WHAT IS PROBATE?
Probate is the official proving of a will, as the valid and genuine last will and testament (original, not a photocopy) of a decedent by admitting the will to record in the Circuit Court Clerk's Office where he or she resided at his or her death. If the decedent died in a nursing home, then that person's legal residence is presumed to be where he or she resided prior to becoming a resident at such institution. The term is also used to include the process of qualifying a person as an executor of a will or administrator where there is no will. If a decedent dies without a will the court appoints an individual to receive all assets (solely in the name of the decedent), receive all claims, pay all creditors and then distribute the remaining assets to the beneficiaries in accordance with Virginia state law.
IS PROBATE OR ADMINISTRATION OF AN ESTATE REQUIRED?
It is necessary to probate the will when the decedent owns assets, whether personal or real estate, solely in his or her name (assets that do not have a joint owner with right of survivorship, beneficiary named, or payable upon death designee). Assets include personal property such as bank accounts, life insurance policies, savings bonds, stocks, retirement accounts, and other types of valuable items, including personal belongings and vehicles. There is no set time limit to which a will must be probated or estate administration must begin. It is recommended however that you begin the process within thirty (30) days after the death of your loved one.
WHERE DO I PROBATE OR ADMINISTER AN ESTATE?
Probate is handled through the Gloucester Circuit Court by appointment only on Wednesdays, Thursdays and Fridays with one of the two probate clerks. Please call 804-693-2502 to schedule an appointment.
<The Probate Clerks are:
Margaret Walker, Clerk
Cathy Dale, Chief Deputy Clerk
Telephone No.: (804) 693-2502
Facsimile No.: (804) 693-2186
PROBATE BY APPOINTMENT ONLY ON WEDNESDAYS, THURSDAYS OR FRIDAYS. FOR FURTHER INFORMATION OR TO SCHEDULE AN APPOINTMENT, PLEASE CONTACT MARGARET OR CATHY DIRECTLY
Administrator: The person appointed by and qualified by the probate clerk to administer the decedent's estate when he or she died without a will.
Administrator CTA: A person, other than the executor named in the will, that is appointed to administer the decedent's estate. This person serves when all named executors are unable to serve due to incapacity, death, or refusal of their right to serve.
Beneficiary: The person or organization entitled to receive from the estate.
Bond: A written and signed promise to pay a certain sum of money on a certain date, or on fulfillment of a specified condition, to which the obligor officially recognizes an obligation to pay money in the event he or she does not properly perform his or her duties.
Certificate of Qualification: This Certificate is the paper that the personal representative receives from the probate clerk at the time that he or she qualifies as executor or administrator of the decedent's estate and it states that the qualified representative has authority to act on behalf of the estate.
Certified Copy: A copy of a record or document signed and certified by the Clerk or Deputy Clerk of the Court as a true copy of the record in that Court that is the custodian of the original record or document.
Codicil: An addendum to a will that may modify, add to, alter, subtract from, restrain or revoke provisions in an existing will.
Commissioner of Accounts: An individual appointed by the Circuit Court to monitor the activities of personal representatives.
Creditor: An organization or person who owes the decedent money.
Decedent: The deceased person.
Estate: All property belonging to the decedent at the time of his or her death, including real estate, tangible and intangible personal property, and all other assets owned by or in his or her control.
Executor: The individual named in the decedent's will to administer the estate. The Executor must appear before the Clerk and qualify to validate his or her appointment.
Fiduciary: A term used to refer to an executor, administrator or trustee. This is a person in a position of trust for another's property.
Heirs at Law: Individual(s) who would inherit the decedent's estate if he or she died without a will.
Holographic Will: A will written wholly by the testator in his own handwriting and not witnessed.
Intestate Estate: An estate that is administered without a will.
Inventory: A list detailing the schedule of property in an estate, describing the specific article and its value.
Personal Representative: A term used for either the administrator or executor of the decedent's estate.
Probate: The procedure that admits a will to record in the Clerk's Office. Also, used to include the entire process of administering an estate including qualification.
Qualification: The procedure where the Clerk appoints a person to serve as executor or administrator of a decedent's estate.
