Settling an Estate in Virginia; Where to Begin?

By Brenda Waugh

When a loved one passes away, close family or friends are relied upon to settle the estate. In Virginia, we do not have a separate probate court. If the decedent had a will, the executor files the document with the Circuit Clerk of the County where the person resided. While it can be filed anytime after the person’s passing, many attorneys recommend that it be filed within 30 days of the decedent’s death.

The executor will bring the following to the Clerk’s office to file: the original copy of the will and any codicils or amendments to the will, if there is one. They must also bring a certified copy of the death certificate, valid photo identification, a listing of names, ages, and addresses of heirs at law, payment for the probate tax, and the decedent’s last home address. The ex- ecutor will be required to file other documents, including a listing of assets.

When the decedent dies intestate or without a will, all property subject to probate will be divided among heirs per the Code of Virginia, generally split between a surviving spouse and children or other surviving relatives.

In cases where the person’s assets to be distributed are less than $50,000, the estate is a “small asset estate,” and no formal administration is usually necessary. The will will be probated (proven and recorded), and no further action is required. People with substantial assets may nonetheless have a “small asset estate” when property passes to another upon death due to a designation of beneficiary, a joint asset held with a right of survivorship, or when the asset con- veys due to a “transfer on death” deed or provision.

The steps to settle an estate, even when it is not a “small asset estate,” are straightforward. When the person has a will, the executor may file requisite documents with the court to begin the process. If there is no executor, any beneficiary may be appointed. When a person dies intestate, beneficiaries will need to agree on the administrator of the estate.

If the person had a will, the executor would follow those directions. If not, the administrator will divide the assets following the Virginia intestate statute that requires the property to be divided between the spouse, the children, and other descendants. In addition, the executor or administrator will generally need to post a bond equal to the estate’s value, which may be posted with real property in the Commonwealth of Virginia. However, a bond is optional when the will waives the requirement of surety or if there is only one beneficiary.

The duties of the executor or administrator involve the following:

•Determining the assets and debts of the estate.

• Notifying the beneficiaries.

•Resolving the debts.

•Filing an accounting with the Commissioner of Accounts.

One of the debts that must be paid is outstanding taxes. In the Commonwealth of Virginia, those will include the final state and federal income tax return for the decedent, the final state property tax return, and the probate tax. The state and federal income tax return must also be filed if the estate has income. Finally, in some larger estates, estate taxes (both federal and state) may be required. However, the executor or administrator can usually be compensated for the work in resolving the estate.

In Clarke County, the Circuit Clerk’s office is at 102 North Church Street, Berryville. However, appointments are required and may be scheduled by calling (540) 955-5116. More information is available online at tinyurl.com/ mv9a38wv. And www.vacourts. gov/courts/circuit/resources/ probate_in_virginia.pdf.

Brenda Waugh is a lawyer/ mediator with Waugh Law & Mediation, serving clients in the Blue Ridge region of Virginia and Eastern Panhandle of West Virginia