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WILLS AND PROBATE

 

 

 

The purpose of this information is to better inform the general public of procedural matters involved in the administration of estates. Nothing contained herein is intended to advise anyone as to legal remedies for a particular circumstance. Circuit Court Clerks and their deputy clerks cannot render legal advice.

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Please call the Circuit Court Clerk's office to make an appointment. Call 276-926-1616

 

Specific procedural questions may be answered by calling this office. If you have a problem involving the legal interpretation of Virginia statutes pertaining to estates, you may wish to contact an attorney licensed in the Commonwealth of Virginia. Probate – Information and forms - http://www.vba.org/?page=guide_estates
 
QUESTIONS AND ANSWERS ABOUT THE ADMINISTRATION OF ESTATES

 

What terms are involved in the administration of estates?

  • The decedent is the deceased, i.e. the person who left the estate. A decedent has died testate if he or she has left a valid will. If a person dies intestate (without leaving a valid will), the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and who will therefore receive the decedent's property.

  • The person who the court appoints to administer the estate for the decedent is called an executor if specified in the will or a personal representative if no executor was specified. Executors and personal representatives are also referred to generically as administrators or fiduciaries. Other people involved in the administration of estates include the Commissioner of Accounts (a local person appointed by the circuit court to oversee the administration of estates), the circuit court clerk and his or her deputies, and the circuit court judges.

  • The will (last will and testament) is a legal document drawn up by a person and/or his or her attorney to specify how a person's property should be distributed and who should administer the affairs of the estate. The List of Heirs is a legal document prepared by the estate's administrator that lists the people specified by the will and/or by law who are eligible to receive distributions from the estate. A copy of a document is certified by a circuit court deputy clerk to indicate that it is a true and complete copy of the original. An exemplified copy also contains the official seals of the judges and clerk of the circuit court.

  • To probate a will is to officially prove it as the authentic and valid last will and testament of the deceased and admit it to record. Qualification and appointment of a personal representative may or may not accompany probate. If a decedent owns real estate in multiple jurisdictions in Virginia, the will should be probated in the jurisdiction where he or she resided and then a certified copy recorded in the other jurisdictions. If real estate is owned in another state, an exemplified copy of the will must be probated in that state.

 

When should a will be probated, or, if there is no will, when should a personal representative be appointed?

Although there is no statutory schedule for probating a will or beginning estate administration, it is prudent to begin the estate process within six months after death.

Who inherits the property of an intestate (person dying without a will)?

The distribution of property for an intestate is governed by the laws of the Commonwealth of Virginia in effect at the time of death. After payment of funeral expenses, debts and cost of administration, the law provides for the following course of descents:

1. All to the surviving spouse, unless there are children (or their descendents) of someone other than the surviving spouse, in which case one third goes to the surviving spouse and the remaining two thirds is divided among all children.
2. If no surviving spouse, all to the children and their descendents.
3. If none, all to the decedent's father and mother or the survivor.
4. If none, all to the decedent's brothers and sisters and their descendents.

There are other contingent beneficiaries set out in the Code of Virginia.

How long does it take to probate a will or appoint a personal representative on an intestate's estate?

The time is usually less than one (1) hour. The time varies depending on the number of potential personal representatives to be appointed, the degree of cooperation that exists between them, their familiarity with the estate, whether or not surety is required on the bond, the accessibility of the subscribing witnesses, and other factors.

What taxes and fees are associated with probate?

  • The state probate tax is 10 cents per $100 of the estate value at the time of death.

  • The recording fee is $16 for the first ten (10) pages of the Will, $16 for the List of Heirs, $43 for an Intestate List of Heirs, now known as a Real Estate Affidavit (if applicable) and $16 for the Affidavit of Notice. Fees for additional pages are as follows: eleven (11) to thirty (30) pages - $30, more than thirty (30) pages - $5

  • The qualification fee is based on the value of the estate.

  • The transfer fee will be charged for any real estate taxed in the name of the decedent.

  • The final federal and state income tax, personal property tax, and estate tax returns must be filed for the deceased and the estate as applicable. Generally, federal and state estate taxes are only due if the gross estate (including life insurance and all property) exceeds the amount on the tax schedule. For more information on taxes, contact the Internal Revenue Service and the Virginia Department of Taxation.

