Probate is the process of proving to the court that a decedent's last will and testament is valid. The term probate can also refer to the administration of an estate. The process can be costly, lengthy, frustrating, and emotional—particularly if you're unable to prove the will is valid or your family member died without one.
Losing a loved one is difficult enough. The last thing you need is to find yourself in the middle of a complicated court proceeding while trying to grieve. Thankfully, if your loved one's estate does have to go through probate, you don't have to face the experience alone. At Cucinelli Geiger, PC, our compassionate and accomplished Virginia estate planning and probate attorneys can help you navigate the process from start to finish. We're here when you need us. Here's what you should know.
Proving the Will
Your loved one passed away, and you found their will, but there's a lot to do before you can start doling out inheritances. You will first have to validate the will, which requires submitting the original to the clerk or the Register of Wills in the probate court of the city or county where your family member resided prior to their death.
The clerk will review the document to confirm that it meets the state's requirements for a validly executed and properly proven will. This means that the will must be:
- In writing
- Signed by the testator (or by some other person in the testator's presence at their direction)
- Signed or acknowledged by the testator in the presence of two or more competent witnesses who are both present at the same time
If the will meets these requirements, the clerk receives it for recordation.
For the purposes of probate, an "estate" consists of all the real property and personal property assets that were held in the decedent's name at death, as well as those which pass under the will.
After validating the will, the court appoints the person named in the will to serve as executor of the estate, provided that they can show the court that they are suitable and competent to fill the role. This person has the legal authority to gather the deceased person's assets, pay any outstanding debts or taxes, and ultimately distribute assets to their intended beneficiaries.
Real estate that is not held jointly passes directly to named beneficiaries, and isn't part of the probate estate unless the will authorizes its sale.
If your loved one died without a valid will, they're said to have died "intestate." Under these circumstances, the estate goes through the probate process, with assets distributed to beneficiaries according to Virginia's intestate succession laws rather than your relative's wishes. The court usually appoints the surviving spouse or another close family member to serve as the estate administrator. This is essentially the same role as an executor, just with a different title.
There are a number of reasons your family may want to avoid probate. In addition to being expensive, lengthy, and complicated, the probate process is also a public record, which means anyone could potentially show up at the courthouse to read it or obtain a copy of the probated will. Whether you want to save your family money, avoid a frustrating legal process, or maintain discretion, careful estate planning can help you do it. Whereas wills must be probated, as experienced estate planning attorneys, we have a variety of other solutions to protect your family's future while helping them avoid the probate process.