
When to File Probate in Virginia: A Guide for Executors
If you have recently lost a loved one in Virginia, you might be wondering what comes next, especially when it comes to managing their estate. One of the first questions you may face is whether probate is necessary. At Commonwealth Life and Legacy Counsel, we help families across Central Virginia—from Fluvanna to Charlottesville—understand probate and ensure everything moves smoothly in the estate management process.
As experienced probate attorneys, Michael and Lelia Winget-Hernandez have guided many families through both straightforward and complex probate processes. Their success in Virginia courts, even with high-value estates, comes from years of practice and a shared commitment to the community. Today, we’ll break down when probate is required in Virginia, when it’s not, and what steps you can expect along the way.
Why does this matter? Delaying probate can lead to creditor problems, frozen assets, and unnecessary family disputes. Understanding your next steps can save time and stress.
When Probate is Required in Virginia
Probate is the legal process that proves a will’s validity and oversees the distribution of a deceased person’s assets. While not every estate requires probate, there are clear situations when it’s unavoidable.
Death with a Will
If someone passes away with a valid will, probate is typically required to officially execute it. The court ensures the will is authentic, appoints an executor, and supervises the distribution of assets according to the deceased’s wishes.
Death without a Will (Intestacy)
When someone dies without a will, it’s called intestacy. In this case, the court follows Virginia’s intestacy laws to determine how to distribute the estate. Probate ensures assets go to the appropriate heirs based on state guidelines, starting with spouses and children.
Assets Held in the Decedent’s Name Only
If the deceased was the sole owner of property, bank accounts, or other assets, probate is required. Even if the will specifies who should receive them, these assets cannot be transferred to beneficiaries without court approval.
Real Estate Ownership
If a decedent owned real estate in their name alone, probate is often necessary to transfer ownership. This applies to homes, land, or rental properties. Without probate, beneficiaries may struggle to sell or manage the property.
When Probate May NOT Be Required
In some cases, probate can be avoided entirely. Here are situations where assets may transfer outside of probate.
Assets with Designated Beneficiaries
Life insurance policies, retirement accounts, and payable-on-death (POD) bank accounts often name specific beneficiaries. These assets pass directly to the named individuals without court involvement, simplifying the process.
Jointly Owned Property
If property is jointly owned with the right of survivorship, it automatically transfers to the surviving owner. This commonly applies to homes, bank accounts, and vehicles shared between spouses or co-owners.
Small Estates
Virginia offers a simplified process for small estates valued under $50,000. If the estate qualifies, probate can often be avoided, making it faster and easier for beneficiaries to claim assets. To proceed, heirs must submit a small estate affidavit to the court.
The Probate Process in Virginia
If probate is required, understanding the steps involved can help you know what to expect. Here’s a general overview:
- Opening the Estate: The executor files the will with the local court and requests to open probate. If there’s no will, an administrator is appointed.
- Inventorying and Appraising Assets: The executor identifies all assets—real estate, bank accounts, investments—and determines their value.
- Paying Debts and Taxes: The estate pays outstanding bills, taxes, and creditor claims using the estate’s funds.
- Distributing Assets: After debts are settled, the remaining assets are distributed to beneficiaries according to the will or Virginia law.
- Closing the Estate: Once everything is handled, the executor submits a final accounting to the court, and the estate is officially closed.
If you are the executor, your role is to manage this process responsibly and efficiently. Though it can feel overwhelming, professional legal support can ease the burden.
Timeline and Deadlines
Understanding Virginia’s probate timelines can help you stay on track and avoid delays.
Recommended Filing Timeline
While Virginia does not have a strict deadline, it’s best to file probate within 30 days of the death. Starting early helps avoid issues with creditors and asset access.
Creditor Period
Once probate begins, creditors have 6 months to file claims against the estate. Executors must notify known creditors and settle legitimate debts during this period.
Overall Probate Duration
Most probate cases in Virginia take 12 to 18 months to complete. However, complex cases—especially those involving disputes or high-value assets—can take longer.
Factors to Consider When Filing
Filing probate isn’t just about following the rules; it’s about protecting the estate and beneficiaries. Here are key factors to consider:
Asset Management
Prompt probate allows the executor to access and manage estate assets. Delays can lead to financial losses, like unpaid property taxes or missed investment opportunities.
Beneficiary Expectation
Beneficiaries often expect a smooth and timely distribution of assets. Filing probate quickly helps set clear timelines and avoid unnecessary frustration or disputes.
Tax Implications
Executors must file final income tax returns and, in some cases, estate tax returns. Missing deadlines can lead to penalties, so it’s important to stay on top of these responsibilities.
Facing Probate in Virginia? We Can Help.
If you’re responsible for handling probate in Virginia, we understand how overwhelming it can feel. At Commonwealth Life and Legacy Counsel, Michael and Lelia Winget-Hernandez are here to guide you every step of the way. With years of experience and a deep commitment to serving Central Virginia’s families, we make the probate process as smooth and stress-free as possible.
Whether you’re in Charlottesville or any of the surrounding counties, we’re your neighbors, and we’re here to help. Contact us today for a consultation—we’ll answer your questions, clarify your options, and provide the support you need.
Call us at (804) 598-1348 or visit our Contact Page to get started.