Smyth County, Virginia
If you have suffered a death in the family and want to discuss estate matters, please call the Clerk’s Office for an appointment at (276) 782-4044. You will be assisted by the Clerk, John H. Graham, or by Rachel Pennington, a master deputy clerk who heads up our probate division.
PROBATE, WILLS, and ESTATES*
The laws of Virginia can be complicated regarding probate and estates. The information offered here is intended to be
overview of probate procedure in Virginia, and it should not be considered legal advice. If you
are in need of legal advice, you are encouraged to seek the advice and counsel of an attorney.
I. WHAT IS PROBATE?
Probate is the official proving and recording of the will as the authentic and valid last will and testament of the
deceased. The will should be probated in the city or county where the decedent was known to have
resided immediately prior to death; or if their residence is not known, where the decedent owned any real estate; or if none, where the
decedent died or has any estate. If the decedent died in a nursing home or similar institution, then that person’s residence is presumed to be
where he or she resided prior to becoming a patient at such nursing home.
II. WHERE SHOULD THE WILL BE PROBATED?
The will should be probated in the circuit court of the city or county where the deceased resided as discussed in
paragraph I above. Usually the Clerk of the Circuit Court or a deputy clerk handles the probate of wills and the circuit court judge is not
involved. However, any person interested in a will may appeal to the judge within six months of the order of the clerk admitting or denying a
will to probate.
III. WHAT DOES DYING “TESTATE” OR “INTESTATE” MEAN?
A person dies testate if he or she left a will. One dies intestate if that person
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 who will receive the decedent’s property.
IV. WHO INHERITS THE PROPERTY OF AN INTESTATE PERSON?
If a person dies without a will, Virginia law provides a “course of descents” as follows (after payment of funeral
expenses, debts and cost of administration):
~ 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 spouse and the remaining two-thirds is divided among all children.
~ if no surviving spouse, all passes to the children and their descendants.
~ if none, then all goes to the deceased’s father and mother or the survivor.
~ if none, then all passes to the deceased’s brothers and sisters and their descendants.
~ (there are further contingent beneficiaries set out in the Virginia statutes.)
V. IS THE APPOINTMENT OF AN EXECUTOR OR ADMINISTRATOR ALWAYS REQUIRED?
The appointment of an executor or administrator is not always required. If such is the situation, no formal
administration is necessary. This is usually true where the estate is a “small asset estate,” in which the decedent’s personal property on the
date of death has a value of no more than $50,000.00.
Additionally, qualification is not necessary to transfer a motor vehicle title. In these circumstances, the will is
probated (proved and recorded in the Will Books of the Circuit Court) and nothing further is required. Other instances where formal
qualification or administration may not be required are joint accounts with right of survivorship in banks, saving institutions, or credit
unions.
In most cases, the payment of life insurance proceeds to a named beneficiary and the transfer of real estate to a
surviving spouse or other person, where there were survivorship rights in the deed, occur outside the estate.
VI. WHEN SHOULD I PROBATE THE WILL OR (IF THERE IS NO WILL) SEEK TO BE ADMINISTRATOR?
There is no set time frame in which a will must be probated or estate administration must be started. The death of a
loved one is a particularly emotional, stressful, and busy time. The probate of the will can usually
wait until well after the funeral. It is recommended, though not required, that the initial steps in
the estate process start within 30 days after death.
VII. WHAT SHOULD I TAKE WITH ME TO PROBATE A WILL OR QUALIFY ON AN ESTATE?
1.
Proof of death (preferably a death certificate, but an obituary or funeral brochure will usually suffice)
2.
The original will, if the decedent had a will (copies of wills cannot be probated)
3.
A list of immediate family members and their addresses
4.
A list of all real estate owned by the decedent (bring copies of deeds if convenient to do so)
5.
A list of all bank accounts and their values as of the date of death. Are any jointly
owned?
(If you have any trouble obtaining this information, don’t worry . . . just bring in what info you can.)
6. A list of
all significant items of personal property having a “yard sale value” of
over $500, which were owned by the decedent, including but not limited
to the most likely such items: cars, jewelry, firearms, antiques,
furniture, china, silver, collections, business interests, and farm
equipment.
7. Payment
for probate and qualification fees (ie. cash, checks, and most
credit/debit cards (w/ extra fee)
8. Your own
cell phone, in case you need to “phone a friend” for an address or other
information.
9. Non-Virginia residents seeking to become an executor or
administrator must appoint a Virginia resident to serve as their agent
for service of process and may need to be bonded. If you are not a
Virginia resident, please call our office prior to your appointment for
more information.
VIII. WHO WILL BE APPOINTED BY THE COURT AS EXECUTOR OR ADMINISTRATOR?
The person who administers a decedent’s estate is usually called either an executor or an administrator.
Both are types of personal representatives, and the primary distinction between them is that an executor is named as such in a will,
while an administrator is not. The clerk shall not qualify anyone unless satisfied that he or
she is suitable and competent to perform their duties.
Just being named in a will as an executor does not, standing alone, make that person the executor.
To actually become the executor, a person must come to the courthouse in person and qualify as such before the Clerk, making oath and
giving their bond to faithfully administer the estate.
If there is no will or if the person named as executor in a will refuses to serve or ceases to act after being appointed,
administration of the estate may be granted to one who was named as the alternate executor in the will or one who is a beneficiary under the
will.
When someone dies intestate (without a will) and there is need for an administrator, the Clerk can appoint an
administrator within certain time frames:
~ within 30 days of death the clerk may grant administration (i) to a sole distributee or his designee, or, if there is
more than one heir, then (ii) to the one(s) designated by all distributees.
