Probate Estates          

“Probate” is a word commonly used to refer to the process of dealing with a deceased person’s assets. However, “probate” literally means to “prove a Will.” In Virginia, a Will is offered for probate to (1) establish that it is genuine, (2) establish that it was validly executed, and (3) establish a chain of title on the city or county records for the deceased person’s assets.

While each person’s situation is unique, below you will find answers to some common questions regarding Probate Estates:

 

Mother died, and she didn’t have a Will. What do we do?

Mother is said to have died “intestate.” Click here for our Intestate Estates page.

 

We found Mother’s Will. When do we do the formal reading of the Will?

The dramatic scene in Hollywood movies where all of the heirs assemble in the lawyer’s office, and with baited-breath await the making or breaking of their windfall fortunes, are scenes of a bygone era. This doesn’t typically happen, and won’t happen unless you request it.

 

We found Mother’s Will. Do we need to probate her Will?

Perhaps need is not the best word choice, here. In a practical sense, a Will only needs to be probated when (1) those left with the responsibility of settling Mother’s affairs can’t do so because Mother’s signature or authorization is needed to transact her business, or (2) Mother’s wishes will not be carried out absent doing so. However, Mother went through the effort to pay for and execute her Will, and it is her final entry into establishing a record of her place in local history. A Will found should be recorded with the Clerk’s Office, and in many cases should be offered for probate. Often, because of Mother’s wishes or the way she owned property, probate is unavoidable.

 

Can we do this on our own, or should we hire a lawyer?

You can do this on your own. Or you can hire a lawyer. Attorneys at WILSON LAW FIRM, PLC are comfortable preparing and submitting all of the documentation to the Clerk’s Office in advance of your probate appointment, to ensure that your probate experience goes smoothly and that you are in and out of the Clerk’s Office in a relatively short amount of time. Often, during the initial consultation with your attorney, other issues are uncovered which may be better resolved or investigated prior to offering the Will for probate.

 

What information do we need?

When you go to probate the Will, you will need the ORIGINAL Will, an ORIGINAL death certificate, an approximate value of all of the property owned solely by Mother at her death, your driver’s license, and your checkbook. Having a detailed accounting of Mother’s assets will be important in the coming months, but not at this stage.

 

What do we need to do before heading to the Clerk’s Office?

Regardless of whether you hire an attorney, an appointment needs to be made with the Probate Clerk in the Circuit Court Clerk’s Office. In many instances, you may also need to be prepared to post a bond in an amount greater than or equal to the total value of Mother’s estate. If this is the case, you will want to arrange for a local bondsman to meet you at your probate appointment so that the bond can be in place. Attorneys at WILSON LAW FIRM, PLC appear regularly before the Clerks, have relationships with bondsmen in many Virginia jurisdictions, and can arrange all of this for you.

 

Who needs to go?

The person offering the Will for probate is the “proponent.” Usually, this is the person named in the Will as executor or alternate executor. If the named executor will not be the proponent, sworn affidavits stating “why not” may be required. Someone will need to qualify as the executor or administrator c.t.a. (the still-used Latin term for the person appointed by the Clerk to administer the estate, if the executor is not available, declines, or no executor is named in the Will).

 

What is the executor’s role in the probate process?

The executor (or administrator c.t.a.) is responsible for (1) identifying, locating, and collecting Mother’s assets, (2) identifying, locating, and notifying those persons or organizations who stand to receive a share of Mother’s assets under the Will, (3) filing the appropriate paperwork with the Clerk of Circuit Court and the Commissioner of Accounts, (4) to the extent that Mother’s assets can satisfy her creditors, paying all of Mother’s debts, and (5) distributing Mother’s remaining assets in accordance with the Will. For more, click here for our Estate Administration page.

 

Where do we need to go to probate the Will?

A Will is properly probated in the jurisdiction where Mother was a resident at the time of her death. If Mother lived in a nursing home or other care facility at the time of her death, her residence is presumed to be located where she was a resident prior to being admitted to any care facility. If Mother owned real estate in more than one state, her Will may need to be probated in each of those states (estate planning could easily have avoided this costly and hassle-filled requirement).

 

What next?

After the Will has been offered for probate, the executor (or administrator c.t.a.) will want to open an estate account, file Mother’s last income tax return, file an estate tax return, file documents with the Commissioner of Accounts (namely the Inventory and the Accounting). WILSON LAW FIRM, PLC attorneys can assist you in preparing your legal documents and ensuring that your filings are timely, as well as referring you to tax professionals who can assist you in preparing your tax forms for filing with the Internal Revenue Service. Along the way, you may need to pay bills, assert or defend legal claims, sell real property, transfer titles to personal property, and make other distributions. Click here for our Estate Administration page.

Contact Us now, to discuss any Estate Settlement or Estate Administration questions you may have.

 

 

Wilson Law Firm represents clients throughout the Roanoke and New River Valleys and the surrounding areas, including Roanoke City and Roanoke County, Salem City, Botetourt County, Bedford County, Franklin County, Rocky Mount, Montgomery County, Blacksburg, Christiansburg, Campbell County, Lynchburg, Forest, Craig County, New Castle, Pulaski County, Pittsylvania, Chatham, and Smith Mountain Lake.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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