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Smyth County Clerk of
Circuit Court Office
Wills and Estate
Administration/Probate
General Information
In order to probate (put to record) a will and to
qualify an executor or administrator of a decedent's
estate, you must appear in the Circuit Court Clerk's Office in the
County in which the decedent resided
at the time of death. Probate matters are normally handled by
appointment. Appointments generally
last approximately 45 minutes to an hour.
Scheduling a Probate Appointment
If you have access to a fax machine and a will exists,
please fax the will and death certificate to the attention of the
Circuit Court Clerk's Office's Probate Division at 276-782-4045 Include
a cover sheet that contains contact information so that a staff member
may contact you as soon as possible after reviewing the will. DO NOT write on the will itself.
If you do not have access to a fax machine and/or if
there was no will, please call the Probate Division
of the Clerk's Office at 276-782-4084. If a will exists, please have
it in hand when contacting the
Clerk's Office so that certain legal requirements can be confirmed over
the telephone.
Fiduciary Duties
It is important to keep in mind that the personal
representative (executor or administrator) of an estate is charged by
law with numerous responsibilities. It is the legal obligation of the
personal representative
to fully understand and discharge his/her required duties. Further
details may be obtained from the Smyth County Circuit Court Clerk and
Smyth County's Commissioner of Accounts. Your attorney
and accountant can provide assistance as well.
Forms
Many forms relating to estate matters are made
available through the web site of the Supreme Court of Virginia at
www.courts.state.va.us.
Frequently Asked Questions
Smyth County Circuit Court Clerk provides this
information as an aid to the general public in understanding the basic
procedures involved in probate and the administration of estates. This
guide is not intended to be inclusive, as the laws in Virginia regarding
probate and estate administration are complex and subject to change.
Furthermore, this information is not intended to take the place of legal
counsel provided by an attorney.
• How do I determine where to probate the will
or qualify as personal representative? Jurisdiction is
determined by the last place of residence prior to death. If the
decedent was in a nursing home at the time of death, jurisdiction is
determined based on the residence occupied before the decedent
became a resident of the nursing home.
• How do I decide whether or not I should
probate a will or qualify as Executor or Administrator of an estate
? There are several reasons why a will should be probated (or
recorded). The three basic reasons are:
• There may be assets that need to be
administered by a personal representative (i.e., assets in the
decedent's name alone, not held jointly with a right of
survivorship)
• The decedent may have owned real estate in
Smyth County or elsewhere, either alone or jointly with
someone.**
• The will, once probated, would become a
matter of public record, thereby serving as a formal
genealogical link to the decedent's family.
If the decedent died with a will, the personal
representative is strongly advised to record the will in the Circuit
Court Clerk's Office, even if qualification is not necessary. By
recording the will, it becomes a permanent record available for
review by all family members as well as potential beneficiaries and
creditors. Furthermore, if additional assets are discovered which
require the personal representative to qualify, the process of
recording the will will have already been accomplished.
**If the decedent died without a will and held
only real estate at the time of his/her death, the real estate
passes to the heirs at law in accordance with the laws of intestate
distribution. Although qualification is not necessary under these
circumstances, it is necessary to file a
List of Heirs/Real Estate Affidavit (form CC-1612) in
order for the Tax Assessor's records to be properly updated and to
reflect the intestate transfer of property in the Court's land
records.
• What should I do if I need to probate a
will and/or qualify as personal representative
(Executor/Administrator) of an estate? Call the Circuit Court
Clerk's Office and schedule an appointment. If the decedent had a
will, have the original will with you when you call to make the
appointment. The Clerk or Deputy Clerk with whom you speak will ask
you a few questions regarding the execution (signing) of the will
and the decedent's wishes regarding qualification of a personal
representative.
• How do I estimate the estate value?
Include all property (real and personal) that was in the decedent's
name alone at the time of his/her death. Do not include property
held jointly with a right of survivorship or property payable to a
named beneficiary (e.g., life insurance policies with a named
beneficiary). Include tangible personal property as well as
intangible assets (e.g., stocks, bonds, etc.). Estimate the fair
market value of the assets as of the decedent's date of death. DO
NOT DEDUCT debts owed, loans, or mortgage amounts. Compute separate
totals for personal property and real property.
