Charlottesville Probate Attorney
Helping Virginia Clients Navigate Probate
When someone passes away, debts will need to be paid, property distributed, and paperwork filed through estate administration. Most estates will go through some level of probate in order to be considered “settled” in the state of Virginia.
What is Probate?
Probate entails both a financial and legal process which disperses the property of a diseased person to the state in which they live. In order to avoid probate, a person must assign their assets to a loved one in their will prior to passing away.
Conflicts will sometimes arise during this process, especially where assets are concerned, resulting in litigation. Even in the best cases, probate can be expensive and unpleasant, especially in the wake of a loved one’s death.
You do not have to handle the burden of probate on your own. Our skilled Charlottesville probate lawyer at Norton Health Law has considerable experience navigating Virginia’s probate laws.
We can help minimize the process’s impact on your loved ones and help negotiate resolutions. We can also represent you in court should conflicts develop. Our goal is to resolve probate as painlessly and efficiently as possible.
The Virginia Probate Process
When someone passes away in Virginia, the state Circuit Court for the county in which the deceased primarily resided handles the probate case. An assigned Circuit Court Clerk will guide you through each step of the probate process. Judges and potentially litigation will only become a factor if disputes or conflicts interrupt the process.
The probate process, absent any interruptions, generally proceeds as follows in Virginia:
- Initiating probate – If a will exists, the named executor must file said will with the court. They will also file a copy of the death certificate, estimated value of the estate, and the state’s completed “List of Heirs” form. If a will does not exist or does not name an executor, someone else must complete this process.
- Naming a personal representative – Once the probate process has begun, the court will name a personal representative of the deceased. This person will hold a fiduciary duty in administrating the estate. If a will exists, this is generally the named executor. Otherwise, another beneficiary of the will can be named.
- Taking inventory and notifying heirs – The personal representative will inventory all assets of the estate. They will then contact both the beneficiaries named in the will as well as any potential heirs to the deceased as determined under Virginia law. All beneficiaries must be given copies of the inventory and the will, giving them the opportunity to dispute the proceedings.
- Repaying creditors – Before any assets can be distributed to beneficiaries, taxes and creditors must be paid. If there are not enough assets to cover these costs, the state has rules governing priority of payments.
- Distributing assets – Any remaining assets are distributed under the instructions of the will. In the event of no valid will, intestacy laws apply, with assets typically being divided amongst the surviving immediate family.
- Closing the estate – Once debts have been paid, assets distributed, and any disputes resolved, the personal representative will relinquish their authority. This act will prompt the court to close the estate.
If your loved one has passed away and their estate is poised to enter probate, our Charlottesville probate attorney can help. We are intimately familiar with all aspects of Virginia’s probate procedures. Our attorneys can vigorously defend your interests, including in scenarios where heirs raise objections that threaten your inheritance.
Virginia Probate Process Without a Will
When you die without a will, your estate is considered "intestate" and subject to your state's "intestacy succession laws." This means your probated assets will be distributed by the courts according to your family relations.
Under Virginia intestate succession law, if you die with:
- Children with no spouse - Children inherit estate
- Spouse with no children - Spouse inherits estate
- Spouse and children who are all children of that spouse - Spouse inherits estate
- Spouse and children, at least one of whom is not a child of that spouse - Spouse inherits 1/3 of property, children inherit rest
- Parents with no spouse or children - Parents inherit estate
- Siblings with no spouse or parents - Siblings inherit estate
Adopted children and those born after your death are legally considered your children and therefor eligible to inherit from your estate. Foster and stepchildren who were not officially adopted do not receive an inheritance unless you have no other living relatives.
Any children born outside of marriage in Virginia must be able to establish your paternity through "clear and convincing evidence," with a short period of time to claim that paternity for inheritance.
Probate is a public process that can result in messy conflicts requiring litigation, potentially threatening your final wishes from being honored. Most estates are bound to go through some level of probate. However, you can limit the financial impact of the process on your assets through proactive planning.
Another goal of good estate planning is preserving as much of your financial and otherwise valuable assets as possible. After all, you want to give as much as possible to protect the livelihood of your loved ones.
Some of the ways our probate lawyer can help your estate avoid probate include:
- Trusts – Placing assets in trusts protects them from probate and any associated obligations. Many will use a revocable living trust in place of a will to set aside assets for loved ones.
- Joint tenancies – If you have a spouse, it can be wise to establish “joint tenancies” to share ownership of property. This can include rights of survivorship that automatically grant real estate to the surviving spouse and avoid probate.
- Payable on death accounts – Certain types of bank and brokerage accounts can be set to “pay out” to designated individuals after the holder passes away.
- Beneficiary designations – Certain types of investments, like life insurance policies, can assign their proceeds to loved ones of the deceased and avoid probate.
“Ms. Norton Cares”- Franklin
Even if you choose not to use these tools, retaining the services of qualified probate attorney can help minimize loss to probate-related costs. As your legal representatives, we will be aware of each facet of Virginia’s probate courts. We will be best equipped to protect the interests of you and your loved ones.