If you’ve been named as executor of your loved one’s estate, you will serve a key role in the probate court process, which is how assets of a deceased individual’s assets that pass through a will reach any named beneficiaries therein.
Probate is necessary to ensure, first, that a decedent’s final debts and expenses are paid, and, second, that the beneficiaries named in the will receive their inheritance. Under court-supervision, an executor is responsible for overseeing this process.
Executorship is a big responsibility, and it can seem especially overwhelming during this already difficult and painful time for you and your loved one’s other living relatives. This step-by-step guide will help you understand the probate court process in Commonwealth of Virginia, including the initial forms to file and how to prepare for your meeting with the probate court clerk.
Note: This guide covers the basic probate process when the decedent (deceased individual) left a valid last will and testament. If your loved one died intestate (without a valid will), you should consult with an experienced probate / estate planning attorney for specific guidance related to your particular matter to understand the probate process for an intestate estate.
1. Determine which court forms you’ll need and where to file them.
With a few exceptions, Virginia’s probate process is controlled by required PDF court forms issued by the Virginia Supreme Court. Some Circuit Courts also have their own customized, specific forms for their local Court, so it is always smart to contact your local Circuit Court to ask for any specific website address that they may have to link you to their local forms. In Virginia, Probate Matters are under the supervision of the Circuit Court in the city or county where the decedent resided at the time of his or her death, especially if they owned property in that city or county. However, if they did not own any real estate and died in a hospital, then there may be grounds to file for probate in the city or county where they died. Each Circuit in Virginia has an arm of its court called a Commissioner of Accounts, who handles the ongoing supervision of the filings with the Court.
If your loved one owned more than one residence in Virginia, you’ll file in the local court of the city in which they last resided. You’ll also need to record a certified copy of the original will in the city or county where their other properties are located. However, real estate itself does not go through Probate automatically in Virginia, and it is prudent to contact an experienced Probate attorney to determine how to handle any and all real estate of the decedent before you file anything with a local Circuit Court related to the probate process.
After you consult an attorney, to ensure you know the right next steps and what asserts will actually need to be reported to the Circuit Court, you (or your attorney) locate the applicable “Forms for Decedent’s Estate” on the appropriate local Circuit Court’s website needed to begin the qualification process to serve as Executor and prepare for the initial reporting process for the assets that will flow through your loved one’s Probate Estate.
While there are several optional forms you can file (including a waiver of executorship affidavit, if you wish to decline your duties), the most common forms you initially need to prepare are as follows:
- Probate Information Form
- List of Heirs
- Notice Sent to Heirs and Beneficiaries
- Probate Tax Return Form
You will need to prepare the forms above before your first meeting with the probate clerk at the Circuit Court where you are filing (see Step 2). Some local Courts, like Fairfax Circuit Court’s Probate Division, will actually help you with all these forms as long as you call them to schedule an appointment with their office. Appointments can take 2 months or longer to schedule as this Court is one of the busiest in the Commonwealth. This is why it is best to contact the local Probate Clerk of the Circuit Court where you believe you will be filing to ask them about their specific process and how soon you may schedule a qualification meeting with them.
2. Schedule a qualification meeting with the local probate clerk.
Once you have completed the forms from Step 1, you will attend an initial qualification meeting to be sworn in by the Probate Clerk to serve as Executor for the Estate. You may also need to obtain a bond, if bond has not been waived in the Will or if you are not a resident of Virginia, so make sure you know what is expected of you by the Court before this meeting (see Step 3). You also must bring a valid driver’s license or passport as well as your checkbook to pay any applicable filing fees and initial probate taxes. Once you are qualified, you can then reimburse yourself from the Probate Assets that you will be located, depositing, and managing under a new bank account called a Probate Bank Account.
3. Apply for a probate bond and appoint a local registered agent (if you’re a non-Virginia resident).
If you plan to be the Executor of an estate but are not a resident of Virginia, you must apply for a probate bond, which is local insurance company that guarantees your services Executor. You’ll also need to appoint a Virginia resident to serve as a local registered agent for you, using a Consent of Non-Resident Fiduciary form. Sometimes, if you hire a local Virginia attorney to help you, they can agree to serve as your local agent in Virginia for this purpose. Be aware that if you are a convicted felon or have filed for bankruptcy, you may not qualify for a bond and may also have to resign to serve as the Executor in favor of one of the alternate Executors named in your loved one’s Will.
4. Get a tax identification number from the IRS and set up a probate bank account.
At the end of your initial qualification meeting, the Court will issue you what is known as a Letter of Appointment (once known as Letters Testamentary). You should obtain at least 6 certified copies of these in addition to the 2 free certified copies given to you by the Court, because you will need to provide them to banks, taxing authorities, and more during your service as Executor. You will then be able to go to IRS.gov and obtain a tax identification number called an EIN that you will use to open up the Probate Bank Account in which to manage all the cash assets of the Probate Estate. You cannot open such an account without the EIN. This account will be used to pay debts and other estate-related expenses. Any remaining money will eventually be transferred to the beneficiaries from this account.
5. Determine whether you need to file additional forms based on the size of your loved one’s estate.
During Step 1, you may learn that the Estate you are handling qualifies for something called Expedited Probate (e.g., you are the sole beneficiary-surviving spouse and Executor, and assets passing to you thru the Will are $25,000 or less in value) or Small Estate Treatment (e.g., asset involve only bank accounts valued at less than $50,000). If the decedent’s estate does qualify for such treatment, you will be done with Probate. You may simply need to fill out a special affidavit form to complete the court process.
If your loved one died with a larger estate, there will be several more steps and forms to file. At this point, we highly recommend speaking with an experienced estate planning attorney to help you complete the probate court process.
Your attorney can guide you through the remaining steps you’ll need to take as an estate executor and potentially help you reduce probate costs. He or she can also help you fill out the proper forms for your situation and keep the process moving to ensure your loved one’s estate distributions are handled efficiently.