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Understanding Virginia’s Probate Process

Probate2

When a loved one passes away, his or her will needs to go through probate. This is the legal process by which the decedent’s local circuit court oversees the final gathering of his or her assets, paying off debts, and the distribution of his or her assets per the will’s instructions. In most situations, the circuit court takes a hands-off approach and leaves the will’s executor to his or her tasks. A clerk or deputy clerk of the court can handle the matter and a judge does not have to be involved. However, other times, such as when there are ambiguities in the will or a family member contests it, the court is more involved.

Filing the Will in Court

Once a person passes away, an individual – who is often named the personal representative in the will – takes the will to the decedent’s local county or city court. Virginia does not have a separate probate court system, though some counties have their own probate division. The individual takes the will and evidence of the person’s death to the Clerk of the Circuit Court or a deputy clerk who handles probate matters. There will be a filing fee.

The Personal Representative

If a will names a personal representative, sometimes called the executor, and this person is willing to take up the task, then he or she will be named the personal representative of the decedent’s estate by the clerk of the court. However, if no one is named or the person named cannot or will not participate, then the clerk of the court or judge can appoint someone to the position. No one has the power to handle tasks for the estate until officially named as the personal representative by the court.

The Personal Representative’s Tasks

The representative of an estate may have to do a great many things in the months following a person’s death. However, the probate process can be broken down into only a few general tasks:

  • Determine the decedent’s assets. This includes finding out about all of his or her bank, investment, and retirements accounts, determining all of his or her real estate, and gathering all of the personal property.
  • Determine and pay all of the creditors. Many individuals leave behind some debt or unpaid bills that the estate needs to take care of. It is up to the representative to determine who all needs to be paid and how to pay them. If there is a great deal of debt, then the representative may have to sell certain assets. The representative may also use the estate’s funds to pay the funeral expenses.
  • Handle the estate’s final taxes. The representative of the state is responsible for using assets to pay off remaining taxes of the decedent.
  • Distribute remaining assets to the decedent’s beneficiaries. Once all of the decedent’s creditors and taxes are paid, it is up to the representative to make sure the decedent’s beneficiaries, which may be family, friends, and organizations, receive the assets left to them.

Contact a Leesburg Estate Planning Attorney

If your loved one passed away and you are supposed to be the executor of the will, contact an experienced Leesburg attorney at Whitbeck Cisneros McElroy PC at 703-997-4982. We can guide you through this process. Additionally, if you are preparing for your own future. We can help you devise a will or use other estate planning tools.

Resource:

law.lis.virginia.gov/vacode/title64.2/chapter5/

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Whitbeck Cisneros McElroy PC is located in Leesburg, VA and serves clients in and around Ashburn, Paeonian Springs, Hamilton, Sterling, Lincoln, Waterford, Leesburg, Purcellville, Lovettsville, Middleburg, Philomont, Round Hill, Arcola, Aldie, Dulles, Bluemont, Herndon, Haymarket, Reston, Great Falls, Clarke County, Fairfax County, Fairfax City County, Fauquier County, Loudoun County, Prince William County, Frederick County, Warren County, Winchester County, Arlington County.

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