An Estate is in Probate, What Happens Now?

November 25, 2020


When a person passes away, his or her property will go through a process known as probate. Probate can be defined as the court process of administering an estate and distributing property according to a valid will or the intestacy statutes of Virginia. The probate process can take anywhere from six months to over a year, and it is oftentimes complex. For this reason, it is highly advisable for people with an interest in the estate to understand the process while grappling with the death of a loved one. Additionally, the probate of a decedent’s estate can involve lawsuits as to the validity of a will, as well as issues surrounding insolvency. This makes it important as an heir or beneficiary to pay close attention to what is happening during probate.

The Probate Process

When a person passes away, their estate will be admitted to probate. In Virginia, there is no separate probate court that may be found in other jurisdictions. The probate process instead takes place in the circuit court located in the county or city that the decedent resided in upon the date of death.Once the estate is admitted to probate, a personal representative will be appointed and qualified. A personal representative in the State of Virginia must be at least 18 years of age, capable of being bonded and obtaining a surety, and mentally competent. In a case where the decedent dies with a will, the personal representative is called an Executor. Where the decedent dies without a will (or intestate), the personal representative is known as an Administrator.

If the decedent dies intestate, anyone who is an heir, including spouses, children, parents, and siblings may be appointed as Administrator. If there are multiple heirs, he who submits a written waiver of the right to qualify from all others who are entitled to do so will be appointed as Administrator.
To qualify as an Executor, the person looking for the appointment should present to the Clerk of Court the following:

  • A valid will naming the potential representative as such and proof identification
  • A death certificate
  • If a potential representative is not a resident of Virginia, a surety

Additionally, a potential representative will be required to sign an oath, ensuring that he or she will fulfill all duties and obligations as a personal representative.

Once qualified, the personal representative will be required to identify all beneficiaries of a will or heirs of the decedent. The personal representative will then have 30 days from the date of qualification to notify heirs and beneficiaries of his appointment as such. Additionally, the personal representative will be required to pay probate taxes and collect the assets to be distributed.

Other duties of the personal representative include filing an inventory and accounting report of the assets in the estate with the Commissioner of Accounts. Where an estate is not insolvent, the personal representative will then pay the debts of the estate and distribute all remaining property to beneficiaries as provided in the valid will or to heirs as provided by statute.

A Valid Will

According to section 64.2-403 of the Code of Virginia, a valid will must be in writing and signed by the testator or someone under the testator’s direction and in his presence. Additionally, the will must be signed by two witnesses who are not beneficiaries named in the will’s provisions, except where the will is handwritten by the testator and signed and dated.

A will must be proven and can be done in a few ways, including:

  • Self-proving affidavit. This affidavit shows that the signatures of the testator, or the decedent with a will, and those of the witnesses were properly notarized.
  • Two disinterested witnesses. These witnesses are people with no personal interest in the will’s provisions and must identify and affirm the testator’s handwriting and signature under oath.
  • Witnesses to the execution of the will. These witnesses must affirm at deposition and under oath that all requirements of a valid will were met at execution of the will.

Should I be Actively Participating?

Participating in probate can help to ensure that the personal representative is acting accordingly under the duties and obligations outlined in a will or by intestacy statutes. Participation is also important if you have reason to believe that a will is invalid and should not be admitted to probate.

Contesting a Will

While courts are generally unwilling to interfere with the wishes of a testator as set forth in a will, there are reasons for which a beneficiary might contest a will. In order to contest a will, a beneficiary will have to show that he or she is an interested person and the grounds for which the will is being contested.

Common reasons for contesting a will include:

  • The statutory requirements were not met. This usually means that the testator or the witnesses did not sign the will or have them properly notarized.
  • Lack of testamentary capacity. This is the case where it is proven that the testator was not of sound mind at the time of execution of the will. This means that the testator should understand that a will is being executed, the assets owned, and what will happen to those assets and to whom they will be passed upon death.
  • Undue Influence. This means that a beneficiary procured an interest in the will essentially by some type of duress. It typically requires a showing that someone in a close relationship with the testator had some sort of control or influence so that the testator did not freely make a decision regarding the will.

Contact Us Today to Schedule a Consultation with a Virginia Probate Lawyer

Actively participating in probate can ensure that your rights are protected, and your loved one’s wishes are respected. The experienced probate attorneys at McClanahan Powers, PLLC, can help you to understand the complexities of the probate process. If you are the beneficiary of a will or an heir prescribed law, contact McClanahan Powers, PLLC at (703) 520-1326, or visit our website to schedule a consultation today.