~ after 30 days have passed, the clerk may grant administration to the first distributee or his designee who applies.
If multiple people apply, the clerk gives all such distributees an opportunity to be heard.
~ after 45 days have passed, the clerk may grant administration to a non-profit charitable organization that served as
the decedent’s guardian or conservator.
~ after 60 days have passed, the clerk may grant administration to a creditor or to any other person.
The person appointed must take an oath that he or she will faithfully perform the duties required and further must give
bond in an amount at least equal to the value of the estate to be handled. Surety generally must be given on the bond unless the will waives
surety (which most wills do) or the person(s) appointed is (are) the only beneficiary(ies) or the appointment is of a bank or trust company.
If the appointee is not a resident of Virginia, or in the case of co-fiduciaries, if none are residents of Virginia, surety will be required.
When a nonresident attempts to qualify as co-fiduciary with a Virginia resident, if the Virginia resident cannot qualify for bond
without surety, neither can the nonresident.
IX. WHAT ARE THE BASIC DUTIES OF AN EXECUTOR OR ADMINISTRATOR?
Probably the most important duty is to ascertain and take possession of the deceased person’s property over which the
executor or administrator has responsibility or control. Further, the fiduciary (executor or administrator) must determine the liabilities
(debts) of the estate and determine the value of the estate over which the fiduciary does not have control (for tax-accounting reasons).
Further, the fiduciary must see to the payment of debts of the deceased and the estate (including taxes) and the sale or distribution of
property of the estate in accordance with the dictates of the will and the law of Virginia. Generally, unless the obligation is waived by the
Clerk, the fiduciary must file a complete inventory of the estate within four months of qualification with the Commissioner of Accounts. The
Commissioner of Accounts is a local person (generally an attorney) appointed by the circuit court to oversee and ensure that estates are
properly handled. The fiduciary must also give written notice of qualification or probate to the heirs and beneficiaries of the estate or
those who would have been the heirs, within thirty days after qualification or probate.
Finally, the fiduciary must make an accounting (generally a list of all assets of the estate, all distributions and all
assets on hand) on a yearly basis until a final accounting can be made. Often, a first and final accounting can be made at the conclusion of
the first year following qualification. The fiduciary must immediately report any change of address or telephone number to the Commissioner of
Accounts.
X. WHAT TAXES ARE THERE TO BE PAID?
~ At the time of filing the will the probate tax must be paid. (Generally $1.00 state probate tax and .33¢ local tax, if
applicable, per $1,000.00 value of the estate.)
~ State taxes.
~ The final income tax return of the deceased must be filed.
~ The final personal property tax return of the deceased must be filed.
~ An income tax return for the estate (income coming to the estate after death) must be filed if there is sufficient
income.
~ A Virginia estate tax return must be filed if required (generally only required if a federal estate tax return is
necessary).
~ Federal taxes.
~Just as for the state, the decedent’s final federal income tax return, estate income tax return, and estate tax return
must be filed if required. Generally estate taxes (both federal and state) are due only if the gross estate (includes life insurance and
survivorship property not handled by fiduciary) exceeds the threshold established by federal and state statutes.
XI. IS AN EXECUTOR OR ADMINISTRATOR COMPENSATED?
The administration of an estate generally requires a fair amount of time and energy.
Compensation is allowed. The Commissioner of Accounts must approve the compensation and generally this amount is limited to five
percent (5%) of the assets handled.
XII. WHERE CAN ONE GO FOR MORE INFORMATION OR ANSWERS TO SPECIFIC QUESTIONS?
~ Talk to the Clerk of the Circuit Court or the deputy clerk who handles probate matters. They will give you specific
instructions (usually written) at the time of probate.
~ Talk to your Commissioner of Accounts or an assistant. You will have to deal with them so it is good to make their
acquaintance early.
~ Talk to your attorney.
*Much of this information is from “Probate in Virginia” published by
the Virginia Court Clerks’ Association in 2015
•What to bring to a probate appointment
•Application to become a personal representative
•Note to Executors & Administrators
•Note to Executors & Administrators of Small Estate
•Note when a will is Probated without a Personal Representative
1) Guide to the Administration of Estates (published by the
Virginia Bar Association)
https://www.vba.org/page/guide_estates
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Introduction. This manual is intended to assist persons who are involved in the administration of a decedent’s estate in
Virginia. It is particularly directed to those persons who desire to know in a general way what is involved before agreeing to
serve as a personal representative of a decedent’s estate and to those persons for whom the time has come to assume the
responsibilities of ... |
2) Probate in Virginia
http://www.courts.state.va.us/courts/circuit/resources/probate_in_virginia.pdf
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Probate in Virginia15 - courts.state.va.us
local jurisdiction. It is recommended that an appointment be made with the Clerk or a deputy clerk. You might be given some
forms to fill out prior to the appointment. |
3. Forms for Probate and Estate matters (from the
Supreme Court of Virginia)
http://www.courts.state.va.us/forms/circuit/fiduciary.html
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Circuit Court Fiduciary Forms - Judiciary of Virginia
Circuit Court Fiduciary Forms To print a form, use the browser's print feature. How to Fill Out Revisable PDF Forms Format of
Forms. The following forms can be completed online and printed for submission to the court. |
4) Fee Schedule for Commissioners of Accounts
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- 1 - uniform fee schedule guidelines for commissioners of accounts . approved by the judicial council of virginia . april 27,
2017 . fees of commissioners of accounts |
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