing assets can be informal. In this scenario, a lawyer may not always be necessary. However, if you are a personal representative of an estate that has unsatisfied beneficiaries, a lawyer will be extremely useful to make or advise you on when to write letters, send emails, and make phone calls. By having a lawyer assist you with this portion of your duties, you will eliminate the opportunity for beneficiaries to bring forth any legal action against you.
Other Common Ways a Probate Lawyer can Help
In addition to the actions described above, a McLean probate attorney can help an estate with the following actions:
- Collecting proceeds from life insurance policies
- Identifying and securing estate assets
- Obtaining appraisals for the decedent’s real property
- Assisting in the payment of bills and debts
- Preparing and filing all documents required by a probate court
- Determining if any estate or inheritance taxes are due, and making sure the estate pays these debts
- Resolving income tax issues
- Managing the estate checking account
- Transferring assets in the decedent’s name to the appropriate beneficiaries
- Making a final disbursement of assets to beneficiaries after all bills and taxes have been paid
Probate State Specifics
Who is Responsible for Managing a Probate Estate in Virginia
In Virginia, a personal representative is in charge of administrating your probate estate. Personal representatives are named in a person’s will. Most individuals also name a substitute personal representative in their will in case the person they name cannot serve for any reason. If you do not have a will, a family member or other interested party must petition the court for appointment as the personal representative. Finally, preference is given to certain family members beginning with the surviving spouse and children.
The responsibilities and duties of a personal representative can be overwhelming, especially in the case of large estates, estates that involve probate litigation, or estates in which a family member plans to contest the will. Furthermore, our McLean probate lawyers assist personal representatives in fulfilling their duties and responsibilities, including providing legal advice, monitoring deadlines, completing forms, and filing documents with the court.
Some of the duties and responsibilities of a Virginia personal representative include:
- Filing a petition with the court to open a probate estate
- Notifying the heirs and creditors of the decedent’s death and the opening of an estate
- Identifying and securing the decedent’s property
- Completing an inventory and appraisement of the property
- Reviewing creditors’ claims and filing objections as needed
- Paying just debts of the estate and the decedent
- Distributing the property of the estate according to the terms of the will or the Virginia intestacy laws
- Preparing and filing final tax returns
- Preparing and filing an accounting with the court
The above list is not an exhaustive list as each probate case is unique. As such, there could be additional responsibilities that you might have as a personal representative depending on the circumstances and faces related to the probate case.
We understand that you may still be coping with the loss of a loved one. The stress of dealing with a probate estate can add to your stress and anxiety. Our legal team handles all aspects of the probate process. Our goal is to help you probate your loved one’s estate as quickly as possible so that you can move forward with wonderful memories of your loved one without the stress of a court process.
What if Someone Challenges a Will?
In Virginia, an heir or beneficiary may challenge the will. However, the burden of proving that the will is not valid rests with the person petition the court. Family members challenge wills for a variety of reasons. Firstly, they may disagree with the proposed distribution of the estate. Secondly, they may believe that an heir used undue influence to force the decedent to change his or her will for the benefit of the heir. Finally, they might believe that the person lacked the mental capacity to sign a legal document.
Whatever the reason may be, if a will is challenged, the probate process becomes more time-consuming, frustrating, and costly.
By having a McLean probate attorney draft your will, you reduce the risk that a court will deny your will. Additionally, an attorney understands the laws governing wills and probate matters. Finally, by working with an attorney, you have the peace of mind of knowing that your will meets all legal requirements for a valid will in Virginia and is worded in a way that discourages will contests.
Situations Where a Will May Not Need to go Through Probate
A will does not allow you to avoid probate. However, there are multiple ways for you to allow your assets and family to avoid the probate process.
Hold Property Jointly
There is one main benefit of adding a joint owner to your assets before you pass away. This benefit is that the assets automatically transfer to the co-owner without having to go through probate.
Joint Tenancy with Right of Survivorship
Owning property that is in joint tenancy when you die can help you avoid probate. This option avoids probate because the assets automatically go to the surviving party without having to pass through probate.
Tenancy by the Entirety
Tenancy by the entirety avoids probate in the same way as joint tenancy with right to survivorship. However, this option can only be used by married couples.
Create a Revocable Living Trust
A revocable living trust allows you to place your assets and property in the trust. Furthermore, the trustee manages the trust. The trustee is someone you designate who will manage the assets and distribute them once you pass away. To avoid probate, you must designate someone else to manage the assets. The reason for this is that once you fund the trust, the trustee will own the trust property.
Create Pay-on-Death Accounts and Registrations
This type of account allows you to list a beneficiary. Thus, when you pass away, the monies in these accounts will automatically transfer to the beneficiary.
The most extreme way to avoid probate is to simply gift your assets to family or friends. Even if you do not give every single asset you own, gifting some of your assets will lower probate costs.
Most states have a small estate probate exemption. In this case, if the total value of someone’s estate falls into the small estate threshold, the estate does not need to go through probate.
Because each state has specific laws and procedures tied to probate, finding correct and relevant information is difficult. By hiring a McLean probate attorney, you are enlisting someone with knowledge of the Virginia specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors, beneficiaries, and any other legal issues that may occur. A probate attorney will also be able to help you distribute the assets in the most tax-efficient way.
Finally, a probate attorney is helpful in assisting with marshaling and valuing all the estate assets, assisting with finishing the accounting, completing the estate tax returns (death tax returns), and overseeing the asset distribution process. Most importantly, however, a probate attorney can asset the personal representative with preparing the initial pleadings to open the estate. A probate attorney can also help to guide the personal representative through their fiduciary obligations and important deadlines.
Antonoplos & Associates has a strong background in probate and estate planning. Thus, our attorneys bring a unique point of view to all areas of estate planning including:
- Probate avoidance
- Probate litigation
- Trustees and guardianships
- Joint tenants
- Separate and community property
- Right of survivorship and intestate succession
When you work with the skilled lawyers of Antonoplos & Associates, you will find everything you need to know about probate.
Contact our Law Office for More Information
For more information regarding our group of McLean probate attorneys, contact us at 202-803-5676. You can also directly schedule a consultation with one of our skilled attorneys. Additionally, for general information regarding probate law, check out our blog.