Clients who are appointed to handle a loved one’s estate often feel overwhelmed upon the death of their loved one. The probate process can seem complicated and daunting, especially when grieving. The following are some of the most frequently asked questions we receive about probate, and some guidance in response to those questions:
Is probate always necessary?
The appointment of an executor (the personal representative when the loved one died with a valid Will) or an administrator (the personal representative when the loved one died without a valid Will) is not always necessary. If the assets held in the loved one’s name individually are less than $50,000.00, then in some instances the estate is considered a small asset estate for probate purposes, and no qualification is needed to administer the assets.
Where should the Will be probated?
In Virginia, the Will should be probated in the Circuit Court of the city or county where the loved one owned a home or any real estate at the time of his/her death. If the loved one did not own a home or real estate, then the probate should occur in the city/county where the loved one resided most recently. If the loved one died while residing at an assisted living facility, then that person’s residence is presumed to be where he/she resided prior to living at the facility.
When should I probate the Will or seek appointment as administrator?
There is no set time frame within which a Will must be probated or an executor or administrator appointed. However, it is best to contact the appropriate probate office as soon as possible to schedule a probate appointment and to confirm what to bring to the appointment.
It is advisable to direct questions to a qualified attorney regarding the probate process. Many executors and administrators need assistance in determining which assets are probate assets, answering questions from beneficiaries, preparing and filing probate paperwork and tax returns, and in the case of an insolvent estate, prioritizing and paying the debts of the loved one.
Written By Stephanie C. Smith
Stephanie C. Smith is a Shareholder in the law firm of Midgett Preti Olansen. Her practice areas include estate planning, estate and trust administration, and business matters. Additionally, Ms. Smith serves as a Commissioner of Accounts for Virginia Beach Circuit Court.
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