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Probate Administration in Virginia

When a loved one passes away, state law dictates that their estate must pass through probate court to settle final debts and taxes before distributing the probate estate to beneficiaries.

At Commonwealth Life and Legacy Counsel, we strive to help Virginia families understand their loved one’s estate planning and get through probate as quickly as possible. Call the Commonwealth Life & Legacy Counsel law firm from anywhere in Central Virginia at 434-589-2958 and from Powhatan at 804-598-1304 to schedule a consultation. We are pleased to offer free consultations for most of our services, except for Probate cases, for which our firm charges for the initial consultation.

What Is Probate?

In Virginia, ownership is not something that a deceased person can legally enjoy. But because people often own assets when they die, those assets need to be re-titled in the names of living persons. Probate is the process through which the executor of a decedent’s will compiles a list of assets for the probate court to determine the value of the deceased person’s assets. The court will then use those assets to pay the decedent’s

  • Final expenses
  • Debts
  • Taxes

Once they settle any remaining debts, the probate court will allow the executor to distribute the remaining assets to the deceased’s beneficiaries according to their final will and testament.

How Does a Will Affect the Probate Process?

The court will attempt to reserve assets named to beneficiaries in the will for their inheritance rather than applying those values to the decedent’s final debts and taxes. If someone passes away without a will, called “dying intestate,” the court will follow the Code of Virginia § 64.2-200, which dictates the course of intestate succession. This means that probate may be required whether a person dies with a will or without.

What About Small Estates?

A small estate is a probate estate containing assets valued under total $50,000 in the aggregate. Small assets typically include checking accounts, savings accounts, tax refunds, overpayments, and other balances. Virginia allows the custodian, a bank, for example, to turn a small estate asset valued at less than $25,000 to a qualified heir if the heir provides the custodian with a special affidavit called a “small estate affidavit.” You will probably need a qualified probate lawyer to prepare such an affidavit for you if the asset qualifies and you are legally authorized to produce one.

Assets that pass to a beneficiary automatically, such as life insurance policies, payable-on-death bank accounts, and joint tenancy assets do not count toward the value of the deceased’s estate.

Is There a Way to Bypass Probate During Estate Planning?

Before you pass away, you can take steps to ensure that each family member gets their due inheritance without going through probate. Some options to bypass probate include:

  • A living trust. Trusts can automatically bypass probate when you pass away. You can keep assets in a revocable living trust to manage yourself during your lifetime and name a successor trustee to take over managing the trust when you pass away or become incapacitated. Additionally, revocable trusts become irrevocable upon the death of the grantor.
  • Joint tenancy. You can add another person as a co-owner of your assets with a clause “with rights of survivorship.” While this option is not entirely effective in some situations, it offers spouses the opportunity to transfer real estate and bank accounts without entering probate.
  • Tenants by entirety. Holding property as tenants by entirety with your spouse allows for a higher level of asset protection against creditors. To place a lien against property held by tenants by entirety, the creditor must hold a debt against both spouses.

Contact Our Experienced Probate Administration Law Firm in Central Virginia

Probate and estate administration are complex legal procedures. For help with probate administration, estate planning, or probate litigation, turn to our experienced team at Commonwealth Life and Legacy Counsel. Call the Commonwealth Life & Legacy Counsel law firm from anywhere in Central Virginia at 434-589-2958 and from Powhatan at 804-598-1304 to schedule a consultation.

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