Wills - Probate - Estate
We are here to assist you in anyway possible. However, we cannot provide you with legal or accounting advice that you may need in settling an individual estate. Your duties as the executor or administrator of an estate are set by law. It is our intention that the foregoing information provided herein will assist you in executing your duties as executor or administrator of an estate.
Q. When is it necessary to probate an estate?
A. An estate must be probated when the decedent has solely-held assets that do not have a joint or co-owner with rights of survivorship, a beneficiary (actually on the account or security -not in the will) or a pay-on-death designee. Assets include real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities. A personal representative must qualify to file a wrongful death suit or to continue a pending suit when one of the parties dies before the conclusion of the suit.
Q. Where should I go to qualify as a personal representative for an estate
- To the clerk's office of the circuit court of the jurisdiction:
§ where the decedent was last known to reside, if none, then
§ where the decedent owned real estate, if none, then
§ where the decedent died or had any estate
- For persons residing in a nursing home/convalescent home, pursuant to The 1950 Code of Virginia, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient. However, that such presumption may be rebutted by competent evidence.
Q. Where do I go to probate a will in Washington County?
A. The Washington County Circuit Court Clerk's Office is located in the annex next to the Courthouse located at 189 E Main Street, Abingdon, Virginia. Office hours are 8:30 a.m. to 5:00 p.m., Monday through Friday. An appointment is recommended for your privacy and convenience. Probate appointments take approximately an hour. Call the Clerk's office at 276-676-6224 and ask to speak with Rhonda Roop or Sara Bott to arrange an appointment for probate.
Q. How do I contact the Commissioner of Accounts?
A. The Commissioner of Accounts for Washington County, Virginia is Anne P. Hutton, Esquire. The office address is 101A East Valley Street, Abingdon, Virginia 24210. The office telephone number is 276-628-9342.
Q. What are the fees associated with probate?
A.The Code of Virginia mandates fees for probate. The statutes may change annually; therefore, check with the Clerk's office for updates.
Q. What is the procedure to probate an estate with a will?
A. The executor named in the will must personally appear to probate the will and qualify as executor. The named executor should be a Virginia resident, however, statutes will allow out-of-state residents to qualify. This may require a Virginia resident to co-qualify and post a surety bond, despite the bond being waived in the will.
When the named executor is not a resident of Virginia, a Virginia resident must accompany the executor to the Clerk's office to either co-qualify or be appointed as a registered agent. Statutes govern the specific procedure to follow.
Q. What if the named executor does not wish to serve?
A. The named executor must prepare a notarized statement renouncing the appointment. Priority goes to any alternates named in the will. If no alternates are named, or if any alternate executor renounces the right to serve (following the same procedure as the first named executor), then an "Administrator C.T.A." will need to be appointed and qualify as such.
Q. What if the named executor is deceased?
A. The alternate executor or Administrator C.T.A. must present the death certificate of the deceased executor at the time of probate.
Q. What if the named executor wishes to be removed as such after qualifying?
A. The executor, like any other qualified fiduciary, must file a petition for removal, a notice to set the matter on the court's docket and present a court order for the judge's signature. Only the court may remove a qualified fiduciary. It may be necessary to have another fiduciary ready to be appointed at the time the original fiduciary is removed.
Q. What if an in-state executor or any other fiduciary residing in Virginia moves from Virginia after qualification and the estate is still open?
A. The fiduciary must appear personally in the Clerk's Office to have either an in-state resident co-qualify before moving, or an in-state resident appointed as a registered agent. Statutes govern the procedures to follow. (Section 26-59 of the Code of Virginia, as amended). Trustees, other than those specifically named in the will, can only be appointed by court order.
Q. How is qualification as administrator determined?
A. Preference is given to the spouse of the deceased. If the spouse does not wish to qualify, the spouse must prepare and sign a notarized renunciation statement. If the spouse refuses to renounce but still does not qualify as administrator, then thirty days notice must be given to the spouse of another's intent to qualify. Notice should be given by certified mail, return receipt requested for proof of service. When there is no spouse, preference is given to legal heirs at law. The legal heirs at law may all co-qualify or one may qualify individually. If qualification is sought within thirty days from the date of death, notarized nominations must be obtained from the majority of the heirs if all heirs do not intend to qualify as co-administrators. When there is no spouse and more than thirty days have passed since the date of death, any interested party may qualify as administrator without notarized nominations from the heirs. Qualifying as an administrator does not automatically make one a beneficiary to the decedent's estate. The beneficiaries in an intestate estate are the legal heirs at law. Heirs at law are set forth by statute.
Q. What should the prospective executor/administrator bring to qualify?
- A Virginia resident to accompany a nonresident prospective executor or administrator.
§ The ORIGINAL will (for testate estates).
§ A certified copy of the death certificate or copy of the obituary.
§ Approximate dollar value of any solely-held personal assets.
§ Approximate fair market value of real estate in Virginia deeded solely to the deceased or the value of the percentage owned by the deceased when the real estate is deeded as tenants in common.
