“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 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. Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg).