Probate
Losing a loved one is always painful and can often be overwhelming. While navigating your grief and the reality of life without someone you love, you are also faced with copious decisions that must be made. Planning the funeral, ensuring that there is a burial plot and finalizing all the deceased’s affairs are all things that must take priority in the days following their death. If they have a will, then you will also be responsible for ensuring that their wishes are followed and that the will is carried out properly. Working with an experienced probate attorney, like the team at Williams Stone, PC, can provide support and resources to make the process easier.
What Is Probate?
The probate process is required to verify and validate that the will provided by the deceased is, in fact, their last wishes. Once that has been established, it will ensure that the requests and wishes established in the will are executed properly. This means that an individual, called the executor, will be responsible for paying any outstanding debts, collecting the assets of the deceased, and distributing those assets to the correct people. If there is no will, then the family of the deceased must go through the courts to divide assets properly. The individual responsible for overseeing that process is referred to as the administrator rather than the executor.
The probate process must be completed through the courts, but in Virginia, there is no separate court for probate. Rather, this process must go through the regular circuit courts in the county or city where the deceased lived. The probate process will begin when the last will and testament is given to the clerk of court so that an individual can be named the executor.
Once the process has begun and a personal representative has been named, it can take anywhere from six months to over a year to be completed. This timeline can be affected by any complications connected with the will or any disputes within the family. If you are navigating the probate process in Virginia, it is important to understand what will fall under the purview of probate.
What Is Subject To Probate?
In most cases, any property or assets that were owned by the deceased individually will be subject to probate. Usually, if an individual wants to leave something to a beneficiary upon their death, it will be upheld if it is written into the will. However, there are a few exceptions to this rule.
The two primary exceptions are joint assets and assets connected to a contract. If there is any property or asset that is jointly held, then it will usually pass fully to the other owner in the event of one’s death. These are often referred to as joint tenancy assets. The other exception refers to assets that are set aside for a beneficiary outside of the will itself. This may include accounts that are designated as payable upon death and retirement funds. It will also apply to life insurance policies, except in cases where the estate of an individual is listed as the beneficiary.
Any assets that do not fall into one of these categories will be subject to probate. This means that, for the assets to be distributed properly, the probate process must be completed.
What Is The Probate Process?
The probate process must always start with the last will and testament of the deceased being given to the Clerk of Court, who will then handle the legal aspects of the process. Once that has been done, there are three primary stages to the probate process in Virginia.
- Assigning an executor. Typically, the individual who provides the will to the clerk of court wishes to be designated as the executor of the estate. When they start the process, they must provide the will (if applicable), an official death certificate and the estimated value of the full estate. If they qualify as executors or administrators, they will be given access to and responsibility over the assets and property of the deceased.
- Managing the assets of the deceased. Once an executor has been named, they are then responsible for collecting, handling and distributing the assets correctly. This includes the process of gathering up all the assets in the estate, paying any outstanding debts and taxes, and finally distributing the assets to the beneficiaries. This process will take at least six months but could last more than a year if there are any complications.
- Finalizing the process to close the estate. This will only take place once every other step has been successfully completed. When the Clerk of Court determines that all debts and taxes have been paid and that all assets have been distributed properly, then the estate will be closed and the executor will no longer be responsible for it.
The major aspects of the process are simple, but each step requires special attention. One thing that the executor or administrator must be careful about is paying the taxes for the estate.
What Is A Probate Tax?
The probate tax is a fee that must be paid when the case is originally filed. This fee is made up of state and local taxes that are determined by the value of the full estate. In Virginia, the state tax is $1.00 for every $1,000 of value. The value of the estate is determined by the number of both physical and nonphysical assets.
Who Is A Personal Representative?
A personal representative is another term for the executor or administrator of an estate. Usually, this person is a member of the decedent’s family. The personal representative must manage the estate and ensure that the assets are all divided properly.
Even in the best of circumstances, coping with the death of a loved one is difficult and overwhelming. Adding the stress of handling the distribution of that person’s estate can make it seem impossible. The knowledgeable and experienced team at Williams Stone, PC, is here to walk you through the process. Contact us today to see how we can help.