• What is bond? What is surety? A bond
is a written promise that one will faithfully perform his/her duties
as Executor or Administrator. The bond is set at an amount greater
than the estate value and is payable to the Commonwealth of
Virginia. A bond issued on behalf of an estate ensures that the
person appointed as Administrator or Executor properly administers
the assets of the estate. This, in turn, safeguards the interests of
creditors, heirs, beneficiaries and the Commonwealth as their
interests relate to the estate. If neither the will nor Virginia law
waive surety on a bond, surety will need to be posted on the bond.
Surety has the effect of insuring the bond, should it become
payable. Most often, surety or security is obtained through a
bonding company. The company must have the authority to execute
bonds in this Court. A premium proportionate to the value of the
estate is paid to the bonding company.
• How do I arrange for surety? If it is
determined that surety on a bond is required, a bonding company
should be contacted to act as surety. A listing of bonding and/or
insurance companies that provide for fiduciary bonds may be found in
the local telephone directory.
•
What fees, taxes, and
costs will I need to pay upon probate or qualification?
| State probate tax |
($.001 x value of probate
assets) |
| Recordation of will |
$16.00 up to 10 pages (including the
Clerk's Order - testate only) |
| Recordation of list of heirs |
$16.00 (testate and intestate)
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| Transfer fee $1.00/parcel |
(only if real estate involved)
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| Clerk's fee Sliding scale |
(maximum $30) |
| Certificate of qualification |
$2.00 each ( one included in
base fee) |
•
What should I bring with
me to a probate appointment?
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TESTATE (with a will) :
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INTESTATE (without a
will) : |
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original will-
copy not acceptable
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certified copy of death certificate
if available
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certified copy of death certificate if
available
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approx. dollar value of probate assets
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witnesses to will or depositions
of witnesses, if not self-proving (Notarized)
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names, ages and addresses of heirs at
law
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approx. dollar value of probate
assets
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if within 30 days from date of death,
consent of all heirs at law who do not wish to qualify
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names, ages and addresses
of heirs at law
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cash or check to pay fees
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notarized renunciation of executor
named in will who does not wish
to serve (if applicable)
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cash or check to pay fees
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• Definitions: (Source:
VCCA Probate and Estate Administration Manual )
Executor - The person named in the decedent's will
to administer the estate who accepts appointment by qualifying before
the Clerk.
Administrator - The person appointed by and qualified
before the Clerk to administer the [intestate] decedent's estate.
Trustee - Person holding property in trust. One in
whom an estate, interest or power is vested.
Decedent - The deceased person.
Heirs - Persons who would inherit the decedent's
estate if the decedent died without a will.
Beneficiary - The person or organization entitled to
receive a portion of the estate.
Fiduciary - A person in a position of trust with
respect to another's property; a general term used to refer to an
executor, administrator or trustee.
Self-Proving - Acknowledgement of the testator and the
affidavits of attesting witnesses, made before an officer authorized to
administer oaths.
Qualification - Procedure whereby a person is
appointed by the Clerk to serve as executor or administrator of a
decedent's estate.
Testate - Dying with a will.
Intestate - Dying without a will.
Certificate of Qualification - (Also called Letters of
Testamentary) Formal instrument of authority and appointment given to a
fiduciary by the proper court, empowering him or her to act in the
capacity of a fiduciary.
• Whom should I contact if I have questions or
if I need to make an appointment for probate and/or qualification?
Jimmy
L. Warren, Clerk
Smyth County Circuit
Court
109 W. Main St., Room 144
Marion, VA 24354
(276)782-4044
•
After qualifying, whom
should I contact if I have questions regarding my reporting
responsibilities? Whom should I contact when I am ready to close the
estate?
Commissioner
of Accounts
John H. Graham
111 N. Park St.
Marion, VA 24354
276-783-7224 |
(The Commissioner of
Accounts is an attorney commissioned by the Circuit Court Judges
to oversee the actions of fiduciaries and is responsible for
reviewing and approving inventories and accountings.)
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