Testate Estate FAQs
What is probate?
When is it necessary to probate and/or qualify on an estate?
An estate must be probated when the decedent has solely-held assets that do not have a joint or co-owner with rights of survivorship, a beneficiary (not in the will but actually on the account or security), or a payable-on-death designee. Assets include real property and personal property. Personal property includes bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities, as well as personal belongings and vehicles.
What if the property is held jointly with the right of survivorship?
The property will pass automatically. If there are no other assets than you will not to file anything with Clerk's Office. In order to remove the deceased from the tax records you may need to provide a death certificate to the Commissioner of Revenue.
Where should I go to qualify as personal representative for an estate?
To the clerk’s office of the circuit court of the jurisdiction:
- where the decedent was last known to reside, (this includes assisted living facilities) if none, then;
- where the decedent owned real estate, if none; then
- where the decedent died or had any estate.
For persons residing in a nursing home/convalescent home, pursuant to §64.2-454of the 1950 Code of Virginia, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient; however, that presumption may be rebutted in Court by competent evidence.
What does dying “testate” or “intestate” mean?
A person dies testate if he/she left a valid will. A person dies intestate if he/she did not leave a valid will. 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 hence who receives the decedent’s property.
What is the procedure to probate an estate with a will?
Why do I need to provide a List of Heirs even if they are not named in the will?
The heirs at law are not necessarily the beneficiaries of the will but are required to be recorded with the will pursuant to Virginia Code § 64.2-509. Heirs at law are determined by kinship to the deceased and are set by Virginia law. (Virginia Code § 64.2-200). If the heirs are at law are not beneficiaries in the will they may not be entitled to the state.
What are the fees associated with probate?
The Code of Virginia mandates fees for probate. State Tax is $1.00 per $1,000. Currently, Dinwiddie County does not charge a local probate tax. Additional fees will vary depending on the type of estate but it will usually range from $20 to $100. The statutes may change annually; therefore, check with the Probate Division for updates.
What does bond with surety mean?
A surety bond is a guarantee by a third party (usually an insurance or bonding company) that an Executor/Administrator will properly account for all money and property in the estate and that the Executor/Administrator will discharge his/her Executor/Administrator duties as required by law.
Can a will be filed with the clerk’s office prior to death?
The Clerk’s Office does not accept wills for safekeeping. Wills were kept for safe keeping in the Clerk’s Office prior to 2008. Please call the office to see if the Clerk’s Office has the will. The testator should ensure that all named executors know the location of the will. Photo identification is required for the testator to remove the will from the clerk’s office. The testator may give written, notarized consent for a designee to retrieve the will. The designee is required to show valid photo identification.
How is the value of an estate determined?
To determine the value of the estate you will need to compute separate sub-totals for real estate/property and personal estate/property.
Real Estate/Property - The value of all real estate that was solely in the decedent's name. Do not include property that was held jointly with the right of survivorship. The local county/city assessment will be used to determine the value. Dinwiddie County's assessments can be viewed online. The tax map also has the assessments. Do not deduct any mortgages or debts on the property.
Personal Estate - Personal assets that was in the decedent's name only at the time of his/her death which may include: bank accounts, savings accounts, certificate of deposits, stocks and bonds, retirement accounts, life insurance policies and other types of securities, as well as personal belongings and vehicles. Do not include accounts that are held jointly or assets payable to a named beneficiary (e.g. life insurance policies with a named beneficiary) or assets in a trust or assets payable on death. Estimate the fair market value of the assets as of the decedent's date of death. Sometimes you will only have an estimate of the value. An estimate is sufficient but try to make it as close as possible. Do not deduct debts owed, loans or mortgage amounts.
What if the named executor does not wish to serve?
The named executor must prepare a notarized statement renouncing the appointment. Priority goes to any alternates named in the will. If no alternates are named, or if any alternate executor renounces the right to serve (following the same procedure as the first named executor), then an “administrator c.t.a.” will need to be appointed and qualify as such. (See §64.2-500 of the 1950 Code of Virginia, as amended)
What if the named executor is deceased?
The alternate executor or administrator c.t.a. must present a certified copy of the death certificate of the deceased executor at the probate appointment.
What if the named executor wishes to be removed as such after qualifying?
Only the court may remove a qualified personal representative. It may be necessary to have another personal representative ready to be appointed at the time the original personal representative is removed. The executor, like any other qualified personal representative, must present a petition for removal, a praecipe/notice form to set the matter on the court’s motions day docket and present a proposed court order for the judge’s signature. A filing fee is required. You must file these documents, along with the filing fee. A new civil action case file will be opened. You should also reference the fiduciary case number on the documents, if applicable