Self-Proved Will: A will that includes a notarized affidavit of the testator and attesting witnesses, who all signed in the presence of each other.
Testator: One who dies leaving a will.
Testate Estate: An estate to be administered pursuant to a will.
Will: A written document that gives instruction on how a decedent wants his or her property disposed of after his or her death.
FREQUENTLY ASKED QUESTIONS
Where should the will be probated?
The will should be probated in the Circuit Court of the city or county of decedent ' last legal residence. If the decedent died in a nursing home, his or her legal residence is presumed to be where he or she resided prior to becoming a patient.
What does dying "testate" or "intestate" mean?
If a decedent left a will, he or she is said to have died testate. If a decedent has no valid will, then he or she is said to have died intestate.
Who inherits the property of a decedent who dies without making a will?
If a decedent dies without a will, then Virginia law provides the lineage in which descendants inherit (after payment of funeral expenses, debts and cost of administration.) It is as follows:
All to the surviving spouse, unless there are children (or their descendants) of a previous marriage or someone other than the surviving spouse, in which one-third goes to the surviving spouse and two-thirds are divided among the children.*If a decedent is not married at the time that he or she passes, then everything passes to the children and their descendants.*If there are no children, then everything passes to the decedent's father and mother or the survivor.*If father and mother are deceased, then everything passes to the decedent's brothers and sisters and their descendants.*See Virginia Code Section 64.1, as amended, for a complete list of beneficiaries. (insert)
When should I probate the will or if there is no will qualify as administrator of the decedent's estate?
There is no set time in which you must probate a will; however, you will need a certified copy of the death certificate and it usually takes about two weeks to get it.
Also, it is an emotional and stressful time so the probate can wait a couple of weeks after the funeral. It is recommended though that you start the estate process within 30 days after the decedent dies.
Who is responsible for presenting the will for probate?
Anyone can present the will for probate; however, it is usually the executor named in the will that presents it to the Court.
Who will the Court appoint as executor or administrator?
If there is a valid will, the person(s) named in the will normally will be appointed. If no executor is named or the person named refuses appointment, the Court may grant administration to a named alternate in the will or a beneficiary of the decedent. If there is no valid will, preference is given to the surviving spouse and second to other heirs.
What should I take with me to probate a will or qualify on an estate?
First the personal representative offering the will for probate or qualifying must make an appointment with the probate clerk. He or she should bring to the appointment the original will, a certified copy of the deceased's death certificate, and his or her driver's license or state issued identification. He or she must also know the value of all of the assets owned and titled in the deceased's name only. The personal representative must also provide the names, addresses and ages of the heirs of the decedent, as well as the addresses of anyone named as a recipient under the will.
Is the appointment of an administrator or executor always required?
Formal administration is not usually required when the estate is small (under statutory amount). Additionally, qualification is not necessary to transfer title to a motor vehicle. Qualification is also not required in the cases of joint accounts with survivorship in banks and credit unions. Most of the time, life insurance proceeds are payable to a named beneficiary and the transfer of real estate is to a surviving spouse or other person where there were survivorship rights in a deed.
What duties are required of the Executor or Administrator?
The fiduciary duty begins when the executor or administrator takes possession of the decedent's property over which he or she has control. After determining the assets and liabilities of the estate, the debts must be paid; and then pursuant to the direction of the will, the property is distributed. Written notice of qualification or probate is given to the heirs and beneficiaries of the estate within 30 days after qualification. An affidavit of filing of said notice is filed in the Circuit Court Clerk's Office within four months after qualification along with the filing fee. The executor or administrator also files with the Commissioner of Accounts a complete inventory of the assets in the estate within four months of qualification. Additionally, the executor or administrator must also file an accounting each year until such time a final accounting can be made and the estate is ready to close. This is also done through the Commissioner of Accounts. Often, a first and final accounting can be accomplished at the end of the first year following qualification. It is important that the executor or administrator keep complete and accurate financial records, as he or she must accurately report on all receipts and disbursements in his or her control.
Do all estates pay a probate tax?
