Commonly Asked Questions Concerning Probate

The Office of ProbateAnd the Administration of Estates   LAWS ARE SUBJECT TO CHANGE ANNUALLY. IT IS YOUR RESPONSIBILITY TO DETERMINE IF AMENDMENTS HAVE BEEN MADE TO ANY STATUTES REFERENCED IN THIS GUIDE FROM THE DATE OF ITS LAST REVISION.   What is Probate?

Probate is the procedure whereby a Will is admitted to record in the Clerk?s Office, or the process of qualifying a person as Executor or Administrator of an estate, or the entire process of administering an estate.

To probate an estate in Virginia, you must go to the Circuit Court of the county in which the decedent resided at the time of death.  It is requested that an appointment be made with the Probate Department to probate an estate.

It is necessary to probate an estate when the decedent has solely held assets; that is, assets that do not have a joint or co-owner with rights of survivorship, a beneficiary (on the security or account, not in the Will) or a pay on death designee. Assets include: real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities. 

If the decedent died with a Will, bring the following items to your appointment:

The original signed Will. A certified copy of the death certificate. Witnesses to the Will or depositions of witnesses, unless the Will is self-proving. If the Will is self-proving, you do not need to bring the witnesses to the Will or depositions of the witnesses. A named executor residing outside of Virginia who wishes to be appointed as executor must bring a Virginia resident to the appointment to either co-qualify or be designated as a registered agent; Virginia Code §26-59 governs which procedure to follow. The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles etc.) and the fair market value of real estate located in Virginia which must pass through probate. The names, ages and addresses of the heirs at law. The heirs at law are not necessarily the beneficiaries of the Will. Heirs at law are determined by kinship to the deceased and are set by  Virginia Code §64.1-1 If the executor named in the Will does not wish to serve, they must submit a notarized renunciation letter. A death certificate must be presented for the named executor if he/she is deceased. Cash or check to pay the probate fees and taxes.  

If the decedent left no Will, bring the following items to your appointment:

A certified copy of the death certificate. Names, ages, and addresses of the heirs at law. The heirs at law are determined by kinship to the deceased and are set by Virginia Code §64.1-1 An administrator residing outside of Virginia who wishes to be appointed as Administrator must bring a Virginia resident to the appointment to either co-qualify or be designated as a registered agent; Virginia Code §26-59 governs which procedure to follow. The person(s) having preference of appointment as Administrator for an Intestate Estate can be found Virginia Code §64.1-118 The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles etc.) and the fair market value of real estate located in Virginia which must pass through probate. Cash or check to pay probate fees and taxes. Written waivers from all other competent distributees must be presented if qualification is within thirty days of the date of death.  

Probate fees and taxes are based on the amount of the estate to be probated.

Probate Tax - (For example, if an estate is valued at $100,000.00, the State probate tax would be $100.00 ($.10 per $100.00), and County probate tax would be $33.33 (1/3 of total state probate tax).

Clerk Qualification Fees vary due to the types of probate documents that need to be recorded.  Exact fees and taxes will be calculated and collected at the probate appointment.

Federal Estate tax questions must be answered by the IRS.

Frequently Asked Questions:  Q. When is it necessary to probate an estate? 

A. An estate must be probated when the decedent has solely-held assets that do not have a joint or co-owner with rights of survivorship, or a beneficiary (not in the will but actually on the account or security), or a pay-on-death designee. Assets include real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities.

A personal representative must qualify to file a wrongful death suit or to continue a pending suit when one of the parties dies before the conclusion of the suit.      

Q. Where should I go to qualify as a personal representative for an estate?  A. To the clerk's office of the circuit court of the jurisdiction:

where the decedent was last known to reside (to include assisted living facilities), if none, then where the decedent owned real estate, if none, then where the decedent died or had any estate For persons residing in a nursing home/convalescent home, pursuant to Virginia Code § 64.1-76, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient. However, that such presumption may be rebutted by competent evidence.  

