Probate is the official proving of a will as the last will and testament of a decedent. Generally, the term probate is used broadly to describe the court process of administrating a decedent’s estate after death.
An attorney can assist with guiding a client through the probate process and simplify it for the deceased’s family. He or she can assist with preparing any of the necessary court reports, in reviewing and collecting the assets, and in making an inventory of all the assets of the estate.
Moreover, a lawyer can assist with advising the estate executor or administrator of his or her duties and responsibilities with regard to the administration of the assets. He or she can also assist with creating a plan for distribution of the assets. Finally, in some cases, a Virginia probate attorney can assist with filing the necessary federal estate tax return, if required.
Preparing for Probate
The procedure for probate is often one that is prescribed long before an individual passes away. Therefore, the probate procedure is often determined by whether or not a decedent had any estate planning prior to death that would allow for a simplification of the probate process. For example, a decedent may have had a plan in place to avoid probate, or he or she may have organized his or her assets in such a way to make the administration procedure more streamlined.
If estate administration is a concern, an individual may choose or wish to speak with an attorney regarding estate planning. Often, with the estate planning, an attorney can make recommendations for creating a plan that prepares for and anticipates any issues that may plague the administration of an estate upon the death of a decedent. Thus, the creation and execution of such a plan may be helpful in simplifying the probate administration process or avoiding it all together.
Unique Aspects of VA Probate Process
The probate process in Virginia varies from other local jurisdictions because an individual needs to appear in person in the county where the decedent resided or owns real estate to begin the probate process. Often this requires making an appointment with the Clerk of a Court and then going to the Clerk of the Court and petitioning to move forward. The Virginia probate process itself will vary but the administration of the estate can take up to a year in some cases, depending on the nature and the complexity of the estate.
The length of the probate process in Virginia will depend on the type of probate and the type of procedure administered and the complexity of the case. Eventually, probate ends when all of the assets of the estate have been distributed either pursuing to the last will and testament or to the Commonwealth laws of intestacy.
Consequences of Not Following the Probate Process
Probate is required if an individual has assets in their sole name. When a person intentionally conceals or destroys a will to prevent probate then the person may be guilty of a felony, and if an individual has custody of an original will and refuses to present it to the court then the court has the ability to summon that person and compel the production of a will in cases where probate is required. In addition to those consequences, it is possible that assets may not be able to be moved until an individual is appointed as the executor of the personal representative of the estate to properly transfer title of those assets.
Appearing in Court
Probate is handled in Virginia by the Clerk of the Circuit Court. The location of the circuit court will be dependent upon where the individual resided at death, where they owned the property and a couple of other circumstances. Selection of the proper court is important and it is something that an attorney can assist someone with.
When an individual wants to qualify as the personal representative of the estate, they need to make an appointment with the Clerk of the Court for the correct county to seek qualification. There are a number of items that may be prudent to bring to this appointment. These necessary items include the original last will and testament if any exists, a list of the heirs with information containing their addresses, ages, and relationship or degree of kinship to the person that has passed away, the probate tax return, any other information or memorandum of facts regarding the decedent’s full name, place of death, marital status and address. In addition, it may be necessary to bring a check so that any probate fees or costs are paid, and also it may be helpful to bring along a certified death certificate.
It may be prudent to check with each county’s website to determine what the courts allow in each specific county before continuing the probate process in Virginia. A person cannot bring weapons into a court, and some courts also do not allow cellphones or other electronic devices. It may also be prudent to dress professionally in a manner that is conservative. It may be helpful to check the court’s website to see if they provide guidance on what a person can wear. The clerks will vary from state to state as well as from county to county, and the clerks cannot provide legal advice. The number of available clerks as well as the nature of the clerks will be dependent upon the particular county in which someone is seeking probate or qualification.
How an Attorney Can Help
An attorney can assist in two ways. First, an attorney can assist with the creation of a plan for an individual during his or her lifetime that helps to avoid and plan for estate administration issues prior to the death of the decedent. Second, when a loved one passes away, a lawyer can assist with the administration of his or her estate.
An attorney can provide advice with regard to the fiduciary obligations of a personal representative, executor, or administrator of an estate. He or she can assist with the creation of a complete inventory of the assets of the estate, the evaluation of legally enforceable debts of the estate, and the establishment of a plan for distribution of the estate pursuant to the laws of the Commonwealth of Virginia or the decedent’s last will and testament.