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What is Probate?

December 28, 2009

What is “probate”?  Probate is basically the process of proving before the appropriate court that a document identified as a last will and testament is genuine.  The advocate of the will, often the “executor” appointed in the will itself, presents the original of the will to the Clerk of the Circuit Court located in the city or county where the decedent lived at the time of death.  The Clerk then reviews the document to confirm that it meets the requirements under Virginia law for a validly executed and properly proven will.  If so, the will is received for recordation by the clerk.

How much does it cost?  When you probate a will, you will be asked to estimate the value of the estate assets, including real and personal property, located in Virginia when the decedent died.  For estates over $15,000, the Clerk will collect a probate tax based on a rate of 10 cents for every $100 of value.  Some courts also charge an amount equal to 1/3 of the applicable probate tax.  So, if the decedent’s estate had an estimated value of $500,000, the Virginia probate tax would be $485.00, plus 161.66 if the locality charges an additional 1/3.

How long does probate take?  This question does not lend itself to a “one size fits all” answer.  The length of time probate will take depends on, among other things, the size and complexity of the estate, the Circuit Court handling the matter, and the efficiency of the executor.  As for certain “hard” deadlines, the executor must file an inventory of assets with the “Commissioner of Accounts” within four months from the date on which they qualified as executor.  An accounting (basically a detailed check register) must be filed within sixteen months from the qualification date.  Basically, probate takes as long as it takes the executor to wind up the estate, identifying and paying just debts and distributing the remaining assets among the beneficiaries as spelled out in the will.  The real point of the inventory and accounting process is to protect the beneficiaries.  The Commissioner of Accounts only job is to ensure that the executor is properly doing his or her job, holding that person accountable for properly disposing of property to appropriate beneficiaries as the testator requested.

So, all in all, probate in Virginia is designed to facilitate the orderly winding up of a decedent’s estate.  The process ensures that the executor carries out his or her responsibilities, and it also serves to protect beneficiaries from executor’s mistakes or, in rare instances, fraud.  With a tax rate of 10 cents for every $100 over $15,000, only a small fraction of the estate goes to the court in the form of a probate tax, leaving almost all of the estate, after payment of just debts, to the beneficiaries.

Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future cases. Also, nothing in this website creates an attorney/client relationship, and you should not leave anything of a confidential nature on this website.

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