When the value of an estate exceeds $15,000, a state probate tax at the rate of $1.00 per $1000.00 of value is imposed on the probate of the will or grant of administration. This tax is not imposed on estates of less than $15,000. This tax, as well as recording costs and Clerk's fees is paid through the Circuit Court Clerk's Office when the will is probated or the administration is granted.
Where can I go for more information to specific questions?
You may contact one of the Probate Clerks in the Gloucester Circuit Court Clerk's Office at (804) 693-2502. The Clerk will answer any specific questions that you may have and give you instructions as to what you need at the time of probate.
GLOUCESTER COUNTY COMMISSIONER OF ACCOUNTS:
Michael T. Soberick
Assistant: Ann Williams
Available Days: Monday, Tuesday, Thursday, and Friday
Telephone No. (804) 642-6111
Physical Address: 2614 George Washington Memorial Highway, Hayes, VA 23072
Mailing Address: Post Office Box 298, Gloucester, VA 23061
Probate Links - Forms and Information
Fiduciary Forms - www.courts.state.va.us/forms/circuit/fiduciary.html
Virginia Code (Sections relating to Probate) - http://leg1.state.va.us/000/lst/LS438850.HTM
Virginia Bar Association - (Section Relating to Probate) www.vba.org/admdecest.htm
- Obtain multiple certified copies of the death certificate. The funeral home will generally provide it to you within one or two weeks after your loved one's (decedent) funeral.
- Obtain original Last Will and Testament of decedent, if one exists.
- Determine the legal heirs at law as stated in Virginia Code Section 64.1-1 (Courses of Descents Generally) and then compile the names, address, and ages for each.*Determine the assets of the estate and their value. These are assets in the name of decedent only. Assets with a beneficiary or payable upon death named or joint survivor are not included in the estate.
- Determine probate/administration filing fees and taxes to be paid at the time of your appointment with the probate clerk. These fees are as follows: Probate Will - $16, Qualification Fees - $20 to $30, List of Heirs - $16, Probate Order - $16, Transfer Fee - $1, Real Estate Affidavit and List of Heirs - $17, and the state probate tax is $1 per $1,000 value of the estate. You will need to bring the appropriate funds with you to the probate appointment.
- Call the probate clerk and schedule the probate appointment. She will gather information from you to determine if a secured bond is required. You will need to have completed steps 1-5 prior to your appointment.
- Appointment with probate clerk. Probate Clerk will probate the will, if there is one, and determine if the executor needs to qualify. If there is no will, the probate clerk will determine if a grant of administration is needed and for what purpose. If a grant of administration is needed, the personal representative must take an oath and give bond (secured or unsecured) before entering into his or her duties. The bond is a part of the qualification and is assurance that the personal representative shall faithfully discharge the duties of his or her office. After qualification, the probate clerk will issue a Letter or Certificate of Qualification, which will give the personal representative authority to take possession of the decedent's assets and administer his or her estate. Every personal representative, whether the decedent died with a will or not, must file a List of Heirs setting forth the legal heirs at law. Notice of Probate and/or Qualification is also required pursuant to Virginia Code § 64.1-122.2. The probate clerk will also furnish the personal representative with blank inventory and accounting forms that he or she will submit to the Commissioner of Accounts.
- The personal representative must, within 30 days of qualification, give notice to all heirs-at-law of the decedent, whether or not there is a will; all living and identified beneficiaries under a will, including those who are descendants of a deceased beneficiary (unless a different intention appears in the will), and beneficiaries of any trust created by the will. After the personal representative gives his or her notice of probate as required by Virginia Code § 64.1-122.2, he or she must file with the Circuit Court Clerk's Office along with filing fees of $16, within four (4) months of qualification, an affidavit certifying that notice of probate and/or qualification was mailed or delivered to the listed persons.
- Within four months of qualification, the personal representative must file an inventory with the Commissioner of Accounts for Gloucester County. The probate clerk will give you the inventory form and the contact information for the Commissioner at the probate appointment
- Within 12 months after filing your inventory or 16 months after qualification, whichever occurs first, the personal representative is required to file an accounting of the estate records for the entire year following the inventory. In most cases, a first and final accounting is prepared and the personal representative can distribute the estate to the beneficiaries and close the estate out.