Probate and Estate Administration

When a person dies, someone must administer the estate, which contains all of the decedent’s possessions. If the individual died without a will or a trust, Virginia law dictates the distribution of the estate’s assets.  However, all the assets must be gathered, inventoried, managed, and distributed in compliance with Virginia’s probate law. If you have been named the personal representative/executor of a deceased person’s estate, our probate estate administration attorneys at PJI Law can help.

The complexities of the probate and estate administration process can feel overwhelming without experienced legal guidance. Seeking to understand what qualifies as probate assets, paying all the debts of the estate (including outstanding debts), filing a final income tax return for the decedent, dealing with family members, and undergoing the court process can create additional stress and worry — all while grieving the death.

That’s where an estate administration attorney from PJI Law can ease your burden. Let us assist you with personalized service and attention throughout the estate administration process.

Key Takeaways About Probate Estate Administration in Richmond Virginia

Probate and estate administration — the legal process of settling an estate after someone dies, follows a specific process in Virginia:

• Probate Court Location: In Virginia, there is no separate probate court. The will should be probated in the circuit court in the county or city where the decedent resided at the time of death.
• Probate Process Duration: The probate process in Virginia can take anywhere from six months up to a year or more. This timeline varies depending on the size and complexity of the estate.
• Initiation of Probate: The probate process in Virginia is typically initiated by the filing of a will, if one exists, and the qualification of a Personal Representative to administer the estate.
• Non-probate assets: Some assets do not undergo probate, including life insurance proceeds, retirement accounts, and other assets with named beneficiaries.

What Is Probate?

Probate refers to the legal process of administering the estate of a deceased person, including the deceased person’s property and assets after their death. Because probate is also public, it does not afford family members privacy. If the decedent died and left behind a valid will, the will dictates the distribution of their assets. However, if a person dies without a valid will, known as dying intestate, Virginia law determines the distribution of the decedent’s property and assets — which may or may not align with their desires.

Is it Possible to Avoid Probate in Virginia?

Virginia does not always demand probate. Whether an estate requires probate or not depends on the deceased person’s assets. Some of the decedent’s assets can bypass probate and be directly given to the named beneficiaries. Non-probate assets could include:

• Retirement accounts
• Retirement plans
• Joint bank accounts
• Payable-on-death or transfer-on-death accounts
• Joint tenancy assets
• Property in a living trust
• Life insurance proceeds
• Pension benefits payable to a beneficiary
• Assets that have proper beneficiary designations

Probate is especially helpful if the deceased person’s property was solely in their name. Probating the will formally initiates property transfers to the recipients or heirs according to its terms. The law generally requires probate whenever a decedent dies and leaves behind property titled exclusively in their name. However, small or simple estates may undergo an abbreviated probate, allowing loved ones a streamlined estate administration process.

How Does Probate and Estate Administration Work in the Absence of a Will?

In Virginia, if a decedent died without a will, intestacy laws dictate estate administration, with probate following a predetermined set of rules for distributing the assets of the deceased person to their heirs.

Per Virginia statute 64.2-200, asset distribution in intestate succession usually follows this hierarchy:

1. If the deceased had a surviving spouse and all children are common to the spouse, the entire estate generally goes to the spouse.
2. If the deceased had a surviving spouse and any child not common to the surviving spouse, the estate is divided between the spouse and all children according to specific percentages outlined in the statute.
3. If there is no surviving spouse and there are no descendants, the estate may pass to other relatives in a defined order of priority, such as parents, siblings, nieces, nephews, or more distant relatives.

The court oversees the process of identifying heirs, establishing the validity of claims, and distributing the assets accordingly. While it’s important for every Virginia resident to know and understand state laws governing intestate succession to facilitate a smooth transition of assets in the absence of a will, establishing a legally valid last will and testament with the help of an experienced attorney is a wise decision to make for yourself and your loved ones. In a will, you can include a named beneficiary or beneficiaries, and parents of minor children can designate guardians to care for them in the event of both parents passing.

Initiating a Probate Proceeding and Qualifying as the Executor If There Is No Executor Named in the Will

If the decedent’s will does not name a personal representative, an individual can initiate probate by taking the decedent’s last will and testament and a certified death certificate to the clerk of the court and requesting to qualify as an estate administrator, the estate’s appointed legal representative. They must visit the circuit court in the city or county where the decedent owned property or passed away.

To qualify as a personal representative, an individual must:

• Be over 18 years old
• Acquire a bond or surety, although that may sometimes be waived
• Persuade the court that they are competent and capable of serving as the personal representative

People living in another state may still be eligible, but a Virginia resident must accompany them to the Clerk’s Office or agree to serve as the Resident Agent of the estate.

The Role of the Personal Representative in Virginia Probate

In the Virginia probate process, a personal representative administers the decedent’s estate. As we have noted, an individual can become a personal representative either by being named as such in a valid will, or by being appointed by the probate court if no will exists — or if the existing will does not designate a personal representative.

Duties and responsibilities of a personal representative in the Virginia probate process include:

1. Beginning the Virginia Probate Process

The personal representative must first locate the will. Since wills are often kept in safe deposit boxes or locked desk drawers, these are good places to look if unsure of its location. From there, they start the probate process by filing the necessary documents with the circuit court clerk, including the will (if one exists), a petition for probate, and a form listing all heirs or beneficiaries with a claim to the estate’s assets.

