An Estate is in Probate, What Happens Now?

November 25, 2020

trusts and estate planning

When a person passes away, their 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 frequently complex. For this reason, it is highly advisable for people with 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. Instead, the probate process 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. The decedent dies without a will (or intestate), the personal representative is an Administrator.

If the decedent dies intestate, 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 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 possible representative will be required to sign an oath, ensuring that they 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. 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 pay the estate’s debts 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 intention 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 valid will requirements 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 a testator’s wishes as outlined in a will, there are reasons for which a beneficiary might contest a will. To contest a will, a beneficiary will have to show that they are interested 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, 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 duress. It typically requires showing that someone in a close relationship with the testator had some control or influence. The testator did not freely decide 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 understand the probate process’s complexities. 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.