Q. Where is the Loudoun County probate office?

Loudoun County Court House18 East Market Street

Leesburg, VA 20176

Office hours are 8:30 a.m. to 4 p.m., Monday through Friday. Please call to schedule an appointment. Appointments generally are approximately 45 minutes to 1 hour. Please arrive at least 15 minutes prior to your scheduled appointment to allow for parking and to pass through court security.   

TESTATE PROCEDURES 

Q. What is the procedure to probate an estate with a will? 

A. The executor named in the will must make an appointment with the probate department to probate the will and qualify as executor. The named executor should be a Virginia resident, however, statutes will allow out-of-state residents to qualify, if a Virginia resident co-qualifies or the executor has a resident agent.

Q. What if the named executor does not wish to serve? 

A. The named executor must prepare a notarized statement renouncing the appointment. Priority goes to any alternates named in the will. If no alternates are named, or if any alternate executor renounces the right to serve (following the same procedure as the first named executor), then an "Administrator C.T.A." will need to be appointed and qualify as such. (Virginia Code §64.1-116, as amended).

Q. What if the named executor is deceased? 

A. The alternate Executor or Administrator C.T.A. must present a certified copy of the death certificate of the deceased executor at the probate appointment.

INTESTATE PROCEDURES 

Q. How is qualification as administrator determined?

      Virginia Code §64.1-118 

During the first thirty days following the intestate's death, the clerk may grant administration (i) to a sole distributee or his designee or (ii) in the absence of a sole distributee, to any distributee or his designee who presents written waivers of right to qualify from all other competent distributees.  

After thirty days have passed since the intestate's death, the clerk may grant administration to the first distributee, or his designee, who applies therefore, without either waiting for any further period of time, or requiring the consent or waiver of any other distributee; provided, however, that if, during the first thirty days following the intestate's death, more than one distributee notifies the clerk of an intent to qualify after the thirty-day period has elapsed, the clerk shall not appoint any distributee, or his designee, until the clerk has given all such distributees an opportunity to be heard. If more than one distributee notifies the clerk of intent to qualify after the thirty-day period has elapsed, those distributees must petition the court to be appointed.  

After sixty days have passed since the intestate's death, the clerk may grant administration to one or more of the creditors or to any other person, provided such creditor or other person certifies that he has made diligent search to find an address for any sole distributee and has given not less than thirty days notice by certified mail of his intention to apply for administration to the last known address or addresses of the distributee discovered or alternatively, that he has not been able to find any such address. Qualification of a creditor or person other than a distributee is not subject to challenge on account of a failure to have made the certification herein required.  

The court may appoint administrators under the same conditions as herein provided for the clerk, and when the court determines that it is in the best interests of an intestate's estate, the court may depart there from at any time and appoint such person as the court, in the exercise of its discretion, deems most appropriate.  

The court or clerk shall not grant administration to any person unless satisfied that he is suitable and competent to perform the duties of his office. A person under a disability as defined in Virginia Code §8.01-2, as amended, is not eligible to qualify.  

Qualifying as an administrator does not automatically make one a beneficiary to the decedent's estate. The beneficiaries in an intestate estate are the legal heirs at law. Heirs at law are set forth by statute. (Virginia Code  §64.1-1).  

General Information 

Q. What should the prospective executor/administrator bring to qualify?

The original signed Will and codicil(s) if any, (for testate estates). A certified copy of the death certificate. Approximate dollar value (as of the date of death) of any solely-held personal assets. Approximate fair market value (as of the date of death) of real estate in Virginia deeded solely to the deceased or the value of the percentage owned by the deceased when the real estate is deeded as tenants in common. Names, ages and addresses of heirs at law. These are individuals who are legally entitled to receive an estate when there is no will, pursuant to Virginia Code §64.1-1, as amended. This list is still required in a testate situation. A check or cash to pay fees calculated during the probate appointment.  The check must include your name, address, and phone number.  Fees are based upon the value of the estate. If bond with surety is required, the surety bond company must attend your scheduled probate appointment to sign the surety bond. If the decedent left no Will, written waivers from all competent distributees must be presented if qualification is within thirty days of the date of death.  

