By: Chris Arakaky

Probate is the official proving and recording of a decedent’s last will and testament. It can also refer to the general administration of the decedent’s estate when there is no will (which is called an intestate estate). In Virginia, the primary person responsible and accountable to the circuit court and the commissioner of accounts is the personal representative. When the decedent left a will, the personal representative is called an executor or executrix. In an intestate estate, the personal representative is called an administrator. 

Acting as the personal representative of an estate requires a lot of time, effort, and expenses. The personal representative first must become qualified by the court to act. If they are not a Virginia resident, they may have to post a secured bond on the estate. Probate taxes must also generally be paid (10 cents per $100 for the state probate tax, local taxes may also apply). Once qualified and approved, the inventory of the estate and the first estate accounting (which is also recurring every year until the estate is closed out) must be filed. Notice of probate must be mailed to the heirs and beneficiaries of a will as well. From beginning to end, the entire process is generally around 18 months to three years.

Due to the difficulties of a formal probate, a person who would otherwise seek to become a personal representative should consider some alternatives available under certain circumstances. Qualification of a personal representative is not always necessary.

Small Estate Act Affidavit

When a decedent’s personal estate is worth $50,000 or less, Virginia allows a person to obtain assets of a decedent without qualification via the Small Estate Act affidavit. “Personal estate” simply means the decedent’s personal property like cash, money, household furnishings, belongings, etc.; It does not include real estate. Sixty days must have passed since the death of the decedent, and there must have been no application for qualification of personal representative made or pending. The affidavit should list out the successors of the estate, and one or more of the successors should be designated by the others to receive payment or delivery of the small asset on behalf of the rest.

Transfer Without Affidavit

When the decedent left any asset valued at $25,000 or less, payment or delivery of that asset is allowed without an affidavit as long 60 days have passed since the decedent’s death, and no application for the appointment of a personal representative is pending or has been granted in any jurisdiction. 

It is very important to note that, unlike the Small Estate Act affidavit, the party in possession and control of the asset is allowed to transfer possession but not required to. If the financial institution, bank, or other party refuses to budge, this option will not be sufficient, and the person seeking possession will likely have to rely on the Small Estate Act affidavit. 

Real Estate Affidavit for Intestate Estates

When a person dies intestate, Virginia Code § 64.2-510 allows any person with interest in the decedent’s real estate to file an affidavit setting forth (i) a description of the real estate owned by the decedent at the time of his death (ii) that the decedent died intestate; and (iii) the names and last known addresses of the decedent’s heirs at law. This affidavit can be used to transfer title of the real estate to the heirs. The person filing the affidavit need not be the personal representative of the estate. Of course, this option to transfer ownership would not be available if the decedent died with a will (e.g., died testate).

Advantages of Formal Probate

Even if these alternatives are available, formal probate with the qualification of a personal representative may still have advantages in some situations. 

The designated successor listed in the Small Estate Act affidavit (or even a person who receives an asset of $25,000 or less without an affidavit) is a fiduciary in charge of safekeeping and maintaining the asset received. If they breach this fiduciary responsibility, the other successors or creditors of the estate could pursue claims against them, and they could be held personally liable. If there are a lot of unpaid taxes, credit card bills, medical expenses, etc., formal probate will allow a personal representative to give notice of debts and demands hearing to resolve these claims before distribution.

Another advantage of going through the process of formal probate is the personal representative can sell real estate via a power of sale, either granted to him or her in a will or by the court through petition. Liquidating the decedent’s real estate could be helpful in satisfying outstanding claims against the estate or distributing to the beneficiaries/heirs if the successors would prefer to sell the property and split the proceeds.

There are a myriad of considerations involved in determining whether formal probate is necessary and/or advantageous vis-à-vis any available alternative. If you have had a family member pass away recently, you should contact a Virginia estate administration attorney to guide you through the process.

To learn more about Dunlap Bennett & Ludwig and how we assist you with your estate administration and probate needs, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


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Posted in: Estate Planning

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