After a person passes away, there are a lot of misunderstandings regarding a last will and testament. The first misconception is that the will can be changed. Generally, a will cannot be changed after someone has already passed away. That is not to say that there may not be a procedure or a family agreement that can be made regarding distribution, but the will itself cannot be changed.
The other misconception with regard to a last will and testament is the authority that it provides. Often, a last will and testament will need someone to act as an executor or a personal representative. The sheer fact that someone is nominated in a last will and testament does not necessarily mean that this person has any authority to collect assets or to make any distribution.
The will must first be filed with the clerk of the court in the Commonwealth of Virginia. After a person is qualified to serve, then they may be able to serve on behalf of the estate to make distribution and to marshal assets and to pay any legally enforceable debts. The process that unfolds in regards to the will after a death in Virginia can be complicated, solidifying the necessity of an experienced attorney.
Distribution of Property
Many individuals think that the distribution of property happens very quickly after death in Virginia, or that there is a formal will reading and the property is distributed at that time. Generally, it does not often work like that. Typically, what happens is the person who was nominated in the last will and testament to serve on behalf of the estate will go to the clerk of the court in the appropriate county in the Commonwealth of Virginia and file the original last will and testament, and petition the court to be qualified to serve on behalf of the estate.
After that, once the individual is successfully appointed, they will then proceed with marshaling all of the assets of the estate, reviewing and paying any legally enforceable debts, and then making distribution pursuant to the terms of a last will and testament. That process, in many cases, can take as long as a year.
In some cases, there are continued required court administration procedures or court reporting or there may be difficult issues for the estate to sort out before any assets are distributed. An attorney will examine the will after a death in Virginia to appropriately assign and direct the will proceedings.
Control Over Distribution
The individual who has control over the distribution of the assets is the person that is qualified by the Virginia Circuit Court to act on behalf of the estate as the personal representative or the executor. A common misunderstanding is that when somebody is nominated to serve as a personal representative, that person can keep all of the proceeds of the estate.
Rather, a personal representative is somebody who has a fiduciary obligation to manage the assets of the estate on behalf of the beneficiaries that are named in a last will and testament after a death in Virginia. Naming somebody alone as a personal representative does not give them the capacity to take the estate assets and keep them for their own but rather tasks them with managing the estate pursuant to their fiduciary obligations and then making distribution if there are any remaining assets after legally valid and enforceable debts are paid to the named beneficiaries.
Length of Dispersion
Generally, it can take as long as a year for all assets to be dispersed. In other cases, where there are complex issues planning the estate, it could take even longer. Some of the factors that can determine how long it will take for assets to be distributed are whether or not there are family disputes, if there are debts or claims that are in dispute, and whether or not the decedent owed any federal estate taxes. It is not uncommon for a personal representative to retain all of the assets until the payment of any big expenses have been made including any federal estate taxes which may be due. Determining the proceedings of a will after a death in Virginia are crucial in understanding the distribution of assets.
Benefit of an Attorney
It can be very important to work with an attorney who understands the laws of the Commonwealth of Virginia and the tax laws to determine how someone’s distribution in a last will and testament will be made and what issues may arise based on a person’s wishes. There are a lot of issues that can be contemplated and thought through by an attorney when dealing with a will after death on the estate planning side that can assist with avoiding a delay in estate administrative cost and fees and, in some cases, even family disputes if they are planned for a will advance long before the decedent has passed away.
After death, an attorney can assist with administering the estate and generally in most cases from the start to finish, they can advise or assist in advising the personal representative about what their fiduciary duties are. With regards to the estate, they can help prepare court filings, they can attend court hearings if necessary, and they can work to create a plan for distribution of the estate assets pursuant to the last will and testament.