Probate is defined as the official proving or establishment of a last will and testament. Commonly, this term refers to the court administration procedure over a decedent’s estate. In Virginia, probate is done on a county level, meaning each circuit court handles probate for its jurisdiction. On the other hand, avoiding probate means that there are no assets that must be administered through an official court administration process, which therefore means that an individual died without owning any assets in their sole name.
Due to the complications that can occur when a person plans to avoid probate in Virginia, it is important to contact a Virginia probate lawyer as soon as possible.
Probate Avoidance Planning
Probate avoidance planning is one type of planning that helps to avoid the court administration procedure and which is generally more common in Virginia, due to a requirement that a testamentary trust has continued oversight by the court. This is a deviation from other local jurisdictions.
Generally, in probate avoidance planning, assets pass by a mechanism that is separate and distinct from the court administration procedure. For instance, assets that were held jointly or which had a beneficiary designation may pass by operation of law. Assets that were pre-funded into a trust during an individual’s life also avoid probate.
Many people believe the probate process is something that should be avoided at all costs. Commonly, this notion is based on misinformation regarding the process itself. While it is true that avoiding probate is a goal of many estate plans, it is not a goal of all estate plans. There are benefits and consequences associated with an estate that requires probate.
For example, the probate process is beneficial as it can provide for a more transparent estate administration through court oversight. In some jurisdictions, it allows a limitation of a statute of limitations for the estate and can allow for notice to be sent regarding unknown errors or unknown appointments. However, probate does require court oversight and filings, which may, under some circumstances, lead to delays in estate administration. The decision as to whether to avoid probate must be considered on a case-by-case basis. Such a consideration should include an examination of the assets of the estate and the individual’s goals and wishes for their estate planning.
When assets are passed without probate in Virginia, they may be passed without any court supervision. This, in turn, may lead to questions of transparency as some family members may not be privy to the division of assets. Moreover, without a specific individual or entity overseeing this process, no strict accountability can be taken.
Probate typically cannot be avoided after death. If avoiding probate is a goal of an estate plan, that plan often needs to be in place long before somebody has passed away. This is because the probate process governs any assets in a decedent’s sole name on the date of death that neither have a beneficiary designation nor a joint owner.
While some individuals will choose to use joint accounts to avoid probate, such accounts are not always the best manner in which to deal with estate planning. This is because the assets in a joint account often do not pass through the probate process and are therefore not governed by a decedent’s last will and testament. For example, if an individual has three children and, in their last will and testament, leaves all of their assets to those children in equal shares, they must be aware of the possible consequences of any joint accounts in their name. Often, the assets in such an account will pass directly to the joint owner, and will not be distributed equally among the three children.
Alternatively, if an individual passes away and all of their assets are in their sole name, probate will generally be required. An individual may need to be qualified to be able to access those assets so that they can be distributed either pursuant to the last will and testament or to the heirs-at-law and the Commonwealth of Virginia.
It is important to note that the taxable estate includes all assets of the estate, even those that are owned jointly and those that have beneficiary designations. Thus, the taxable estate includes all assets, regardless of how they were owned, so long as they were in the control of the decedent upon death. Under some circumstances, the assets in the estate may not be sufficient to pay applicable estate taxes, as it is possible that joint assets may have passed outside of the probate process. Under such circumstances, the fact that assets have been left outside of the estate does not negate the fact that an estate tax may still be due, however, there may be insufficient probate assets to pay any estate taxes due.
Role of a Lawyer
An attorney can assist with avoiding probate in Virginia as this process usually occurs long before someone has passed away. Typically, a probate lawyer can assist with estate planning to avoid probate through such methods as the establishment of a trust that is funded during the lifetime of the decedent or the designation of beneficiaries.
The determination of whether it is possible or advisable for an individual to avoid probate is dependent on their goals. Such determinations are generally made on a case-by-case basis, taking into account the individual’s overall family dynamic, the amount and nature of their assets, and their personal goals in the estate planning process.
Working with a Lawyer
A probate administration attorney can be helpful throughout the estate administration phase. After someone has passed away, it may be helpful for family members to hire an attorney as soon as possible, as such an attorney can provide assistance throughout the probate administration procedure. Additionally, such an attorney can provide advice and guidance with regard to the distribution of assets, the payment of estate taxes, and the general administration of the estate.
However, it may also be prudent to hire an attorney well before the administration process. Often, estate administration or probate is the second part of a two-part plan for individuals. An attorney can also assist in the first part of this plan, which is a planning phase that helps to avoid probate. Thus, if an individual would like to plan out their last will and testament before they pass away, a lawyer can help to guide them through this process.