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Probate

‹ ‹Probate administration, a court supervised process, requires the executor or administrator of a decedent’s estate to account for all of the decedent’s assets and all distributions of such assets to the beneficiaries and creditors.  The executor or administrator is required to file notices, inventories and accountings.  The inventories and accountings must be completed in a manner acceptable to the Commissioner of Accounts, the court appointed auditor of the probate estate. The Callan Law Firm, P.C. represents executors and administrators to ensure timely compliance with all of these requirements and appropriate distributions.

Estate administration may also involve management and transfer of assets through a trust.  We counsel and assist trustees in administration of trusts both during the trust beneficiary’s lifetime and at their passing.  The Callan Law Firm, P.C. is also familiar with administration of trusts that include estate tax planning, special needs beneficiaries, and other specialized provisions.

For all forms of administration, we prepare legal documents that may be needed to complete administration, for example, nonjudicial settlement agreements, transfer of business or other interests from the estate to beneficiaries, deeds for real estate, and court petitions to resolve disputes or to seek guidance from the court.

Determining whether probate or other estate administration is necessary and, if so, the appropriate steps in the process is critically important and can save the estate and beneficiaries time and money.To speak with an attorney now, contact The Callan Law Firm, P.C.  To learn more about Virginia probate procedure, read on.

Virginia Probate – Administration of the Decedent’s Estate

Probate is the judicial process for proving and recording of a will as the authentic and valid last will and testament of the deceased. A will should be probated with the court in the county or city in which the decedent (the person that has passed) owned a home; or if none, where the decedent owned any real property (land or houses); or if none, where the decedent died or has any estate. If the decedent passed in an assisted living facility or hospital or similar institution, then that person’s residence is presumed to be where he or she resided prior to becoming a patient at such home.

In which Court Should the Will be Probated?

Wills should be probated in the circuit court of the city or county where the deceased resided. Generally, the Clerk of the Circuit Court processes the probate of wills and the judge is not directly involved. However, any person interested in contesting or otherwise challenging the will may appeal to the judge within six months of the order of the clerk admitting a will to probate.

The Decent Passed without a Will -Who Inherits?

If a person dies without a will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts and cost of administration): (a) all to the surviving spouse, unless there are children (or their descendants) of someone other than the surviving spouse in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children; (b) if no surviving spouse, all passes to the children and their descendants; (c) if none, then all goes to the deceased’s father and mother or the survivor; (d) if none, then all passes to the deceased’s brothers and sisters and their descendants; (e) there are additional contingent beneficiaries set out in the Virginia statutes, which are not outlined here for the sake of brevity.

When is Appointment of an Executor or Administrator necessary?

The appointment of an executor or administrator is not always required. If such is the situation, no formal administration is necessary. This is usually true where the estate is small (under $15,000.00 for payment of small sums by certain governmental or occupational agencies).  Additionally, qualification is not necessary to transfer a motor vehicle title. In these circumstances, the will is probated (proved and recorded in the Will Books of the Circuit Court) and nothing further is required. Other instances where formal qualification or administration may not be required are joint accounts with right of survivorship in banks, saving institutions, or credit unions.

In most cases, the payment of life insurance proceeds to a named beneficiary and the transfer of real estate to a surviving spouse or other person, where there were survivorship rights in the deed, occur outside the estate.

When should you probate a will or request appointment of an administrator?

There is no set time frame in which a will must be probated or estate administration must be started. The death of a loved one is a particularly emotional, stressful, and busy time. The probate of the will can usually wait until a week or so after the funeral. It is recommended that the initial steps in the estate process start within 30 days after death. If any questions exist, call an attorney or your local Circuit Court Clerk’s Office.

What Do I Need to Probate a Will?

First, the will (original) must be taken to the Clerk’s Office of the Circuit Court in your local jurisdiction. It is
recommended that an appointment be made with the Clerk or a deputy clerk. You might be given some forms to fill out prior to the appointment. Second, the person offering the will for probate or seeking to qualify should know all the assets owned by the deceased and, as accurately as possible, the value of those assets. A copy of the death certificate should be taken to the court. This document contains much of the information that will be needed by the Clerk or deputy clerk assisting you.

Who Can Serve as Executor or Administrator?

If there is a will, the person or persons named in the will normally will be appointed. If no one is named or the person named refuses to serve or ceases to act after being appointed, administration may be granted to one who was an alternate in the will or who is a beneficiary of the will. Of course, anyone appointed must be competent and suitable in the opinion of the court making the appointment.  If there is no will, within 30 days of death the clerk may grant administration (i) to a sole distributee or his designee, or, if more than one heir to the one(s) designated by all distributees.  The person appointed must take an oath that he or she will faithfully perform the duties required and further must give bond in an amount at least equal to the value of the estate to be handled. Surety generally must be given on the bond unless the will waives surety (which most wills do) or the person(s) appointed is (are) the only beneficiary(ies) or the appointment is of a bank or trust company. If the appointee is not a resident of Virginia, or in the case of co-fiduciaries, if none are residents of Virginia, surety will be required.

What Does an Executor or Administrator Do?

Probably the most important duty is to ascertain and take possession of the deceased person’s property over which the executor or administrator has responsibility or control. Further, the fiduciary (executor or administrator) must determine the liabilities (debts) of the estate and determine the value of the estate over which the fiduciary does not have control (for tax-accounting reasons). Further, the fiduciary must see to the payment of debts of the deceased and the estate (including taxes) and the sale or distribution of property of the estate in accordance with the dictates of the will and the law of Virginia. Generally, the fiduciary must file a complete inventory of the estate within four months of qualification with the Commissioner of Accounts. The Commissioner of Accounts is a local person (generally an attorney) appointed by the circuit court to oversee and ensure that estates are properly handled. The fiduciary must also give written notice of qualification or probate to the heirs and beneficiaries of the estate or those who would have been the heirs, within thirty days after qualification or probate.  Finally, the fiduciary must make an accounting (generally a list of all assets of the estate, all distributions and all assets on hand) on a yearly basis until a final accounting can be made. Often, a first and final accounting can be made at the conclusion of the first year following qualification.  The fiduciary must immediately report any change of address or telephone number to the Commissioner of Accounts.

What About Taxes?

a) At the time of filing the will the probate tax must be paid. (Generally $1.00 state probate tax and .33¢ local tax,
if applicable, per $1,000.00 value of the estate.)

b) State taxes.
(1) The final income tax return of the deceased must be filed.
(2) The final personal property tax return of the deceased must be filed.
(3) An income tax return for the estate (income coming to the estate after death) must be filed if there is sufficient income.
(4) A Virginia estate tax return must be filed if required (generally only required if a federal estate tax
return is necessary).
c) Federal taxes.  Just as for the state, the decedent’s final federal income tax return, estate income tax return, and estate tax return must be filed if required. Generally estate taxes (both federal and state) are due only if the gross estate (includes life insurance and survivorship property not handled by fiduciary) exceeds the threshold established by federal and state statutes.

Can an Administrator or Executor be Compensated?

The administration of an estate generally requires a fair amount of time and energy. Compensation is allowed. The
Commissioner of Accounts must approve the compensation and generally this amount is limited to five percent of the assets handled.

If you have additional questions about estate administration, contact the Callan Law Firm, P.C. by clicking here.  To learn more about wills, click here.  To learn more about trusts,  click here.