How Probate Works in Virginia

1) Offer the will for probate (or apply for administration if there is no will) before the clerk of the circuit court of the county or city where the decedent lived; the clerk may admit wills and qualify executors and administrators. 2) The personal representative takes the oath and posts bond, usually at least equal to the personal estate, unless security is excused. 3) Within 30 days after qualification or probate, send written notice of probate or qualification to the surviving spouse, heirs and beneficiaries, and within four months record an affidavit that notice was given. 4) Within four months after qualification, file an inventory with the commissioner of accounts. 5) Optionally publish a notice to creditors and pay valid debts in the statutory order. 6) File the first account within 16 months after qualification (and annual accounts after that) until the estate is settled, or a statement in lieu of settlement where allowed. Real estate passes to heirs or devisees, and a list of heirs or real estate affidavit is recorded where needed.

Virginia has no separate summary probate proceeding, but several shortcuts apply. When the decedent's personal estate passing by will or intestacy is $35,000 or less and an heir, beneficiary or larger creditor qualifies, the clerk waives the inventory and the settlement of accounts (unless the decedent owned real estate the representative could sell). If all distributees or all residuary beneficiaries are the personal representatives, they may file a sworn statement in lieu of a settlement of accounts once all known charges are paid, six months have passed since qualification, and the residue has been distributed. In addition, 30 days after death a funeral home may collect funeral costs from a small asset by affidavit if no personal representative has been appointed. Surviving family may also claim a family allowance (lump sum up to $30,000, or up to $2,500 per month for one year), exempt property up to $25,000, and a homestead allowance of $25,000.

A personal representative may publish a notice to creditors once a week for two consecutive weeks and mail it to known creditors with disputed claims. Claims must then be presented in writing to the personal representative (or filed with the commissioner of accounts) by the later of six months after first publication or 90 days after the notice is mailed or delivered to the claimant. A representative who complies in good faith is not liable on late claims beyond the assets still on hand. Separately, after six months from qualification the court may order creditors to show cause against distribution; distributees may still be required to refund their share of valid claims in a suit brought within five years after distribution.

The executor named in the will qualifies before the circuit court or clerk. If there is no will, administration goes in the first 30 days to a sole distributee (or a distributee with waivers from the others), then to the first distributee who applies; after 60 days a creditor or other person may qualify after giving notice. The court or clerk must be satisfied the person is suitable and competent; a person convicted of certain felonies (such as fraud, embezzlement or perjury) generally may not serve as administrator unless he or she is the sole distributee. A nonresident individual may serve, but must consent to service of process through the clerk or a resident agent and must post bond with surety unless a resident co-fiduciary qualifies at the same time or surety is waived. Residents must give bond, but surety is not required when all beneficiaries or distributees are the personal representatives or the will waives security for a named executor.

Yes. If the decedent's entire personal probate estate is worth no more than $75,000, anyone holding a small asset (a bank, brokerage or credit union account, security, refund, tangible personal property, or debt owed to the decedent, but not real estate) must pay or deliver it to the designated successor who presents an affidavit signed by all known successors stating, among other things, that at least 60 days have passed since death, that no personal representative has been appointed or applied for, and that any will has been probated. The affidavit must be on the form prepared by the Office of the Executive Secretary of the Supreme Court of Virginia (Form CC-1685), and each signature is notarized; it is presented to the asset holder rather than filed in court. A holder may also pay a small asset worth $35,000 or less to a successor without an affidavit after 60 days if no personal representative has been appointed or applied for.

Virginia has no separate probate court. A will is probated in the circuit court of the county or city where the person lived at death, and usually the Clerk of the Circuit Court or a deputy clerk handles probate without a judge; anyone interested can appeal the clerk's order to the judge within six months. There is no statewide probate search: the Judicial System's Circuit Court Case Information covers civil and criminal cases in select circuit courts, and Secure Remote Access to circuit court land records (including wills) is available for select courts after registering with the local Circuit Court Clerk. For estate matters, contact the local circuit court.