Navigating Probate in Chesterfield County, Virginia and Throughout The Metropolitan Richmond Area.

What is Probate?

     Probate describes the legal process of administering a person’s assets upon their death. This system generally involves a third party providing a deceased person’s will to the court and then the court overseeing this person’s estate’s asset division and distribution. The court must also ensure the probate process meets the terms of the will and applicable Virginia law. If the deceased person did not have a valid will at the time of their death, the court then must decide how that person’s assets are to be divided pursuant to Virginia law.

     Regardless of whether the deceased person has a valid will at the time of their death, the probate process can prove to be complicated and time consuming.

Important Definitions

     Every probate system uses words and phrases to identify important people and documents throughout the probate process. Some of the most common words and phrases include:

• Administrator: The person who is appointed by the Court Clerk to administer a decedent’s estate.
• Beneficiary: A person or entity entitled to receive a portion (or all of) a decedent’s estate. This designation is usually made through will or trust.
• Certificate of Qualification (also called Letters of Testamentary): A formal instrument of authority and appointment given to a fiduciary by the proper court, empowering him or her to act in the capacity of a fiduciary.
• Decedent: The person who has died and whose assets are the subject of the probate process.
• Executor: The person who is named in a decedent’s will to administer the division of that person’s estate upon their passing.
• Fiduciary: If someone is a fiduciary, they are a person in a position of trust with respect to another person’s property or estate. This term usually refers to an executor, administrator, or trustee.
• Heirs: Someone who would inherit a decedent’s estate if a person died without a will.
• Intestate: When a decedent dies intestate, they did not have a valid will at the time of their death.
• Personal Representative: A person who is allowed to make certain legal decisions on behalf of the decedent as if the decedent were the one pursuing these legal decisions themselves.
• Qualification: A procedure where a person is appointed by the Court Clerk to serve as an executor or administrator of a decedent’s estate.
• Self-Proving: A type of acknowledgement of a testator and the affidavits of attesting witnesses, made before an officer authorized to administer oaths.
• Testate: When a decedent dies testate, they had a valid will at the time of their death.
• Trustee: A person who holds property in trust on behalf of another person or estate. Generally, a trustee is trusted with overseeing an estate, interest, or power on behalf of another person.

How Does the Probate Process Start?

     If there is a valid will, it must be brought to the decedent’s jurisdiction to
start the probate process. A decedent’s jurisdiction is determined by their last
place of residence prior to their death. If the decedent was in a nursing home
at the time of their death, their jurisdiction is determined by the residence they
occupied before they became a nursing home resident.

     If there is a question as to whether a will should be probated at all,
general wisdom suggests it should for at least three reasons:

1. The decedent may have assets that can only be administered by a personal representative (ex. an asset held only in the decedent’s name that is listed in the will to be given away).
2. The decedent may own real estate in their name or jointly with another person.
3. The will would become a matter of public record once it was probated, therefore serving as a genealogical link to the decedent’s family. This public record would also assist beneficiaries and family members in knowing whether they were given a benefit from the decedent.

What is Required to Start the Probate Process?

     The required documents and present people required to start the probate process depend on whether the decedent had a valid will when they died.

     If the decedent had a valid will at the time of their death (testate), the documents and present people needed to start the probate process include:

• The decedent’s original will – a copy will NOT be accepted.
• A certified copy of the decedent’s death certificate.
• If the will is not self-proving, the witnesses or deposition of the witnesses who were present when the will was created.
• An estimation of the value of the decedent’s total probate assets.
• The names, ages, and addresses of the decedent’s heirs.
• A check or cash in the amount of applicable court fees.
• If the named executor in the will does not wish to be the executor of the estate, they must notarize a “renunciation of executor” form and submit it to the court.

     If the decedent did not have a will at the time of their death (intestate), the documents and present people needed to start the probate processinclude:

• A certified copy of the decedent’s death certificate.
• An estimation of the value of the decedent’s total probate assets.
• The names, ages, and addresses of the decedent’s heirs.
• A check or cash in the amount of applicable court fees.
• Notarized consent from all heirs who do not wish to qualify as beneficiaries of the decedent’s estate, assuming the probate process is being started within 30 days of the decedent’s death and the decedent’s spouse consents (or if the decedent did not have a spouse).

How is Estate Value Estimated?

     Estate value is generally measured by adding the value of all real and personal property that was in the decedent’s name at the time of their death. Also be sure to include the value of intangible property, like stocks and bonds, to the estate value calculation as well. Do not deduct a decedent’s debts from the estate value calculation, like loans or mortgages, as they will be accounted for separately. At the end of this process, you should have separate totals for the value of the decedent’s real property and personal property.

If the property was owned jointly, meaning the property was held in the decedent’s and another person’s name, or if the property is payable to a third party upon the decedent’s passing (ex. a life insurance policy), then the value of that property should not be added to the decedent’s estate value calculation.

Conclusion

     The process of presenting proper documents, persons, and calculations to start the probate process can become difficult and overwhelming. When the probate process actually starts, even more issues can arise, such as a third party challenging the validity of the will.

     If you would like assistance during any stage of the Virginia probate process, please call one of our offices at 804-325-1245 (Richmond) or 757- 941-4298 (Williamsburg) to discuss how our attorneys can be of assistance.

Special Thanks to Brayden Meadows for his assistance with this article.