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When Is Probate Required in Virginia?

In the State of Virginia, probate is the legal mechanism that is implemented after someone dies (becoming the decedent in the probate process). Probate is required regardless of whether the decedent had a valid will at the time of his or her death. If the decedent had a will, probate involves distributing his or her assets in accordance with his or her wishes – as described in the will – and if the decedent had no will, his or her assets are distributed in accordance with Virginia’s probate laws (which means they are distributed to his or her family members as dictated by the law). 

It sounds complicated because estate planning is a complicated area of the law, and if you are facing a concern involving probate, you are always well advised to have an experienced Virginia estate planning attorney on your side. 

Non-Probate Assets

Not all assets must go through probate. Real property that is owned in the decedent’s name only must proceed through the probate process, but so-called non-probate assets can bypass this legal step. Common examples of assets that do not require probate include:

  • Those assets the decedent owned in conjunction with someone else in what is known as joint tenancy or tenancy by the entirety. Such assets pass automatically to the named survivor. 
  • Any assets in which the decedent designated a beneficiary (outside of his or her will) will pass directly to the named beneficiary. 
  • If the decedent has a revocable living trust in place, the assets therein will pass directly to the named recipients (bypassing probate). 

Common examples of non-probate assets include:

  • IRAs, 401(k)s, and other retirement accounts
  • Life insurance policies
  • Pension benefits

Small Estate Procedures

If the decedent’s estate is small (generally under $50,000), his or her surviving family members may be able to avoid the formal probate process altogether. In such instances, the beneficiaries named in the decedent’s will can file an affidavit (that bypasses probate) with the court clerk. 

The Probate Process

Unless the decedent has set his or her assets up not to go through probate (such as through beneficiaries and/or trusts), most estates do. Probate typically affords the decedent’s surviving spouse (or another close family member) the authority to gather the decedent’s assets, resolve the decedent’s debts and taxes, and transfer the assets according to the decedent’s wishes if he or she has a will. The circuit court in the county where the decedent resided, owned a home, or owned other real estate handles probate, and only if a conflict arises does the circuit judge need to become involved.  

An Experienced Virginia Estate Planning Attorney Can Help

If you’re facing an estate planning issue, such as probate, addressing the matter head-on as efficiently as possible is key, and the knowledgeable estate planning attorneys at Mahoney & Richmond, PLLC, have the skill, legal insight, and experience to help you. For more information, please don’t wait to contact us today. 

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