Frequently Asked Questions

1. What does dying "testate" or "intestate" mean?
2. When is it necessary to probate an estate?
3. Where should I go to qualify as a personal representative for an estate?
4. What is the procedure to probate an estate with a will?
5. What should the prospective executor/administrator bring to qualify?
6. What is a self-proved will?
7. Are holographic wills legal in Virginia?
8. What taxes and fees are associated with probate?
9. What are the duties of an executor/administrator?
10. How long does it take after qualification to complete the probate process?
11. Is an executor or administrator compensated?
12. Who inherits the property of an intestate (person dying without a will)?
13. Should a will be kept in a safe deposit box at a bank?
14. Where can one go for more information or answers to specific questions?

What does dying "testate" or "intestate" mean?
A person dies testate if he left a will. A person dies intestate if he does not have a valid will at the time of death. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent's property.

When is it necessary to probate an estate?
An estate must be probated when the decedent has property titled solely in his name at the time of death. Property jointly held with a surviving owner, property passing to another person through a beneficiary designation, property with a "Pay of Death" or "Transfer on Death" designation, or property titled in the name of a trust do not come under the terms or provisions of a will, and will pass outside of probate. Assets include real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities.A personal representative must qualify to file a wrongful death suit or to continue a pending suit when one of the parties dies before the conclusion of the suit.

Where should I go to qualify as a personal representative for an estate?
To the clerk's office of the circuit court of the jurisdiction:

1. where the decedent was last known to reside, if none, then
2. where the decedent owned real estate, if none, then
3. where the decedent died or had any estate
4. For persons residing in a nursing home/convalescent home, pursuant to § 64.1-76 of the1950 Code of Virginia, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient. However, that such presumption may be rebutted by competent evidence.

What is the procedure to probate an estate with a will?
The executor named in the will takes the will and other pertinent estate information (see following question) to the probate department of the Circuit Court to probate the will and qualify as executor. The named executor should be a Virginia resident, however, statutes will allow out-of-state residents to qualify.

When the named executor is not a resident of Virginia, a Virginia resident must accompany the executor to the probate office to either co-qualify or be appointed as a resident agent. Statutes govern the specific procedure to follow.

What should the prospective executor/administrator bring to qualify?

1. A Virginia resident to accompany a nonresident prospective executor or administrator.
2. The original will (for testate estates).
3. A certified copy of the death certificate.
4. Approximate dollar value of any solely-held personal assets.
5. Approximate fair market value of real estate in Virginia deeded solely to the deceased or the value of the percentage owned by the deceased when the real estate is deeded as tenants in common.
6. Names, ages and addresses of heirs at law. These are individuals who are legally entitled to receive an estate when there is no will, pursuant to § 64.1 of the 1950 Code of Virginia, as amended. This list is still required in a testate situation.
7. A check to pay fees calculated during the probate appointment, and must include your name, address, phone number and your social security number, and the Virginia Bar number if you are an Attorney. Fees are based upon the estate value.

What is a self-proved will?
A will which has an affidavit attached that contains specific language required by law. The presence of this clause eliminates the need to obtain witness depositions. (Section 64.1-87.1 and 64.1-87.2 of the Code of Virginia, as amended).

Are holographic wills legal in Virginia?
Holographic wills (those in the decedent's handwriting) may be admitted to probate if it shows testamentary intent, providing the entire will is written in the handwriting of the testator, signed by the testator and depositions of two disinterested parties who can identify the decedent's handwriting are submitted.

What taxes and fees are associated with probate?

1. The state probate tax is 10 cents per $100 of the estate value at the time of death.
2. The local probate tax is 3.33 cents (one third of 10 cents) per $100 of the estate value at the time of death.
3. The recording fee is $13 for the first four pages of the will, $13 for the List of Heirs, and $1 for each additional page.
4. The qualification fee is based on the value of the estate.
5. The transfer fee will be charged for any real estate taxed in the name of the decedent.
6. The final federal and state income tax, personal property tax, and estate tax returns must be filed for the deceased and the estate as applicable. Generally, federal and state estate taxes are only due is the gross estate (including life insurance and all property) exceeds $1,000,000 in 2002. For more information on taxes, contact the Internal Revenue Service and the Virginia Department of Taxation.

What are the duties of an executor/administrator?

1. Giving notice to interested parties and filing an affidavit of notice.
2. Filing income, inheritance, or estate taxes with the federal or state government.
3. Filing an inventory no later than four month after qualification date and filing a settlement of account or statement in lieu of accounts no later than 16 months after qualification date of the estate with the Commissioner of Accounts Office (not the circuit court clerks office), until the estate is closed.
4. Notifying the Commissioner of Accounts of any change of the Fiduciary's address.
5. Paying all Probate Taxes due to the Clerk of the Circuit Court.
6. Payment of debts in the order set forth by law.
7. Disbursement of remaining assets according to the will or to the heirs at law.

How long does it take after qualification to complete the probate process?
A fiduciary must file an inventory within four months from the qualification date. A first accounting or statement in lieu of the first accounting must be filed within sixteen months from the qualification date. Fiduciaries file these documents with the Commissioner of Accounts office. The fiduciary will get a packet at the time of qualification containing instructions and other necessary forms to be completed to properly administer the estate. Finalization of an estate varies in time depending upon various circumstances.

Is an executor or administrator compensated?
The law provides for fiduciaries to be compensated for the time and energy involved in administering a will. The Commissioner of Accounts must approve the compensation, which is generally limited to five percent of the assets handled.

Who inherits the property of an intestate (person dying without a will)?

1. All to the surviving spouse, unless there are children (or their descendants) of someone other than the surviving spouse in which case, one-third goes to the surviving souse and the remaining two-thirds is divided among all children.
2. If no surviving spouse, all passes to the children and their descendants.
3. If none, then all goes to the deceased's father and mother or the survivor.
4. If none, then all passes to the deceased's brothers and sisters and their descendants.
5. There are further contingent beneficiaries set out in the Virginia statutes. (Virginia Code Annotated §64.1-1)

Should a will be kept in a safe deposit box at a bank?
There is a Virginia statute that authorizes banks to allow a spouse, next of kin, or other person having an interest in locating a will access to a deceased person's safe-deposit box. This statute is not mandatory. As a result, many banks are reluctant to allow access due to fiduciary and privacy concerns (Section 6.1-332.1 of the Code of Virginia, as amended).

Where can one go for more information or answers to specific questions?
Please contact Oast & Hook at (757) 399-7506 or mail@oasthook.com. The attorneys and other fiduciary specialists in the firm can provide you with extensive information for settling estates or administering trusts.