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Virginia has no separate probate court. The Will should be probated in the circuit court of the city or county where the deceased resided. Usually the Clerk of the Circuit Court or a deputy clerk handles the probate of Wills and the circuit court judge is not involved. However, any person interested in the Will may appeal to the judge within six months of the order of the clerk admitting a Will to probate.
A person dies testate if they left a valid Will. One dies intestate if the deceased person does not have a valid Will at the time of death. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent's property.
If a person dies without a Will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts, and cost of administration):
The appointment of an executor or administrator is not always required. No formal administration is usually required when the estate is small (under statutory amount) and for payment of small sums by certain government, occupational, and banking agencies.
Additionally, qualification is not necessary to transfer a motor vehicle title. In these circumstances, the Will is probated and nothing further is required. Other instances where formal qualification or administration may not be required are the cases of joint accounts with rights of survivorship in banks, savings and loan associations, or credit unions.
In most cases, the payment of life insurance proceeds to a named beneficiary and the transfer of real estate to a surviving spouse or other person where there were survivorship rights in the deed occur outside the estate.
There is no set time frame in which a Will must be probated or an estate administered. The death of a loved one is a particularly emotional, stressful, and busy time. The probate of the Will can usually wait until a week or so after the funeral. It is recommended that the initial steps in the estate process start within 30 days after death. If any questions exist, call your attorney or the Circuit Court Clerk's Office at 757-382-3000.
Note: All fiduciaries must be bonded. State statutes and certain language contained in the Will govern whether the bond is with or without surety. The Probate Clerk will set the appropriate bond at the time of qualification.
Note: All fiduciaries must be bonded. State statutes govern whether the bond is with or without surety. The Probate Clerk will set the appropriate bond at the time of qualification.
The duties begin with taking possession of the deceased person's property over which the fiduciary (executor or administrator) has control. The fiduciary must determine the assets and liabilities of the estate. The payments of debts, and then, according to the direction of the Will and the laws of the State of Virginia, the sale of or distribution of the property must be accomplished.
The fiduciary must also give written notice of qualification or probate to the heirs and beneficiaries of the estate within 30 days after qualification. Generally, the fiduciary must file a complete inventory of the assets in the estate within four (4) months of qualification with the Commissioner of Accounts (a local person appointed by the Circuit Court to oversee and ensure that estates are properly handled).
Finally, the fiduciary must make an accounting with the Commissioner of Accounts on a yearly basis until a final accounting can be made. Often, a first and final accounting can be made at the conclusion of the first year following qualification.