Probate is Complex—Leave the Details to Us

For those with Will-based Estate Plans, upon death, the estate will have to go through the court process known as probate.

Probate in Virginia is the process of entering a will (testate) or the fact that the deceased died without a will (intestate); and then accounting for the deceased's assets and debts with the Commissioner of Accounts; and finally, distributing the assets following payment of remaining debts to your heirs with the permission granted by the Commissioner of Accounts of your jurisdiction.

This process sounds simple enough, and sometimes can be, but for most clients, they find it takes 12-18 months to complete a “probate” of an estate from Richmond to Williamsburg, Virginia--particularly if they try to do it without hiring a lawyer.

Our firm advises Executors on how to file the appropriate paperwork to meet the requirements of the court. Executors, without legal guidance, sometimes very innocently make mistakes that lead to severe financial distress. Our firm guides executors through probate to ensure everything is done the right way the first time, with ease.

You do not have to use the lawyer that drafted the will to also then handle probate. Upon the death of a loved one, you can choose the firm that is right to guide you as Executor through probate, as your legal advisor.

Don’t delay, call us at 804.325.1245 or 757.941.4298 to schedule your first meeting or attend our free estate-planning seminar today.

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If you (1) are appointed as executor or trustee, or (2) want to create a comprehensive estate plan, or (3) are concerned that your will may now be out of date and unenforceable, or (4) need an estate plan that protects your assets and ensures your life savings are not lost to long term care costs, or then passed to your children only to then be lost in their divorce—we need to meet.

Then call and ask one of Van's assistants at 804.325.1245 or 757.941.4298 to set up an appointment and to see if you can work directly with Van and his team of attorneys and paralegals.

With the life savings and assets of you or someone closest to you on the line—this meeting could save you months of time and thousands of dollars—in a little over one hour of your time.

I just wanted to give a plug and thank you to attorney Van Smith and his staff for all their legal help with taking care of things with [name omitted] dad. The estate and probate process can be a pain and Van and his staff have earned a customer for the long term. Appointment with court clerk went great today and one step closer to settling everything out. --Brandon A., Chesterfield, Virginia, posted on Facebook

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What is probate?

Probate is frequently misunderstood or unknowingly missed, leading to future problems after premature distribution of the estate’s assets.

Probate is administrative process in the Virginia Circuit Court where the decedent last resided, to present the original last will and testament for approval and appoint the executor.

If you have been named “executor”, please note: the executor is NOT free to act on behalf of the estate or its assetsUNTIL appointed by the court.

Probate is the process of appointment of the executor, inventory of the assets, settling of debts and taxes, and ultimately, distribution of the estate to the beneficiaries or heirs, as directed by the will, or without a will, the intestate laws of Virginia.

Many clients come into our office seeking to avoid probate. For example, the surviving spouse may be incompetent, one of the children may be estranged and unable to be located, or one of the heirs may be mentally incapacitated, and therefore, lack the legal capacity to sign the forms. Sometimes, adult children won’t sign needed documents, even when we thought they would.

In these cases, additional legal procedures and costs must be expended to get the will presented and the executor appointed. The executor cannot be appointed until all of the heirs have been located, have capacity (or a guardian appointed), and agree. Failing to agree does not take any effort by the heir other than not signing the waiver, leading to a will being “contested.”

It is very important you have a Will. If you die without a Will, the laws of Virginia will decide who gets your assets and more importantly, who your executor will be. If you have minor or special needs-based children then your will must name a guardian of those minor children or a Virginia court will decide who raises your children.

The worst part of probate is the expense and delay in executing the deceased’s wishes, all while dealing with the loss of a loved one.

Probate takes a minimum of one year. And in many cases, if you are unable to meet all the requirements perfectly (as described above), it could linger for years. In the modern era in Virginia, Probate now averages 2-3 years to complete, though can often be completed faster with competent legal counsel.

Interestingly, you do not need to use the attorney who drafted your will for probate. It is important when you pick your probate attorney to ensure the law firm has experience in probate and, more importantly, has a team in place to move your probate matter through the courts swiftly, while minimizing the cost to you and your family.

