Overview
After someone dies, their property and financial obligations may need to be addressed through an estate. In Virginia, circuit courts handle the probate of wills and the administration of estates. A minor’s involvement does not move the estate proceeding to a juvenile and domestic relations district court or a combined district court.
The circuit court clerk’s office is usually the first court contact. The clerk can explain filing procedures and qualification requirements, but cannot give legal advice. An attorney can help with estate planning, inheritance questions, and the responsibilities of administering an estate.
Creating a Will
A will is a legal document that directs how property covered by the will should pass after death. The person making it is called the testator. A person age 18 or older who has the required mental capacity may make a will. Virginia law also permits an emancipated minor with the required capacity to make one.
A will can name beneficiaries and nominate an executor to administer the estate. An attorney can help prepare a will that addresses your circumstances and meets Virginia’s legal requirements. Hiring an attorney is not required, but mistakes can affect whether a will or a particular gift is valid.
Virginia generally requires a written, signed will. For a will that is not entirely in the testator’s handwriting, the testator must sign or acknowledge the will in the presence of at least two competent witnesses who are present at the same time. Those witnesses must sign in the testator’s presence. Different rules apply to a will written entirely in the testator’s handwriting; proving that kind of will requires at least two disinterested witnesses to establish the handwriting and signature.
Notarization is not generally required for a valid will. A properly completed self-proving affidavit, signed under oath before a notary or another authorized officer, can make it easier to prove the will after death. Simply notarizing a document does not replace the legal requirements for executing a will.
Keep the original will in a safe, accessible place and tell a trusted person where to find it. A separate list of assets, account information, and debts can help the person handling your affairs; a detailed financial inventory does not have to be included in the will itself.
Review your estate plan after major changes such as marriage, divorce, the birth or adoption of a child, or a change in assets. Virginia law may affect gifts or family members’ rights even if the will has not been changed. Ask an attorney about properly updating or revoking a will.
After a Death
Probate means proving and recording a will as the deceased person’s valid last will. Estate administration is the broader work of collecting and protecting estate property, addressing debts and expenses, and distributing what remains. Not every estate requires the appointment of an executor or administrator.
Contact the circuit court clerk’s office in the city or county where the deceased person resided. If the person lived outside Virginia or had no known residence, ask the clerk or an attorney which court is appropriate. Make contact promptly to learn the next steps; there is no single deadline that applies to every task after a death.
Ask whether an appointment is required and what to bring. Commonly requested items include the original will and any amendments, a certified death certificate, identification, information about assets and their values, and the names and addresses of heirs. If the original will cannot be found, seek legal guidance; a photocopy is not automatically accepted in its place.
The clerk handles many routine probate and qualification matters. A judge may decide disputes or other issues requiring a court decision. Qualification is the process by which the court or clerk formally authorizes a personal representative to act. Being named as executor in a will does not by itself complete qualification.
When There Is a Will
A person who dies with a valid will is said to have died testate. The will generally directs how the property it covers is distributed, subject to debts, expenses, taxes, and other legal rights. The person named as executor generally applies to qualify. If that person cannot serve, another suitable person may be appointed under Virginia law.
A will does not control every asset. Life insurance and retirement accounts with valid beneficiary designations, property held with survivorship rights, and assets held in a trust may pass outside the probate estate. How an asset is titled and the terms of its governing documents matter.
When There is No Will
A person who dies without a valid will is said to have died intestate. Virginia law determines who inherits property that passes through intestacy. The result depends on the family relationships and survivors, including whether the deceased person had descendants who are not also descendants of the surviving spouse. Family members do not simply choose a different division of the estate.
If administration is needed, a suitable person applies to qualify as administrator. Appointment is not automatic, and Virginia law governs who may qualify. A will may also leave some property undisposed of, so intestacy rules can apply even when a will exists.
Small Estates
Virginia’s Small Estate Act may allow certain personal assets to be collected without qualifying an executor or administrator. The small-estate affidavit procedure generally requires that the deceased person’s entire personal probate estate, wherever located, be worth no more than $75,000 at death. The procedure does not transfer real estate.
Other conditions apply. At least 60 days must have passed since the death; no application to appoint a personal representative may be pending or have been granted in any jurisdiction; and any will must have been admitted to probate. All known successors must make the affidavit, which identifies who is entitled to the assets and who is designated to receive them.
Use the current court-approved Small Estate Affidavit, Form CC-1685. Present it to the bank, institution, or other person holding the asset. It is not generally an application filed with the circuit court to shorten estate administration. Ask an attorney if you are unsure whether the procedure applies or how debts and distributions should be handled.
Serving as an Executor or Administrator
An executor or administrator is a personal representative and a fiduciary: someone legally responsible for handling property for others. Before qualifying, understand the work involved. You must take an oath and give bond. Surety, often obtained through a bonding company, may also be required. Bond and surety are different; waiving surety does not eliminate the bond. The clerk determines the requirements under the will and applicable law, including rules for nonresidents.
Responsibilities generally include identifying and protecting estate assets, keeping accurate records, determining valid obligations, filing required tax returns, and making lawful distributions. Estate funds should be kept separate from personal funds. Do not assume that every asset must be sold or that property can be distributed immediately. If funds are insufficient to pay all claims, legal rules determine payment priorities.
A commissioner of accounts appointed by the circuit court reviews required estate inventories and accounts. Unless an exemption or other applicable rule applies, key deadlines include:
Within 30 days after qualification or probate: send the required notices to the people entitled to receive them. Record the affidavit concerning notice in the clerk’s office within four months.
Within four months after qualification: file the required inventory with the commissioner of accounts.
Within 16 months after qualification: file the first account, generally covering the first 12 months. Later accounts generally cover successive 12-month periods and are due within four months after each period ends, until the estate is settled.
Some estates qualify for simplified reporting or exemptions. Confirm your requirements with the clerk and commissioner of accounts. There is no guarantee that one accounting will complete the estate. Reasonable fiduciary compensation is subject to applicable law and review; there is no universal 5% statutory cap.
Resources
For local procedures, contact the circuit court clerk’s office. For questions about legal rights, disputed claims, taxes, or how to carry out fiduciary duties, consult an attorney or appropriate tax professional.
Probate Forms on the Court Self Help Website
Circuit Court Fiduciary Forms and Instructions