Q. What are the basic duties of an executor/administrator? 

Giving notice of probate to interested parties and filing an affidavit of notice. Filing income, inheritance, or estate taxes with the federal or state government. Filing an inventory no later than four months after qualification date and filing a settlement of accounts or statement in lieu of accounting no later than 16 months after qualification date with the Commissioner of Accounts Office*** (not the Circuit Court Clerks office, until the estate is closed. ***Commissioner of Accounts***

4 Cornwall Street, N.E.

Leesburg, VA 20176

(703) 777- 5300

Notifying the Commissioner of Accounts, William B. Hanes of any change of the Fiduciary?s address. Paying all Probate fees and taxes due to the Clerk of the Circuit Court. Payment of debts in the order set forth by law. (Virginia Code §64.1-157, as amended) 7. Disbursement of remaining assets according to the will or according to intestate law.

Q. Are bonds required? 

A. All fiduciaries must be bonded. State statutes govern whether the bond is with or without corporate surety. If corporate surety is required, the Probate clerk will advise you on how to obtain a bond with surety when your probate appointment is scheduled. The probate clerk will set the appropriate bond at the time the fiduciary qualifies. 

Q. How long does it take after qualification to complete the probate process? 

A. Finalization of an estate varies in time depending upon various circumstances. A fiduciary must file an inventory within four months from the qualification date. A first accounting or statement in lieu of accounting must be filed within sixteen months from the qualification date. Fiduciaries file these documents with the Commissioner of Accounts office. The fiduciary will get a packet at the time of qualification containing instructions and other necessary forms to be completed to properly administer the estate. Any question regarding these forms should be directed to the Commissioner of Accounts office. 

Q. What if the only asset solely held by the decedent was real estate? 

A. When there is a will, the executor should make an appointment in the jurisdiction of probate (where the decedent resided at the time of death) to record the will without qualification (unless the will specifically directs the executor to sell the real estate). When there is no specific directive to sell, the statutes in the Commonwealth of Virginia do not require an executor to qualify. Once the will has been recorded, the real estate passes automatically, by operation of law, to the beneficiary of the real estate under the will. 

If the decedent is a non-resident of Virginia, and a probate has been opened outside of Virginia, and if the decedent owns real estate in Loudoun County, to transfer title to either the named beneficiaries or heirs at law, an exemplified (or triple sealed) copy of the probate documents from the non-Virginia Probate Office must be obtained and recorded in Loudoun County.  Recording fees and probate tax must be collected and a new list of heirs for Virginia must be recorded. Ancillary administration is not required in Virginia, unless it is a directive under the will to have the real estate sold by the executor. When this directive is absent, upon recording the will, the real estate passes automatically, by law, to the beneficiary of the real estate in the will. The real estate may then be sold by the beneficiary, as a beneficiary (not as an executor). 

For an intestate estate where real estate is the only solely held asset, the heirs would record a list of heirs/real estate affidavit (obtained from the probate office), and pay proper recording fee. A certified copy of the death certificate must be presented along with the affidavit. 

Q. Suppose the only asset was a motor vehicle? 

A. Probate may not be necessary in this case. Please contact the Division of Motor Vehicles (DMV) at (800) 435-5137 or your local DMV for further instructions. 

Q. Is probate necessary in a small estate? 

A. If an estate consists of personal assets not totaling more than $15,000.00, and sixty days have passed since the date of death and no personal representative has qualified in any jurisdiction, a small estates affidavit may be issued to the heirs at law when there is no will, or to the beneficiaries of a will once the will and heirs at law have been recorded. An appointment with the probate department is necessary for this procedure. A certified copy of the death certificate is also required. 

Q. What is a self-proved will?   

A. A will that has an affidavit attached that contains specific language required by law. The presence of this clause eliminates the need to obtain witness depositions. When a will is presented for probate and does not contain the self-proving clause, a witness deposition will be given to the individual presenting the will. This is to be completed by one of the subscribing witnesses to the will and is submitted to the probate clerk for completion. (See Virginia Code §64.1-87.1 and Virginia Code §64.1-87.2, as amended).

