In Virginia, a deceased person's estate is probated through the circuit court in the county where he lived or owned real estate. Not every estate is probated, however. Small estates are dealt with through a summary administrative process that does not require the appointment of a personal representative. For estates that do go through probate, the process begins by determining whether the deceased died with or without a will.
Once a will is admitted to the Circuit Court for probate, the court authenticates the will and appoints a personal administrator, usually the person designated for that position in the will. When an individual dies without a will, the court appoints an estate administrator to distribute and close the estate according to the hierarchy of heirs provided by state statute.
Estates Without a Will
When there is no will, heirs are determined by statute. In Virginia, when an individual dies without a will, the entire estate goes to the surviving spouse unless the deceased has surviving children by someone other than the surviving spouse. If there are such children, one third of the estate goes to the surviving spouse, and the rest is divided among all of the deceased's children. If any of the children are already deceased, that share passes to his or her heirs.
Virginia law establishes no time frame in which probate must be started after the death of the deceased. However, the law recommends that family of the deceased start the process within 30 days after death to avoid complications with creditors and taxes.
Special Note as to Spouses
Virginia law protects spouses and even with a will, an individual cannot completely exclude his or her spouse from inheriting from the estate. However, if one spouse willfully deserts the other, and the deserted spouse dies while the desertion is ongoing, the deserter is not entitled to inherit any of the deceased spouse's estate.
A deceased's estate consists of all property, real and personal, the deceased owned solely in his own name. It also includes any partial ownership interests in real or personal property when partial ownership was held as tenants in common. Such partial interests pass to the deceased's heirs or beneficiaries who then own the property in common with the other original owners.
Any property payable by contract, such as life insurance proceeds, is excluded from the estate. This type of property passes directly to the designated beneficiary. Also excluded is property owned with another with an agreement that the deceased's ownership interest in these properties passes directly to the other surviving owner. Examples of such property are marital residences and joint bank accounts.
Virginia Probate Tax
All tangible and real property included in the deceased's estate located within the state of Virginia, and intangible estate property located anywhere, is subject to the Virginia probate tax. This tax is set by the Virginia Legislature at $1.33 per $1,000 of estate value. The Virginia probate tax is collected by the court clerk from estate proceeds upon filing of the will.
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