2. Inventorying Assets

The personal representative identifies, locates, and takes control of the decedent’s assets, which may include bank accounts, life insurance policies, real estate, vehicles, investments, and personal belongings. The list of assets should include all the property the decedent owned when they died.

3. Paying Debts and Expenses

The personal representative must identify and pay all the decedent’s debts and other expenses owed, including funeral expenses, outstanding debts, the final individual tax return, and other taxes owed by the estate. If the estate earns money while undergoing estate administration, it must pay income tax via an estate income tax return. Estate assets cover probate fees and taxes.

4. Distributing Assets

After settling valid debts, the personal representative distributes the estate’s remaining assets to each named beneficiary, according to the terms of the will or Virginia’s intestacy laws.

5. Accounting and Reporting

The law requires a personal representative to maintain accurate records of all estate transactions, including income, bank statements, expenses, and distributions. Probate court may require them to file periodic accountings.

6. Seeking Legal Representation

The personal representative may seek legal counsel for estate administration. An attorney can help them navigate complex legal issues, interpret the will, handle disputes among beneficiaries, and comply with Virginia’s probate laws.

7. Closing the Decedent’s Estate

Once all debts are paid, assets distributed, and legal requirements fulfilled, the probate court will approve the final settlement of the estate and discharge the personal representative of their duties.

An executor or personal representative can receive reasonable compensation for fulfilling their duties diligently and in accordance with Virginia probate laws.

The Four Types of Probate in Virginia

Virginia has four types of probate proceedings, based on the circumstances surrounding the estate:

1. Small/Simple Estate Administration: This simplest form of probate has minimal court supervision and can generally be used when the decedent’s probate estate is valued at under $50,000.
2. Abbreviated Administration: In circumstances where the value of the decedent’s estate exceeds $50,000 but all distributees of the estate are also serving as the estate’s personal representative(s), an abbreviated administration option is available. Once the probate court approves the filed inventory and confirms the settlement of all valid debts, the personal representative(s) can complete the estate administration without extensive judicial involvement or the need to file a formal accounting.
3. Full Administration: In matters where not all residual beneficiaries under a decedent’s will are also serving as the personal representative(s), there are disputes among the beneficiaries, or challenges to the validity of the will, a full administration must take place. This process could involve hearings to resolve disputes and the court must approve the formal accounting filed by the personal representative before they can be discharged of their duties.
4. Ancillary Probate: When a non-Virginia resident dies owning property located in Virginia, ancillary probate may be required. This process allows for the administration of the decedent’s Virginia assets while the primary probate proceedings take place in their state of residence.

The Duration of Probate and Estate Administration

Probate can take a considerable amount of time, ranging from six months to many years. After an individual’s death, state law generally forbids the closure or distribution of their estate before the end of the creditor period. In contrast to most states, Virginia does not give the decedent’s creditors a deadline for making a claim. However, the personal representative can impose a deadline by initiating a Debts and Demands Hearing.

Many other factors can affect the length of probate, including:

• The existence of a testamentary trust
• Family member disagreements
• Individuals contesting the will
• The scope of the estate planning completed by the decedent prior to their death

The amount of assets and the size and value of any real estate upon the decedent’s death can also affect the duration of probate administration.

Can a Deceased Person’s Heirs Receive Their Real Property Without a Will?

Virginia law allows a deceased person to transfer their real estate property to named beneficiaries through the Virginia transfer on death deed (TOD deed). A TOD deed, also known as a “beneficiary deed,” enables an individual to designate a beneficiary to inherit their real estate property upon their death. It’s a simple and straightforward document that can save grieving families time, money, and stress during an emotionally charged time.

One of the most significant advantages of a TOD deed is that it allows a decedent’s real property to pass directly to their beneficiaries without initiating a formal probate process.

How Does an Estate Administration Attorney Help?

A knowledgeable and experienced estate administration attorney in Virginia probate can facilitate the probate process for personal representatives and beneficiaries in multiple ways.

1. Legal Knowledge and Experience: With extensive knowledge of the laws and procedures of Virginia probate, an attorney can demystify complex legal concepts, interpret state statutes, and ensure that the estate administration complies with all regulations.
2. Estate Administration: An attorney can assist the personal representative in fulfilling their duties, such as gathering assets, paying the decedent’s debts, filing tax returns, and distributing assets to beneficiaries.
3. Court Representation: In contested matters, an attorney can resolve disputes, represent the estate in court, advocate for the interests of the estate, minimize potential personal liability for the personal representative, and handle any legal challenges that show up during probate.
4. Beneficiary Protection: An estate administration attorney protects the rights of beneficiaries, seeks to ensure that beneficiaries secure their rightful inheritance, addresses any concerns or disputes that may arise, and safeguards against potential conflicts among heirs.
5. Tax Implications: Probate attorneys can counsel the executor on estate tax laws and issues, such as claiming estate tax portability for surviving spouses and seeking to maximize the benefit for beneficiaries.
6. Peace of Mind: Personal representatives and beneficiaries can gain peace of mind during a time of mourning by allowing an attorney to handle the legal aspects of the probate process.