Probate FAQ

Virginia Probate FAQs

What is Probate?

Probate is a legal process that oversees the disbursement of an individual’s estate after he or she passes away. If the deceased had a will or estate plan, probate will validate those documents and distribute property according to the terms in the will/estate plan. If the deceased did not have a will or estate plan, then Virginia’s intestacy laws determine who inherits the deceased’s property.

What Are the Responsibilities of an Executor/Administrator?

An administrator (often called an executor) can either be appointed by the court or named in the deceased’s will. Once established, the administrator is tasked with overseeing the probate process. This means the administrator must:

  • Submit the estate to probate
  • Assemble the deceased’s assets and accurately value those assets
  • Identify and pay all of the deceased’s creditors
  • File and pay the deceased’s final taxes
  • Identify and notify all of the deceased’s heirs
  • Distribute the deceased’s property according to the terms of the will or via Virginia’s intestacy laws

Who Inherits Property When Someone Dies Without a Will?

When an individual dies without a will, he/she is said to have died “intestate.” In this case, Virginia’s intestacy laws determine who inherits the deceased’s property. After the funeral expenses, debts and taxes have been paid, remaining assets will be distributed as follows:

  • If no children, then to the surviving spouse
  • If children, then one third to the surviving spouse, two thirds to the children
  • If no spouse, then all goes to the children and their decedents
  • If no spouse and no children, then to the deceased’s parents
  • If no spouse, no children and no parents, then to the deceased’s siblings

Which Assets Go Through Probate?

Only certain assets go through probate in Virginia. Assets that allow you to name a beneficiary, such as life insurance policies and retirement accounts, do not go through probate. Real property owned jointly with another individual may also transfer without the need for probate. The same is true for assets and accounts held in trust.

Can I Avoid Probate?

It is possible to avoid probate through strategic estate planning in Virginia. Gift deeds, transfer-on-death deeds and accounts, and trusts are common tools used to remove assets from the probate estate.