 

Is it always necessary to have someone qualify as a personal representative on a decedent's estate?
Qualification is not always necessary if the estate consists solely of:

  • Real estate held with full rights of survivorship. (When a husband and wife own their home jointly, with right of survivorship, the surviving spouse "automatically inherits" the other half's interest.) While not considered for probate purposes, real property held in this manner is not exempt from estate tax considerations.

  • Jointly owned bank accounts.

  • Insurance or bonds payable to a living beneficiary.

  • Anything Payable On Death (P. O. D.).

 

Who will qualify as an executor under a will?

  • If there is a will, and an executor or executors is named in the will, the person or persons specified will qualify.

  • If there is a will, but no executor is named or the specified executor refuses or ceases to serve, the circuit court may grant administration to an alternate executor or a beneficiary of the will.

  • If there is no will, the surviving spouse is given preference in the appointment of a personal representative, followed by the other natural distributees (children, parents, etc.). Anyone having an interest in the estate may qualify after 30 days

 

Whoever is appointed as an executor must take an oath to faithfully perform the duties required and must give bond in an amount at least equal to the value of the estate. If the will does not waive surety, corporate surety must be given on the bond.

Who has jurisdiction to qualify administrators on a decedent's estate in Virginia?

The circuit court clerks and deputies thereof may qualify personal representatives.

Where should I go to qualify as a personal representative on someone's estate?

Go to the circuit court clerk's office of the jurisdiction:

  • Where the decedent had a known place of residence, or, if none;

  • Where the decedent owned real estate, or, if none;

  • Where the decedent died or owned any property.

 

What information must I have available at the time of qualification?

  • The decedent's full name, age, address, place and date of death and marital status

  • A certified copy of the death certificate

  • The original Last Will and Testament, if one exists

  • Estimated values of real estate in Virginia and personal property owned by the decedent, both tangible and intangible (furniture, livestock, machinery, vehicles, cash, bank accounts, stocks, bonds, etc.)

  • Names, ages, addresses and degrees of kinship of the heirs at law

 

What are the basic duties of a fiduciary (executor or personal representative)?

The most important duties of a fiduciary are to:

  • Identify and take possession of the property of the decedent over which the fiduciary has control.

  • Determine and see to the payment of the liabilities (debts) of the estate, including taxes.

  • Sell or distribute the property of the estate in accordance with the dictates of the will and the laws of the Commonwealth of Virginia in effect at the time of death.

  • Within 30 days after qualification or probate, give written notice to the heirs and beneficiaries of the estate, or those who would have been the heirs. The affidavit of notice must be filed with the clerk's office within four (4) months from the date of qualification.

  • File a complete inventory of the estate within four months of qualification with the Commissioner of Accounts (a local person appointed by the circuit court to oversee estate administration).

  • File an annual accounting of all assets and distributions of the estate until a final accounting can be made.

 

What must a personal representative do to have a will admitted to probate?

  • Present the original will to the Clerk of Circuit Court's office for proof (if there is not a self-proving clause in the will), either by the testimony or deposition of one of the subscribing witnesses or by two disinterested persons who can verify the handwriting and signature on a holographic (handwritten) will.

  • Arrange for surety (security) on the bond unless it is waived by law or in the will.

  • Furnish a List of Heirs at Law.

  • You should call the clerk of circuit's office for an appointment. For the Office of the Clerk of Circuit Court for the County of Dickenson, call (276) 926-1616

  • Probate fees are based on the value of the estate.

 

Is an executor or administrator compensated?

The law provides for fiduciaries to be compensated for the time and energy involved in administering a will. The Commissioner of Accounts must approve the compensation, which is generally limited to five percent of the assets handled.

Is this everything I need to know about administering estates?

No. There are over 200 sections in the Code of Virginia that deal solely with the administration of estates. You should contact the Clerk of Circuit Court's office if you have any questions regarding probate procedure. You should contact any attorney if you have any questions regarding the legal interpretation of Virginia's estate laws.

 

 

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