What is Probate?
Virginia 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 lawyers 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.
Responsibilities of a Personal Representative
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. 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. Our Virginia 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.
After appointing a personal representative, the probate court will have to appraise the deceased person’s property, find creditors and beneficiaries, and decide how the assets will be distributed among the beneficiaries. As described, probate with a valid will and probate without a valid will is drastically different. However, in general, each probate case typically includes a specific few actions.
General Focuses of Probate
- proving in court that a deceased person’s will is valid
- identifying and inventorying the deceased person’s property
- appraising the principal’s property
- paying debts and taxes, and
- distributing the remaining property as the will—or state law, if there’s no will—directs.
This list outlines what generally occurs during probate. However, each state has specific rules regarding the probate process as well as different costs associated with probate. Additionally, if an estate falls below a certain threshold, it is a small estate. With small estates, they do not require court supervision to be settled. As with the rest of the probate process, the terms of a small estate is state-dependent. Antonoplos & Associates frequently assets clients throughout Virginia with probate.
Probate State Specifics
To start the probate process, a personal representative must file a petition for probate with the state court. This petition must include the name and address of the petitioner and information regarding the death of the principal. In addition, one must tell the court if the principal made a will, as well as estimate assets and debts. One final note on the description of debts and assets. You must also include the names of potential creditors and beneficiaries.
Once the court receives this petition, they will either issue an order that grants or denies the petition. If the petition is granted in Virginia, the personal representative will receive a Certificate of Qualification. The Certificate of Qualification authorizes the personal representative to work on valuing an estate, paying off creditors, and distributing assets to beneficiaries. While the personal representative has these power once they receive the Certificate of Qualification, they cannot begin these tasks until the probate court validates the last will and testament.
In Virginia, you must file the petition for probate with the local circuit court where the principal lived. Once filled, it usually takes 6 – 12 months for the Virginia courts to conclude the case. In Virginia, there is no limit for how long the personal representative can wait to file a petition. However, a family should file a petition no more than 30 days after the death of the principal. In Virginia, there’s no set time for creditors to make claims against the estate. However, after six months, the executor or personal representative can petition the court to hold a Debt and Demand Hearing. Once the date is set for the hearing, the personal representative must publish a notice in local newspapers. Creditors can make a claim at the hearing but cannot do so after that.
Finally, Virginia’s small estate proceedings occur if the estate is under $50,000. To move forward with a small estate proceeding, Virginia courts require a personal representative to file a petition at least 60 days after the principal has passed. Additionally, an estate valued at less than $25,000.00 may pay or deliver that asset to any successor without an affidavit. The personal representative must wait 60 days after the principal’s death to distribute an estate valued under $25,000.
For additional information regarding probate in Virginia, check out the state’s probate website.
How a Probate Attorney Can Help
Not every family needs to hire a probate attorney after the loss of a loved one. However, because each state has specific laws and procedures tied to probate, finding correct and relevant information is difficult. By hiring a probate attorney, you are enlisting someone with knowledge of the state-specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors. Finally, a probate attorney will 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.
Contact our law office for more information
For more information on the probate process or how our attorneys can help you, contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys.