Where should the will be probated?

The will should be probated in the Circuit Court of the city or county of decedent's last legal residence. If the decedent died in a nursing home, his or her legal residence is presumed to be where he or she resided prior to becoming a patient.

What does dying "testate" or "intestate" mean?

If a decedent left a will, he or she is said to have died testate. If a decedent has no valid will, then he or she is said to have died intestate.

Who inherits the property of a decedent who dies without making a will?

If a decedent dies without a will, then Virginia law provides the lineage in which descendants inherit (after payment of funeral expenses, debts and cost of administration). It is as follows:

• All to the surviving spouse, unless there are children (or their descendants) of a previous marriage or someone other than the surviving spouse, in which one-third goes to the surviving spouse and two-thirds are divided among the children.

• If a decedent is not married at the time that he or she passes, then everything passes to the children and their descendants.

• If there are no children, then everything passes to the decedent's father and mother or the survivor.

• If father and mother are deceased, then everything passes to the decedent's brothers and sisters and their descendants.

See Virginia Code Section 64.1, as amended, for a complete list of beneficiaries.

When should I probate the will or if there is no will qualify as administrator of the decedent's estate?

There is no set time in which you must probate a will. However, you will need a certified copy of the death certificate and it usually takes about two weeks to get it. Also, it is an emotional and stressful time, so the probate can wait a couple of weeks after the funeral. It is recommended, though, that you start the estate process within 30 days after the decedent dies.

Who is responsible for presenting the will for probate?

Anyone can present the will for probate, however, it is usually the executor named in the will that presents it to the Court.

Who will the Court appoint as executor or administrator?

If there is a valid will, the person(s) named in the will normally will be appointed. If no executor is named, or the person named refuses appointment, the Court may grant administration to a named alternate in the will or a beneficiary of the decedent. If there is no valid will, preference is given to the surviving spouse and second to other heirs.

What should I take with me to probate a will or qualify on an estate?

First, the personal representative offering the will for probate or qualifying must make an appointment with the probate clerk. He or she should bring to the appointment the original will, a certified copy of the deceased's death certificate, and his or her driver's license or state-issued identification. He or she must also know the value of all of the assets owned and titled in the deceased's name only. The personal representative must also provide the names, addresses and ages of the heirs of the decedent, as well as the addresses of anyone named as a recipient under the will.

Is the appointment of an administrator or executor always required?

Formal administration is not usually required when the estate is small (under statutory amount). Additionally, qualification is not necessary to transfer title to a motor vehicle. Qualification is also not required in the cases of joint accounts with survivorship in banks and credit unions. Most of the time, life insurance proceeds are payable to a named beneficiary and the transfer of real estate is to a surviving spouse or other person where there were survivorship rights in a deed.

What duties are required of the Executor or Administrator?

The fiduciary duty begins when the executor or administrator takes possession of the decedent's property over which he or she has control. After determining the assets and liabilities of the estate, the debts must be paid. Then, pursuant to the direction of the will, the property is distributed. Written notice of qualification or probate is given to the heirs and beneficiaries of the estate within 30 days after qualification. An affidavit of filing of said notice is filed in the Circuit Court Clerk's Office within four months after qualification along with the filing fee. The executor or administrator also files with the Commissioner of Accounts a complete inventory of the assets in the estate within four months of qualification. 

Additionally, the executor or administrator must also file an accounting each year until such time a final accounting can be made and the estate is ready to close. This is also done through the Commissioner of Accounts. Often, a first and final accounting can be accomplished at the end of the first year following qualification. It is important that the executor or administrator keep complete and accurate financial records, as he or she must accurately report on all receipts and disbursements in his or her control.

Do all estates pay a probate tax?

When the value of an estate exceeds $15,000, a state probate tax at the rate of $1 per $1,000 of value is imposed on the probate of the will or grant of administration. This tax is not imposed on estates of less than $15,000. This tax, as well as recording costs and Clerk's fees is paid through the Circuit Court Clerk's Office when the will is probated or the administration is granted.

Where can I go for more information to specific questions?

You may contact one of the Probate Clerks in the Gloucester Circuit Court Clerk's Office at 804-693-2502. The Clerk will answer any specific questions that you may have and give you instructions as to what you need at the time of probate.