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Trust and Estates Attorneys

Opening an Estate in Virginia

No matter the size of an estate, it is crucial to create a plan to best prepare for the future. Having the framework in place to provide a comprehensive guide for loved ones after death is essential in creating an organized, straightforward process. With this in mind, an estate planning attorney can help ensure that the estate process goes by both smoothly and efficiently, carrying out the wishes of your loved one with care and detail.

Opening an Estate

To open an estate in Virginia, an individual must make an appointment with the clerk of the court for the county or the city in which the individual resided or owned property at death. Some items may be helpful in this initial meeting, including the individual’s original last will and testament, an itemized list or understanding of the estimated value of the assets,  a list of the beneficiaries or heirs, including last known addresses, a driver’s license, and the required probate fee. The clerk will provide assistance in opening the estate. If an individual is appointed, they will be issued the records and letters of testamentary to proceed with the administration of the estate.

The first step in opening an estate in the Commonwealth of Virginia is for the executor, or the administrator that is seeking an appointment, to go to the circuit court of the county in which the individual either resided in at death, or owned at the time of death. The individual who is seeking appointment should be a Virginia resident, and if not, should be accompanied by a Virginia resident.

Usually, the individual that is seeking appointment is named as an executor in a last will and testament. However, in the event that the executor named is unable or unwilling to serve, or that the individual died without a last will and testament, it may be somebody else that is interested in seeking appointment in the estate.

Preparing Documents

To prepare to open an estate in Virginia, an individual must first go the clerk’s office of the circuit court. There are several documents that an individual should consider bringing. That includes a copy of the original will, a certified copy of the death certificate, an estimate of the fair market value of any real estate in Virginia, an estimate of the value of the assets held in the decedent’s sole name of the date of death, a list of names, ages and addresses of the heirs at law or the legatees, the beneficiaries that are named in the last will and testament, and a form of payment to pay the fees that are due. However, the most crucial part of opening an estate in Virginia having the original copy of the last will and testament, and making sure it is filed in the correct circuit court.

In Virginia, the initial pleadings are prepared with the clerk, and those pleadings are not usually prepared in advance of the meeting at the clerk’s office.

Appointing an Executor

After the initial filing, the court makes a determination of whether or not an individual is going to be appointed to serve or not. Individuals that are appointed to serve as either an executor or administrator then begin the process of administering the estate. This includes searching for assets belonging to the estate, valuing those assets as of the date of death, reviewing and paying any legally enforceable debt, assisting with the preparation and filing of any tax returns that may be due, and then ultimately creating a plan for distribution of the estate assets, either pursuant to a last will and testament or pursuant to the laws of intestacy.

The order of priority in Virginia refers to the individuals that are entitled to seek appointment to serve as the fiduciary of the estate, the executor, or the administrator.

Determining a Representative

Some of the important considerations to take into account before petitioning to be the appointed representative of an estate, are determining whether or not the individual seeking appointment would like to serve. They must also understand what the fiduciary obligation and the responsibilities and duties of that position are, whether they are capable of administering the estate, and whether there is any reason that the individual would be unable or unwilling to serve in that capacity. Another important factor is determining the sum of the assets of the decedent to determine whether or not an estate proceeding is necessary, dependent on the nature and the type of the assets of the decedent.

In Virginia, an individual will need to make an appointment with the clerk’s office in the county of which the decedent either died or held real estate so that an individual can apply to be appointed.

Bond Requirement

In some cases, a bond is required for an individual to serve. The bond is usually set to equal the value of the assets within the executor’s control, but the bond may be reduced if the value of the assets is reduced as well. In some cases, a decedent’s last will and testament waives the requirement of bond. Bonds can be obtained during the initial probate appointment, and the attainment of the bond is somewhat dependent on the seeker’s individual finances, their residence, their credit report, whether they have filed for bankruptcy, and their employment status. All those factors will help to determine whether an individual can qualify or be underwritten for a bond.