Real Estate Only FAQ
If there is a will, then
The named executor will make an appointment, see instructions, in the jurisdiction of probate (where the decedent resided at the time of death) to record the will without qualification (unless the will specifically directs the executor to sell the real estate). When there is no specific directive to sell, the statutes in the Commonwealth of Virginia do not require an executor to qualify. Once the will has been recorded, the real estate passes automatically, by operation of law, to the beneficiary of the real estate under the will.
When real estate is in Virginia, but outside the county having jurisdiction of probate, the will is still recorded in the county having jurisdiction. Recording fees and probate tax are collected. A certified copy of the will, list of heirs and probate order are prepared for the person presenting the will to record in the county where the real estate is located. Also included is a certificate reflecting probate tax has been collected on real estate by the clerk’s office having the original jurisdiction of probate.
If the probate jurisdiction is outside Virginia and real estate is solely held by the deceased in Virginia, exemplified (or triple sealed copies) of the probate documents are prepared by the jurisdiction of probate to record in the county in Virginia where the real estate is deeded. Recording fees and probate tax must be collected and a new list of heirs for Virginia must be recorded. Ancillary administration is not required in Virginia, unless it is a directive under the will to have the real estate sold by the executor. When this directive is absent, upon recording the will, the real estate passes automatically, by operation of law, to the beneficiary of the real estate in the will. The real estate may then be sold by the beneficiary, as a beneficiary (not as an executor).
If there is no will, then
The heirs would record a “List of Heirs/Real Estate Affidavit (PDF)," and pay the proper recording fee of $42.00. See the previous page for more detailed instructions.
Who inherits the property of an intestate (person dying without a will)?
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 with the surviving spouse, in which case, one-third passes to the surviving spouse and the remaining two-thirds is divided among all children.
- If no surviving spouse, all assets pass to the children and their descendants.
- If none, then all assets pass to the deceased's father and mother, or the survivor.
- If none, than all passes to the deceased's brothers and sisters or their descendants.
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.