Virginia Probate
In Virginia, probate is the submission of a will to the Clerk of
the appropriate Circuit Court or to the Court itself and proving
that is valid. Because Virginia has no separate probate court.,
wills are probated in the Circuit Court of the city or county of the
decedent's residence. If the decedent did not own any real estate,
their city or county of residence will be where they died. If the
decedent died in a nursing home, then their residence is presumed to
be where they resided prior to becoming a patient there.
The term probate also is used in a more general way as qualifying
someone to serve as the personal representative (or as an
administrator if there is no will) to carry out the terms of the
will and otherwise administer the decedent's estate. The term
probate is also used to refer to the general process of
administering an estate.
Oftentimes new clients, who believe they do not have an estate plan,
are surprised to learn that, in fact, they do have an estate plan.
Virginia has an estate plan for those who die without a
valid will. In this instance, Virginia's laws of
intestacy will determine who the heirs are and who receives the
decedent's property. A privately drafted Last Will and Testament,
submitted and proven in Court, can replace the terms of the
Intestate statute.
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At the time of filing the will, the probate tax must be paid. ($1
per $1,000 value of the estate. For Example: If the estate value is
$50,000, then the State tax would be $50.) There also are recording
fees at the time of probate.
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Because Virginia probate can be a lengthy, costly and public
process, many people choose to avoid it. The probate of a will is
not always required. If the estate is small (under $15,000), or
if no property passes under the terms of a will, there may be no
need for probate. There are a number of legal strategies that
will allow you to pass property to another person after death,
outside of the terms of a will.
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Adding another person to your assets as a joint owner or "joint
tenant with rights of survivorship" will allow your property to
pass to them upon your death without going through probate.
There are pitfalls to this strategy, however, including the fact
that in Virginia, each owner must own an equal share of the
asset. This means they will have access to the asset (such as a
checking account) while you are alive. Also, the asset could be
subject to any claims (such as lawsuits) against the co-owner
and available to the co-owner's creditors -- all while you are
still alive and planning on using the asset yourself. A joint
tenancy between married couples in Virginia can be set up as a Tenancy by
the Entirety (TBE), whereby each owns the undivided whole of the
property. When combined with "rights of survivorship," the
entire interest in the property passes from one spouse to the
other at the death of the first spouse and no probate is
required.
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Virginia allows Transfer on Death (TOD) or Pay on Death (POD)
beneficiary designations to be added to bank accounts.
Beneficiary designations like these are preferable to joint
tenancy in that they allow you to transfer property upon your
death without giving away current ownership. One of the
drawbacks, however, is that it can be difficult to obtain an
equitable distribution of property among your heirs by utilizing
beneficiary designations. Additionally, understand that if you
have beneficiaries listed on your assets, those assets will be
distributed upon your death to the listed beneficiaries, even if
your last will and testament states otherwise.
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A Revocable Living Trust is a legal document that allows you to
establish a separate entity (the trust) to "hold" legal title to
your assets while you are alive, and to name trustees to manage
those assets according to the trust terms. Typically, you serve
as the trustee while you are alive, managing your assets for
your own benefit. Upon your disability or death, the trust terms
name your successor trustee to continue to manage -- or
distribute -- the assets held in trust. A properly drafted trust
can accomplish many goals, including guardianship and probate
avoidance for your estate and creditor
protection for your children.
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The Virginia State Courts publish a helpful brochure overview of
Virginia Probate procedures: "Probate in Virginia." (Adobe Acrobat Reader
required, click here to get it
for free.)
The Virginia Bar Association also publishes a free "Guide
to the Administration of Decedents' Estates in Virginia"
(Adobe Acrobat Reader required)
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A properly drafted and funded trust will generally avoid
probate. The trust need not be filed with the probate court.
Nonetheless, there are still steps necessary to administer the
trust: beneficiaries must be contacted; assets must be gathered,
valued and managed; potential creditors must be notified; debts,
taxes and final expenses must be paid; and, ultimately, any
remaining income and assets must be distributed in compliance
with the trust terms. Successor trustees often lack the time,
resources or knowledge to personally administer the trust, and
therefore may call upon legal, accounting and investment
professionals for assistance. Alperin Law can help your successor trustee(s) deal with
the complexities of administering your trust. Please call our office
and we'll be happy to schedule a consultation, whether or not our
office has drafted the original trust.
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Alperin Law serves clients in Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Hampton Roads, and throughout Virginia.
For a no-cost phone consultation, feel free to call us at (757) 490-3500 or fill out this form.
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