Text or Call Today 571-403-2619

Blog

Understanding Probate

Posted by Aubrey Carew Sizer | Jun 06, 2022

If you have given any thought to your estate plan – or even if you have not – you have almost certainly heard the term probate and may not understand the full implications of this legal process. If this is the position you find yourself in, you are not alone. Understanding probate can be challenging, but doing so can help you better understand your estate planning needs, which makes it a worthy pursuit. Wherever you are in the estate planning process, the experienced Virginia estate planning attorneys at The Law Office of Aubrey Carew Sizer PLLC (571-403-2619) can help you make the right choices for you – as you move forward with establishing your legacy.

Your Last Will and Testament

Your Virginia Last Will and Testament (will) is an important element of your estate plan, and the probate process is the court's mechanism for authenticating and implementing your will after you pass. The basics of probate generally include all the following:

  • Validating the legitimacy of your will if you have one (if you do not, this step in the probate process will be eliminated)
  • Appointing an executor – or a personal representative – to help move the process along and to help ensure that your wishes are upheld
  • Notifying your heirs of your death and that the process has begun
  • locating and compiling your assets and determining their value at the time of your death
  • Identifying and notifying anyone to whom you owe money (your creditors)
  • Paying off your debts
  • Preparing and filing your final tax returns
  • Distributing your estate in accordance with your stated wishes (if you have a will)

When it comes to the probate process, there are plenty of opportunities for legal complications and challenges along the way.

Validating Your Will

If you have a will, which you are well advised to do, it must be probated in the Virginia county in which you pass away. If, however, you own property in another state, it means that your last will and testament will require more than one probate process. The probate process can only be avoided when at least one of the following applies:

Authenticating your will can be done in one of the following ways:

  • The two witnesses who signed your will authenticate it.
  • The will is written entirely in your own handwriting.
  • The will contains a notarized affidavit of the testator, which makes it self-proving. 

Understanding probate is an important aspect of crafting a solid estate plan that reflects your wishes, minimizes your tax implications, and honors your legacy, and the dedicated estate planning attorney at The Law Office of Aubrey Carew Sizer PLLC is here to help.

Appointing an Executor and Notifying Your Heirs

If you named a personal representative in your will, the probate court will formally make him or her its executor, and he or she will oversee the probate process moving forward. If not, however, the court will appoint an executor to fill this role. The court grants the executor of your estate the legal authority to handle whatever legal matters arise. Within 30 days of being appointed, the executor is required to disseminate written notice of your passing to your heirs and to any other interested parties.

Taking Inventory of Your Assets

The next step in the probate process involves inventorying your assets and liabilities at the time of your death. Only non-exempt assets – those assets that are not structured to avoid probate – will be included in your estate, and from here, your executor will attend to all the following:

  • Obtaining appraisals for the fair market value of your non-exempt assets at the time of your death
  • Determining how each of these non-exempt assets is titled
  • Filing a complete inventory of your estate with the Commissioner of Accounts (the Commissioner)

Paying Your Debts and Taxes

Before your assets can be distributed to your heirs (according to your wishes), your executor must attend to both the following:

  • Paying off any debts associated with your estate
  • Filing your final taxes and paying any federal or state taxes owed

Distributing Your Assets

Only after moving through all the preceding steps can the executor or your estate move on to distributing your remaining assets. Prior to doing so, however, your executor must file the final accounting of your estate with the Commissioner – who must approve the proposed distribution. The Commissioner will also be called upon to approve the executor's fees.

Dying Without a Will (Dying Intestate)

If you die without a will, it is called dying intestate, and your non-exempt assets will still proceed through the probate process. These non-exempt assets generally include any properties or other assets that are in your name (or that include you as a joint tenant) at the time of your death and that are not addressed by any other estate planning tool, such as a trust. The following are all examples of assets that are typically exempt from the probate process:

  • Any properties or assets that you owned as a joint tenant and that included rights of survivorship
  • Any properties or assets that you owned with your spouse
  • Any properties or assets owned by you that you addressed with a trust
  • Any properties or assets owned by you that pass directly to a designated beneficiary

If you have a will, your non-exempt assets will be distributed according to the instructions you include in that will. If you do not, however, your assets will be distributed in accordance with Virginia's intestacy laws, which may not comport with your wishes.

Turn to an Experienced Virginia Estate Planning Attorney for the Professional Guidance You Need

The accomplished estate planning attorney at The Law Office of Aubrey Carew Sizer PLLC recognizes how challenging understanding probate can be. This is the motivation behind our dedication to helping clients like you address their estate planning needs head-on – with insight and focus. The peace of mind that comes from resolving your estate planning concerns cannot be overstated, so please do not wait to contact or call us at 571-403-2619 for more information

About the Author

Aubrey Carew Sizer

Aubrey Carew Sizer is the Principal Attorney of The Law Office of Aubrey Carew Sizer PLLC, a Northern Virginia law firm providing representation for Wills, Trusts, and Estate Planning, Long-Term Care Planning, Guardianship and Conservatorship, Special Needs Planning for the Disabled, and Probate, Estate and Trust Administration.

Services

The Law Office of Aubrey Carew Sizer PLLC provides customized and affordable estate planning (including wills, living trusts, powers of attorney, and advance medical directives); elder law services (including long-term care planning, special needs planning for the disabled, and guardianships and conservatorships); probate, estate and trust administration (including advising executors and administrators of estates about post-mortem planning and the local probate process in Virginia), as well as general aging and disability advice in Northern Virginia, including but not limited to Arlington, Alexandria, Ashburn, Bristow, Burke, Centreville, Chantilly, Gainesville, Fairfax, Falls Church, Haymarket, Herndon, Leesburg, Manassas, Manassas Park, Reston, Springfield, Sterling, and throughout Loudoun, Prince William, and Fairfax counties.

Menu