How Long Does the Probate Process Take in Virginia?
If you have recently been named an executor or administrator in a loved one’s Virginia probate administration, you are probably wondering, “how long will probate take?” You may have heard that the probate process can be long and fairly costly. In fact, there is a lot of variation in how the probate process works. Let’s back up and walk through the process together:
My Loved One Just Passed, How Do I Initiate the Probate Process?
If your loved one has recently passed, it is very important to locate any estate planning documents they may have. Look in their home or safe deposit box or check with their attorney.
Once you have located these documents, determine who is the named executor or administrator. The executor a person who the decedent (that’s the person who recently passed) named to administer the estate. If you are the executor, you will start taking the next steps in the process. If someone else is named, hand the documents off to them.
If there are no estate planning documents, your loved one’s estate will be administered in accordance with the Virginia Intestate Laws. These are default laws that guide probate and inheritance when an individual has failed to leave a Will behind. These default laws are not always what individuals would have wanted regarding disposition of their assets – that’s one of the reasons why careful estate planning is so important. You don’t want the state making some of your most important choices for you.
If you do find your loved one’s instructions and determine that you are the named executor, it will be time to initiate the probate process. The Commonwealth of Virginia does not have a specific timeline for when you should initiate probate, but it recommends that, within 30 days of the death, you should contact the Circuit Court Clerk’s Office in the county where the decedent lived or your attorney.
When you initiate the probate process with the Circuit Court, you will want to bring with you the following items:
The original Will
An overview of the decedent’s assets and the value of those assets
The death certificate
** Note: Calling the Probate Clerk ahead of time to make your appointment is necessary. The Clerk may point you to individual forms that you will need to complete, or recommend you bring documents specific to your situation.
How Do I Determine the Size of My Loved One’s Estate?
The probate process works differently depending on the size of the estate. If the decedent’s total property in Virginia is less than a value of $50,000, a more streamlined version of probate is available to you. However, assets exceeding $50,000 will require probate. To determine the value of the estate, only take into consideration assets held solely in the name of the decedent and assets held as “tenants in common” (this is distinct from joint tenancy with a right of survivorship). Further, you don’t include any assets that have already transferred to their beneficiaries. Examples of assets you would not include in this accounting are life insurance, retirement and brokerage accounts that have qualified beneficiary designations, and any assets that have been properly transformed into “Payable on Death” assets.
Planning regarding probate assets vs. non-probate assets is incredibly important. With careful planning and document preparation with your estate planning attorney and financial planner, you can avoid much of the probate process. We always recommend making a list of all of your assets and making sure you have planned for transfer of each individual one.
How Do I Legally Become the Executor?
If you are the named individual in your loved one’s estate planning documents or, if they have no estate planning documents, the Court will appoint an executor (generally, a person named as a beneficiary in the Will). The person appointed takes an oath to carry out the duties of an executor faithfully. Then, the executor may have to post a bond to the Court. This bond is called a “surety.”
This is an important thing to note: in the Commonwealth of Virginia, executors may be required to post a bond to the Court, even in an amount at least equal to the value of the estate. This can be incredibly burdensome, especially if the value of the estate is high. To avoid giving surety, a Will must explicitly state that the surety requirement is waived or the executor appointed must be a bank or trust company. If the appointee is not a resident of Virginia, he or she may also be required to give bond.
What are My Responsibilities as an Executor?
Within thirty days of the start of probate, the executor should give written notice to all heirs and beneficiaries of the probate process. Proof of this notice should be provided to the Commissioner of Accounts appointed by the Circuit Court to oversee the probate administration.
The executor will also need to locate and take possession of any assets that the decedent has left behind. Then, the fiduciary must determine whether the decedent had any debts or liabilities, including taxes due. It will be up to the fiduciary to settle any debts before distributing the remaining assets in the estate to the named beneficiaries (or, if there is no Will, to the statutory beneficiaries).
Typically, the fiduciary provides a complete list of the estate’s assets to the Commissioner of Accounts and keeps an accounting on a yearly basis of how the assets are distributed.
Being an executor is not an easy job, but there is support available. The Circuit Court does provide information to help you walk through this process, and we highly recommend that you engage an attorney to take the bulk of this work off of your plate. At Wakefield Law, we provide diligent, detail-oriented probate administration services to help get you through this process.
How Much Does it Cost to Go Through the Probate Process?
The cost of every probate process will be different. However, there are state and local probate taxes to be paid, as well as filing fees, accounting fees, and inventory fees. The bulk of the cost of probate administration, however, lies with the administering of the process. If you live out of the area where your loved one passed, you will likely need to travel regularly to oversee probate administration. There will also be costs associated with appraisals of all motor vehicles, corporate stocks, debts, probate assets (bank accounts, investments, and life insurance policies for which no beneficiary has been listed), and real property. All appraisals should be conducted by a disinterested and professional appraiser. If you choose to hire an attorney to help walk you through this process, there will also be costs associated with those services.
How Long Does the Probate Process Take?
So, back to your original question, how long will this whole process take? It depends. The size and complexity of the estate, as well as the number of creditors and beneficiaries involved, will determine the length of probate. Another important consideration is whether the decedent had minor children. Inheritance and guardianship can be time consuming when minor children are involved. You can expect the whole process to take between a few months and a few years.
There is Help Available
Of course, there is a lot more to probate administration than we can cover in a short blog post. Hopefully this gives you a good overview of the process. However, please remember that you don’t have to do this alone. There is help available. At Wakefield Law, we do our best to help families create comprehensive and effective estate plans to keep as much out of probate as possible. However, once probate has begun, we know that you want the process to go as smoothly and seamlessly as possible. That’s why we also provide probate administration services. We are here for you and your family every step of the way. To get started, give our office a call at (703) 771-9740.