What Are the Probate Laws in Virginia?

By Heather Woodlief
The county clerk, probate matters, Virginia

courthouse image by Michael Shake from Fotolia.com

In the Commonwealth of Virginia, probate matters are handled at the county courthouse, in the county in which the decedent lived. The executor of the will must schedule an appointment with the county clerk, and the clerk will guide the process, according to Virginia law.

Heirs

The Commonwealth of Virginia states that heirs of the decedent don't always qualify as beneficiaries of the estate. For this reason, all names, ages, and addresses of relatives are to be provided to the clerk during probate. According to Code of Virginia § 64.1-1, real estate where the title was free and clear will be passed on to the closest living relative, starting with the spouse. If the spouse is no longer living, the estate passes to the children. When there are no children, Virginia code requires the estate to go down this prioritized list, until there is a living relative or ancestor to whom the property can be given.

Executor of Estate

When there is a named executor, Virginia Code requires that if the executor is not a resident of Virginia, she may either go through the process to become a registered agent" or choose a Virginia resident to serve as a co-registered agent. If the named executor does not wish to fulfill her duties, then she must submit a notarized letter of decline. In the event that the executor is deceased, a copy of the death certificate must be presented to the county clerk.

Validity of Will

When a will is self-proving, it will have been signed by the individual, or testator, and the witnesses in front of a notary public. The notary public will sign the will as well as a self-proving affidavit. The affidavit should be stapled to the will. When a will is not considered self-proving, the witnesses of the signing of the will need to give their testimony to the clerk at the designated county court.

Appraisal Inventory

The executor or registered agent is responsible for commissioning appraisal of the decedent's estate. The appraisal needs to be an itemized list, noting which appraiser appraised which item.

Taxes

All taxes must be paid before any distributions are made from the estate. Proof must be provided that federal and state taxes have been paid. In the case of federal estate taxes, Virginia requires an estate tax as well. In addition, there is a probate tax for any estates over a $15,000. The state tax is equal to $1 for every $1000, and some local municipalities add an additional local probate tax.

Time Frame

The Commonwealth of Virginia recognizes that the death of a loved one is a particularly stressful and emotional time and, therefore, does not place a time frame on when probate must begin. Virginia recommends that probate filing begin within a week to 30 days from the time of death, but there is no law requiring this.

About the Author

Heather Woodlief started writing professionally in 1998. Her published works have been featured in "Family Fun" magazine, "Fit Pregnancy," "Cat's Magazine," "Children's Ministry" magazine and "iParenting."

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