Q. Are holographic wills legal in Virginia? 

A.  Holographic wills (those entirely in the decedent's handwriting) may be admitted to probate if it shows testamentary intent, providing the entire will is written in the handwriting of the testator, signed by the testator and depositions of two disinterested parties who can identify the decedent's handwriting are submitted. 

Q. Can a will be filed with the Clerk’s Office prior to death?

A.   No.  As of October 1997, wills are no longer filed in Loudoun County for safekeeping. 

Q. Where may a copy of a death certificate be obtained in Virginia? 

A.  When a death occurs in Loudoun, death certificates may be obtained from the Loudoun County Health Department at:

1 Harrison Street, S.E. 2nd Floor

Leesburg, VA 20175

(703) 777-0234

If several months have passed after the date of death, death certificates may be obtained from the Bureau of Vital Statistics in Richmond, Virginia.  Call (804) 662-6200 for complete instructions. The Clerk's office is prohibited by law from making certified copies of death certificates.   

Q. Whom does one contact about estate taxes? 

A. Contact the Virginia Department of Taxation at (804) 367-8031 or (703) 359-6715. For Federal estate tax questions contact the Internal Revenue Service. 

Q.  Where may a tax Id number be obtained?

A.  Contact the IRS by using the information form for Tax Id Numbers which is located under forms section.  

Q. Is this all that I need to know about administering estates? 

A. No. There are more than two hundred sections of the Code of Virginia pertaining to the administration of estates. This answers only the most frequently asked procedural questions and is not intended as legal advice.   

PROBATE TERMS AND DEFINITIONS:  

Administrator:  The person appointed by and qualified before the Clerk to administer the decedents estate when there is no will or the will does not name an executor or names an executor who for some reason does not serve. 

AdministratorC.T.A. "Cum testamento annexo", or, ?with the will annexed." An administrator of the estate other than named executor in a will. Serves when all named executors do not serve due to death, incapacity or renunciation of their right to serve. 

Beneficiary: A person or organization entitled to receive a portion of the estate. 

Bond:  A written document in which the obligor formally recognizes an obligation to pay money in the event the obligor does not properly perform his or her duties. 

Certificate of Qualification:  The Certificate of Qualification, sometimes referred to as "Letters Testamentary," is the paper that the personal representative receives from the Clerk at the time of qualification which states that a person has qualified as executor or administrator and has authority to act on behalf of the estate. 

Certified Copy:  A copy of a document or record signed and certified as a true copy by the officer to whose custody the original is entrusted. 

Codicil:  A supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in an existing will. 

Commissioner of Accounts: Person(s) appointed by the Court to monitor the reports and activities of personal representatives. 

Creditor:  Person or organization owed money by the decedent. 

Decedent:  Deceased person. 

Estate:  The decedent's property, including real estate, personal property and all other assets owned or controlled by decedent at the time of his/her death. 

Executor:  The person named in decedent's will to administer the estate. To accept the appointment, the executor must qualify before the clerk. 

Fiduciary: A person in a position of trust with respect to another's property; a general term used to refer to executor, administrator or trustee.

Heirs at Law:  Person(s) who would inherit the decedent's estate if the decedent died without a will. 

Holographic Will: Will written entirely by the testator with his own hand and not witnessed (attested). 

Intestate Estate:  An estate to be administered without a will. 

Inventory:  Detailed list of articles; a list or schedule of property, containing designation or description of such specific article. 

Personal Representative:  A term used to mean either the executor or the administrator of the estate.

Probate: Procedure whereby a will is admitted to record in the clerk's office. Also, it is used to include the process of qualifying a person as an executor or administrator of an estate. It sometimes is referred to as the entire process of administering an estate. 

Qualification:  Procedure whereby a person is appointed by the clerk to serve as executor or administrator of a decedent's estate. 

Self-Proved Will:  Will that includes a notarized affidavit of the testator and attesting witnesses. See Virginia Code  §64.1-87.1 & Virginia Code §64.1-87.2, as amended, for specific language. 

Testator: One who dies leaving a will. 

Testate Estate: An estate to be administered pursuant to a will. 

Will: A written document that gives instructions on how a person wants his or her property distributed after death