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.
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executor or trustee, or (2) want to create a comprehensive estate plan, or (3) are concerned that your will may now be out of date and unenforceable, or (4) need an estate plan that protects your assets and ensures your life savings are not lost to long term care costs, or then passed to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
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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