The Carrithers Law Office

What is Probate? Probate is the proving or validation of the last will and testament of a person who has died. It is also a term that is used to refer to the administration of the estate of a decedent (the person who passed away) through the court system.

Does Everything Pass Through Probate? No, not every asset is included in the probate estate. Assets that are held by a trust with identifiable beneficiaries, that have a beneficiary designation, that are held jointly with another person with right of survivorship, or assets that are payable or transferable on death are not included in the probate estate. These assets pass directly to the beneficiary outside of probate. Furthermore, in Virginia, all real estate passed directly to the heirs of the decedent outside of probate subject to contrary wishes in a testamentary document or satisfaction of the decedent’s debts from other assets in the estate.

Small Estate Affidavit

If an estate is a small asset estate (personal property valued at the date of death of $50,000 or less), formal administration of the estate is not required. Instead, the Will, if there is one, can be probated and beneficiaries can present a small estate affidavit to transfer the assets.

So When Do Assets Need to Probated? If there is no Will in the estate or if there is a Will and assets in which the decedent is the final owner of the asset, the asset must be probated in order to transfer to a new owner.

What is the Probate Process?

  1. Qualify as Executor or Administrator. The first step in the process is to become qualified as an executor if the Will appoints an executor, or if there is no Will or no executor able or willing to act, then as an administrator. This will require a qualification appointment with the probate division of the circuit court of the county in which the decedent last resided. You will also need to give the heirs notice that you have qualified as the executor or administrator.
  2. Assume Control Over Assets. Once you are qualified as the executor or administrator, you must exercise control over all of the assets in the probate estate. You will want to open an estate account to hold all of the liquid assets.
  3. File the Inventory. An inventory lists all of the assets that are in the estate that are subject to the control of the executor or administrator. It must be filed within four months of your qualification.
  4. Pay Debts and Taxes. The next step is to determine what the debts of the estate are and then to pay off the debts in the priority specified by law. Certain taxes must also be filed and paid:
    • Probate Tax
    • Outstanding Federal and
      State Taxes
    • Final Income Tax for the
    • Final Personal Property Tax
    • Income Tax for the Estate
    • Federal Estate Tax Return
    • State Estate Tax Return
  5. Distribute Assets to Heirs. Once the debts are paid, the remaining assets can be distributed to the heirs as specified by the Will or by law.
  6. File the Accounting. An accounting of all incoming and outgoing assets must be filed with the Commissioner of Accounts annually until the estate is distributed. The Commissioner of Accounts reviews the accounting and will either approve it or request information or corrections as necessary.

How Can I Help? I help clients by either administering the estate for them, or providing counsel and guidance while they administer the estate. If you need help with a probate estate, schedule an initial consult with me and we can discuss how I can help in detail.

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