- Names, ages and addresses of heirs at law. These are individuals who are legally entitled to receive an estate when there is no will, This list is still required to be created in a testate situation.
Q. What are the duties of an executor/administrator?
- Giving notice to interested parties and filing an affidavit of notice.
- Filing income, inheritance, or estate tax with the federal or state government.
- Filing an inventory and accounts of the estate with the Commissioner of Accounts (not the circuit court clerk's office), until the estate is closed.
- Under certain circumstances, a fiduciary may file a statement in lieu of the accounts.
- Payment of debts in the order set forth by law.
- Disbursement of remaining assets according to the will or to the heirs at law.
Q. Are bonds required?
A. All fiduciaries must be bonded. State statutes govern whether the bond is with or without surety. The probate clerk will set the appropriate bond at the time the fiduciary qualifies.
A. A fiduciary must file an inventory within four months from the qualification date. A first accounting or statement in lieu of the first accounting must be filed within sixteen months from the qualification date. Fiduciaries file these documents with the Commissioner of Accounts' office. The fiduciary will get a packet at the time of qualification containing instructions and other necessary forms to be completed to properly administer the estate. Finalization of an estate varies in time depending upon various circumstances.
Q. What if the only solely held asset was real estate?
o When there is a will, the executor will make an appointment in the jurisdiction of probate (where the decedent resided at the time of death) to record the will without qualification (unless the will specifically directs the executor to sell the real estate). When there is no specific directive to sell, the statutes in the Commonwealth of Virginia do not require an executor to qualify, if the only solely held asset was real estate. Once the will has been recorded, the real estate passes automatically, by law, to the beneficiary of the real estate under the will.
o When real estate is in Virginia, but outside the county having jurisdiction of probate, the will is still recorded in the county having jurisdiction. Recording fees and probate tax are collected. A certified copy of the will, list of heirs and probate order are prepared for the person presenting the will, to record in the county where the real estate is located. Also included is a certificate reflecting probate tax collected on real estate by the clerk's office having the original jurisdiction of probate.
o If the probate jurisdiction is outside Virginia and real estate is solely held by the deceased in Virginia, exemplified (or triple sealed copies) of the probate documents are prepared by the jurisdiction of probate to record in the county in Virginia where the real estate is deeded. Recording fees and probate tax must be collected and a new list of heirs for Virginia must be recorded. Ancillary administration is not required in Virginia, unless it is a directive under the will to have the real estate sold by the executor.
o When this directive is absent, upon recording the will, the real estate passes automatically, by law, to the beneficiary of the real estate in the will. The real estate may then be sold by the beneficiary, as a beneficiary (not as an executor).
o For an intestate estate where real estate is the only solely held asset, the heirs would record a list of heirs (obtained from the Clerk's Office), and pay a recording fee. A death certificate must be presented along with the document.
Q. Suppose the only asset was a motor vehicle?
A. In this case, probate is not necessary. The beneficiary under the will or the legal heir at law, when there is no will, should take the title and death certificate to the Department of Motor Vehicles to transfer the title. It should be stated that you are not going through probate and no personal representative is qualifying, as the only asset is the motor vehicle.
Q. Is probate necessary in a small estate?
A. If an estate consists of personal assets not totaling more than $50,000.00, and sixty days have passed since the death of the deceased and no personal representative has qualified in any jurisdiction, a small estates' affidavit may be issued to the heirs at law when there is no will, or to the beneficiaries of a will once the will and heirs have been recorded.
Q. What constitutes a valid will?
A. When a will is presented for probate, the probate clerk will usually determine its validity. (However, some instances require the Court to make the determination.) When a will is presented for probate and does not contain the self-proving clause, a witness deposition will be given to the individual presenting the will. This is to be completed by one of the subscribing witnesses to the will and is submitted to the probate clerk for completion.
Q. What is a self-proved will?
A. One that contains specific language required by law at the end of the will. The presence of this clause eliminates the need to obtain witness depositions.
Q. Are holographic wills legal in Virginia?
A. Holographic wills (those in the decedent's handwriting) may be admitted to probate if it shows testamentary intent, providing the entire will is written in the handwriting of the testator, signed by the testator and depositions of two disinterested parties who can identify the decedent's handwriting are submitted.
Q. Should a will be kept in a safe deposit box at a bank?
A. Unless the executor has access to the safe deposit box, it is not recommended. Although there is Virginia statute that may allow a safe deposit box to be opened with a bank official present for retrieval of a will, banks make it very difficult to gain access to wills stored in safe deposit boxes.
Q. May the clerk's office help someone write a will?
A. No. You may consult an attorney or you may prepare your own will.
Q. Where may a copy of a death certificate be obtained in Virginia?
A. If the death occured in Virginia, death certificates may be obtained from the Bureau of Vital Statistics in Richmond, Virginia, phone (804) 786-6228 or (804) 786-6201.
Q. Whom does one contact about inheritance taxes?
A. Contact the Virginia Department of Taxation.
Q. Is this all that I need to know about administering estates?
A. No. There are more than two hundred sections of the Code of Virginia pertaining to the administration of estates. This webpage answers only the most commonly asked procedural questions.