In one sense, every decedent goes through some form of probate, if you define it as the process for transferring wealth titled in the name of a deceased person to a living person.
The portion of probate that concerns most people is a court-supervised probate process. In Virginia, this is what most people generally think of as probate:
- Recording the decedent’s will in the Circuit Court in the city or county where the decedent resided prior to his or her death.
- Having the court certify (“qualify”) the appointment of the executor named in the will.
- Gathering together (known as “marshalling”) the decedent’s assets and using those assets to pay the decedent’s debts and final taxes.
- Filing an inventory and annual accountings with the quasi-judicial officer known as the Commissioner of Accounts until the estate is closed.
- At the end of the process, paying out the decedent’s assets to the beneficiaries of the estate.
A person who settles a decedent’s estate is referred to as a personal representative. A testator may nominate an individual or professional to serve as the “Executor” of his estate in his will. Nominating an Executor eliminates the uncertainties found in the court appointment process. Unless the nominated individual is deemed incompetent by the court, he or she will be appointed as Executor.
When a person qualifies as Executor, he or she pays a small probate tax to the Clerk of the Circuit Court. The probate tax will equal approximately $1.50 for every $1000 of estate assets that pass under the decedent’s will or that pass into the hands of the Executor. For example, the probate tax on a probate estate that consisted of a $500,000 home and a $500,000 investment account would come to about $1500. Keep in mind this probate tax is not at all like a federal estate tax.
A will should be probated in the circuit court of the city or county where the deceased resided at the time of his or her death. If the decedent died in a nursing home (or similar institution), then the will should be probated where he or she resided prior to relocating to such institution.
Virginia law allows the last surviving parent to appoint a guardian over the person of any of their children. This right is generally exercised in a will. Without the appointment of a guardian by a decedent in his or her will, the court may appoint the first person to volunteer (regardless of who the decedent might have preferred). Furthermore, where more than one individual volunteers, a contest may ensue to gain custody of the children.
A person dies “testate” if he or she dies with a will. A person dies “intestate” if he or she dies without a will. The probate assets in an intestate estate will pass to such decedent's heirs-at-law, which are determined by Virginia's laws of descent and distribution, codified in Va. Code § 64.2-200 et seq.
If a Virginia resident dies intestate (without a will), his property passes in its entirety to his “heirs at law” as determined by Virginia law. Here is the current order of priority determining a deceased person’s heirs:
- Surviving spouse
However, if the decedent has children from someone other than the surviving spouse, then one-third passes to the surviving spouse and the remaining two-thirds is divided equally among such children. If the decedent does not have a surviving spouse, children, grandchildren, parents, or siblings, one-half of his estate will pass to the nearest relatives on his mother’s side and the other half will pass to the nearest relatives on his father’s side.
When an individual dies intestate, the court will appoint a personal representative, referred to as an “administrator.” During the 30-day period following the decedent’s death, the court can only appoint
(i) a sole beneficiary (or his designee), or
(ii) if there is more than one beneficiary, a beneficiary upon whom all of the beneficiaries agree.
During the following 30-day period, the court may appoint the first beneficiary who requests appointment, unless there is a contest between multiple applicants for appointment. Following this 60-day period, the clerk may appoint one of the decedent’s creditors or any other person the clerk believes to be competent (assuming that, if a sole beneficiary exists, certain notice requirements are complied with).
Where the beneficiary of an estate is a minor child, the court will appoint a guardian to manage the child’s property. This court-appointed guardianship is generally more cumbersome and more expensive than the creation of a minor’s trust under a well-drafted estate plan. Court-appointed guardians are selected by the court and guardianships end when the child reaches age 18, regardless of the ability of the child to manage the amount of money involved. Court-appointed guardians may only make expenditures for the “health, education, maintenance, and support” of the child. A guardian must always obtain approval from a judicial officer prior to the sale of a minor’s interest in real estate. A guardian must have the approval of a judicial officer for any distribution made to the child if the child has a living parent. Two forms of “insurance” – surety upon the guardian’s official bond and annual accountings to the commissioner of accounts – cannot be waived under a court-appointed guardianship. Though surety and annual accountings may be desirable in certain circumstances, they may prove expensive and are not useful under many circumstances. A minor’s trust fund may be tailored to specifically meet his/her needs and may lower administration costs.
A self-proving will may be admitted to probate without the necessity of any witnesses appearing at the Clerk’s office to testify as to the execution of the will. A will is self-proving if it includes an affidavit signed by the testator and the witnesses as to the due execution of the will, which affidavit is then notarized by a notary public. We always make sure that wills we draft at Virginia Wills, Trusts & Estates are self-proving.
If a will is not self-proving, the clerk will require either one or two witnesses to swear under oath that the requirements of due execution were met. This can be difficult and costly. Witness are frequently missing, out-of-state, or deceased. Although alternatives exist, it is best to execute a self-proving will to avoid such complications.
A holographic will is a will written entirely in the testator’s handwriting and signed by the testator in such a manner as to indicate that the name is intended as a signature. If a holographic will is not witnessed, at least two disinterested witnesses must testify that the will is written in the testator’s handwriting at the time of probate.
If the testator had access to the will, a legal presumption is created that the will was deliberately revoked by the testator. If the testator did not have access to the will, a legal presumption of loss arises that must be rebutted by clear and convincing evidence that the testator revoked the will. This underscores the importance of safeguarding your original will.