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THE PROBATE PROCESS IN VIRGINIA

“Probate” is the process of making sure a last will and testament is genuine and that it complies with the laws of Virginia. After someone passes away an “interested party”, typically the person in the will named as executor, will present the original will to the Circuit Court in the city or county where the recently deceased lived at the time of their death. If they died in a nursing home or hospital it will be the last place they lived before being admitted as a patient. This is the first step in the probate process.

At the court the Clerk of the Circuit Court inspects the will to ensure it is properly proven and validly executed. Most wills today are “self proving.” That means the signatures of the decedent and the witnesses are notarized with a valid affidavit. In cases where the will is not self proving, one of the two witnesses to the will must appear in court and testify to the will’s authenticity and that it was validly executed. If the will is holographic, meaning handwritten, two disinterested witnesses must testify that the handwriting matches that of the deceased.

Once the Clerk is satisfied that the will is genuine and valid it is recorded and the court appoints the executor. The executor is the person responsible for the administration and distribution of the estate. Generally, the first job of the executor will be to estimate the assets of the estate at the time of probate. This is necessary so the court can collect the Virginia probate tax. The probate tax applies to any estate worth more than $15,000 and it is $0.10 for every $100. For example, an estate valued at $500,000 would pay $500 in probate taxes. Additionally, some localities impose extra fees that are 1/3 of the probate taxes paid. In our example of a $500,000 estate that would be an extra $166 in fees.

When the will is probated the court will also assign a Commissioner of Accounts to the estate. The Commissioner of Accounts is someone appointed by the court in that locality to supervise the execution of wills and to hold executors accountable. The executor will be responsible for providing the Commissioner of Accounts an inventory within 4 months of being appointed. This is detailed list of all of the assets held by the estate and their value. Within 16 months the executor must file an accounting with the Commissioner which shows the income and expenses of the estate. The Commissioner plays an important role in ensuring the will is executed in accordance with the decedent’s wishes, but the court can also intervene when necessary.

If you are thinking that this process seems long, burdensome, and potentially expensive you are not alone. Typically, it can take 12 to 18 months to probate a will and cost thousands. That is why people are increasingly choosing to avoid probate by putting their assets into a trust. The attorneys at Smith Strong, PLC have extensive experience creating Revocable Living Trusts and Asset Protection Trusts that avoid probate. On the other hand, if it is too late and you find yourself one of the many executors confused by probate our firm can help you navigate the process.

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Are you concerned about your hard-earned assets passing to the right people at the right time and not losing them to courts, the IRS, or in-laws? You’ve worked hard and sacrificed to have an estate worth protecting and passing to your children even protected from your children’s potential divorce down the road. If you’re feeling confused or frustrated, let us help you create an estate plan that is tax-efficient, asset protected for your elder years, and protects heirs from their own potential divorce or litigation.

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NAMED AS EXECUTOR? NEEDING PROBATE GUIDANCE? LET’S GET STARTED.

Contact Smith Strong, PLC, at 804.325.1245 or using the contact message form below to meet our probate team and begin our probate systematized approach, designed to take care of your family needs. During this sad time, let Smith Strong, PLC, led by attorney Van Smith, support you and your family.

Smith Strong Law Firm’s Award-Winning Estate Planning System:

Estate Planning Workshop: truly understand your options;
Vision Meeting: select the right estate planning solution;
Signing Meeting: review and sign your estate plan;
Funding Meeting: understand with ease the path forward;
Client Care Program: unlimited calls, emails, changes, and review-meetings with our firm, as needed, to make sure your plan remains solid as life changes—we’re there as a trusted family attorney and counselor.

We look forward to meeting with you—and welcome your questions and ideas as we proceed.

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Metropolitan Richmond, VA Serving Central Virginia at Patterson Ave & Parham Rd

Metropolitan Richmond, VA

8411 Patterson Ave, Suite A
Henrico, VA 23229 Phone: 804-325-1245 Fax: 804-482-2661 Location Details Directions