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Guide to the Probate Process and How It Works

Nathan R. Olansen
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Probate, the official process of authorizing a will, can take several months to a couple of years. If you have a large estate, you want to ensure you have a valid will so you do not die intestate. However, with a will, your remaining assets that you have not put into a private trust will become public record. 

You may be concerned about maintaining privacy in your personal and business affairs. At Midgett Preti Olansen, we understand this concern and want to help you with your estate planning.  If needed, we can even serve as the executor of your estate. Call our Virginia Beach trust and estate administration attorneys at 757-687-8888 or fill out our online contact form and a member of our legal team will get back to you.

How Does Probate Court Work in Virginia?

Elderly couple speaking with a lawyer

Once a person passes away, the decedent’s estate goes into a process known as probate. This process is an official proving and recording of the original will to show it is authentic and valid. The probate process transfers the assets of a deceased individual in an orderly way and requires numerous steps and fees, which an attorney knowledgeable in probate law in the Commonwealth of Virginia can navigate.

If there is a last will and testament, the executor takes it to the clerk of the circuit court in whichever city the decedent resided in at the time of their death. If the deceased person owned several pieces of real estate, probate would occur in the Virginia city or county where they passed away. When a person leaves a will at the time of death, this is known as “testate.”

When the executor files the will with a Virginia court, they must make sure to list all of the assets of the estate. If you have a large estate which is being distributed pursuant to the terms of a will, it is important to note the assets you list in the will become a matter of public record. Once a Clerk admits a will to probate, a person can contest it within six months. If someone challenges a will, the process quickly becomes more complicated and more expensive.

If there is no will, the Commonwealth will essentially create one through the process of intestate succession.” This means Virginia distributes property based on a legal hierarchy of beneficiaries. This hierarchy starts with surviving spouses and children, working down the list of heirs to grandchildren and other family members. If you do not leave a will behind, some people you want to inherit a portion of your assets (especially non-family members) may not get them, or people you do not what to inherit a portion of your assets may do so.

How Long Do You Have to File Probate After Death in Virginia?

Many families need time to grieve after losing a loved one, so the Commonwealth of Virginia does not stipulate a time frame to file a will with the courts. However, the Circuit Court of Virginia recommends the executor files it within 30 days if possible.

Probate Will Take Months

Probate generally takes twelve to eighteen months, but can last several years. Due to Virginia’s creditor period rules that allow creditors to file a claim, it takes a minimum of six months to accurately determine and resolve the decedent’s remaining debts payable on death.

Another time-consuming factor with probate is the fact that executors need time to gather information about the decedent’s assets and debts. No two estates are the same, so probate time varies.

Generally speaking, the larger the estate, the more complex this process becomes. It can be overwhelming and time-consuming, sometimes taking several years. This is why people executing an estate often turn to an estate planning and probate attorney for assistance. Working with an experienced, compassionate Virginia probate attorney is incredibly beneficial, saving you time and stress.

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What Assets are Subject to Probate in Virginia?

Probate assets include vehicles, real estate, bank accounts, brokerage accounts, heirlooms, jewelry, artwork, household furnishings, antiques, and other personal property. Large estates tend to have more requirements than small estates

If any life insurance policy proceeds, or retirement accounts, do not have named beneficiaries and are payable to the estate, the policy proceeds and retirement accounts are also included in the probate. Life insurance policies that name beneficiaries are not subject to probate in the Commonwealth of Virginia

How Can I Avoid Virginia Probate?

You can be proactive and establish an estate plan to avoid your loved ones going through the complex probate process. Talking about death is never easy, and planning for it can be even more difficult, but it is a process that saves your family members and other loved ones the stress and pain of going through a prolonged probate process.

Establishing trusts that are ready for the immediate transfer of your assets to your beneficiaries is an excellent way to avoid probate. You can also use transfer on death designations (TOD) on bank accounts and stock certificates.  Assets with a TOD designation do not have to go through probate. If privacy about your assets is important to you, trusts are not public records like wills are required to be.

To learn more about the different types of trusts you can establish, speak with a knowledgeable Virginia Beach attorney who is well-versed in estate law.

Taxes on Your Estate

Taxes are triggered when a person dies, and their wealth is transferred to beneficiaries.

As of July 1, 2007, the Commonwealth of Virginia no longer levies an estate or inheritance tax. However, there is a state probate tax the Commonwealth charges, but there are some exceptions where it may be exempt. Under Virginia law, this tax is assessed at .10 per $100 of the value of an estate. No tax is imposed on estates valued at $15,000 or less.

Estate tax laws have changed frequently over the past 50 years (and continue to do so), and it is a good idea to consult with an experienced estate tax attorney to create a plan for your estate with the most up-to-date information. Some inheritances may be considered income and thus subject to income tax.

Aside from state taxes, federal taxes must be paid on the settlement of an estate. The more assets involved, the higher the taxes. A knowledgeable Virginia estate planning attorney can evaluate your estate’s potential tax liability.

How a Virginia Trust and Estate Administration Attorney Can Help

An attorney can help you plan out your estate so your beneficiaries and heirs do not have to go through the tedious process of gathering your assets. This is often a difficult time for grieving loved ones because it is challenging to mourn the loss of a loved one while handling the legal aspects of distributing the deceased person’s assets.

There are many steps to take once a loved one passes away. An attorney can handle all the fiduciary duties, such as obtaining the death certificate, documenting the date of death, filing the will with the clerk’s office, dealing with any nursing home obligations or issues, and handling any required affidavits.

The larger an estate, the more complicated it is to complete trust and estate administration in Virginia properly. If you have a large estate, it is best to have your affairs in order so the transition is smooth and timely. If your attorney is your executor, it will avoid a conflict of interest. If you choose a family member as your representative, you risk conflict. 

Elderly couple speaking with an attorney

Navigate the Probate Process with Ease

Whether you are an individual tasked as the executor and must file for probate or you want to avoid your loved ones experiencing this arduous process, speak to the attorneys at Midgett Preti Olansen for legal advice about your estate administration.

Our law firm prides itself on giving every one of our clients complete, competent, and accurate service. We will support you and your family and handle the tedious paperwork and administrative duties to prevent missed steps and settle the estate properly. Consider us your personal representatives in all estate matters.

The attorneys at Midgett Preti Olansen have been proudly serving northeast North Carolina and the entire Hampton Roads area of Virginia since 1999, right from our Virginia Beach office. To learn more about probate or to speak with us about other estate planning, such as living trusts, wills, rights of survivorship, powers of attorney, estate taxes, trust litigation, or elder law, contact us at 757-687-8888 or fill out our contact form, and one of our team members will call you.

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Written By Nathan R. Olansen

Shareholder

Nathan R. Olansen is a Shareholder in the law firm of Midgett Preti Olansen. His practice is focused on estate planning, probate and trust administration, IRS and state and local tax audit and tax collection cases, as well as individual and entity tax planning, asset protection and a variety of related transactional matters.

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