Tag: Probate & Estate Administration

Caroline, a lifelong Richmond resident, recently faced a difficult and unexpected situation. When her beloved uncle, David, passed away suddenly, he left no will. As the family’s go-to person for handling such matters, Caroline found herself overwhelmed with questions about what would happen to David’s estate. With no written directive from her uncle, she had no idea about his preferences for administering his estate or even where to start.

Through this experience, Caroline discovered the complexities of intestate succession in Virginia. The legal process of determining the distribution of property and assets when someone dies without a valid will, intestate succession determines the distribution of a decedent’s assets and property among surviving relatives.

This blog, from a knowledgeable and experienced Richmond estate planning attorney, delves into the specifics of intestate succession. Whether dealing with an estate for which a decedent did not establish a valid will or planning to protect your own assets, understanding these laws is crucial. Continue reading to learn more about how intestate succession works, who stands to inherit, and the steps you need to take.

For personalized service and attention, contact PJI Law at (804) 653-3450. Discover how establishing a will as part of a comprehensive estate plan can help you avoid complex situations and ease your family’s burdens after you pass away.

Who are the Heirs at Law in Virginia?

As Virginia probate attorneys know, when a person dies without a will, laws of intestate succession determine who stands to inherit from an estate and in what order. These individuals are the heirs at law.

In general, Virginia intestate succession abides by the following:

• If the decedent had a surviving spouse but no children, the spouse receives all assets.
• If the decedent had a surviving spouse and all children are shared with that spouse, the spouse receives all assets.
• If the decedent had a surviving spouse and any child(ren) from a previous relationship, the spouse receives one-third of the estate, and the remaining two-thirds is divided equally among all surviving children or their descendants.
• If the decedent had no surviving spouse but has children, the assets are divided equally among all surviving children or their descendants.
• If there is no surviving spouse or children, the decedent’s parents inherit everything.
• If there is no surviving spouse, children, or parents, the decedent’s surviving siblings and their descendants inherit everything.
• If there is no immediate family (spouse, children, grandchildren, parents, or siblings), more distant relatives may be entitled to inherit according to Virginia’s intestate succession laws.

Complications arise in cases of blended families, adopted children, or situations where a child has died before the decedent. Consulting trust and estate counsel can help you clarify these circumstances and reach an amicable resolution.

Terms to Know Concerning Virginia Wills and Intestate Succession

Term	Definition
Wills	Legal documents that outline how a person’s assets and affairs should be handled after their death.
Administrator	A person appointed by the court to manage and distribute the estate of a deceased person who died without a will.
Beneficiaries	Individuals or entities designated to receive assets or benefits from a will or estate.
Decedents	Persons who have died, particularly in relation to their estate.
Escheat	The process by which unclaimed or abandoned property reverts to the state.
Executor	An individual appointed in a will to administer the estate and carry out the wishes of the deceased.
Heir	A person who is legally entitled to inherit some or all of the estate of another person who has died intestate.
Intestate	The condition of having died without a valid will in place.
Intestate Succession	The legal process for distributing the assets of a deceased person who did not leave a valid will.
Per Stirpes	A method of distribution where descendants inherit a deceased person’s estate by branch, ensuring each branch receives an equal share.
Probate	The legal process of verifying a will’s validity and administering the deceased’s estate.
Probate Tax	Taxes imposed on the estate of a deceased person during the probate process.
Testate	The condition of having died with a valid will in place.
Testator	An individual who has made a will or given a testament.

Virginia Probate Attorneys Explain the Process

Navigating probate in Virginia can be straightforward for those with a will, known as testate estates. A valid will guides the court in distributing the estate according to the deceased’s wishes. However, not all testate estates are handled the same way since the nature of the estate determines the probate court’s approach.

Estates excluding real estate and consisting of personal property valued at $50,000 or less are classified as “small estates” under Virginia’s inheritance laws. Such estates can skip probate if 60 days have passed since the individual’s death. On the other hand, larger estates must undergo formal probate administration.

Understanding the distinction between real and personal property is essential. Real property includes land and attached structures like houses, while personal property encompasses items such as cars, furniture, jewelry, and financial investments. Assets like insurance policies and IRAs are typically not subject to probate and can be handled separately if properly designated.

In situations where there is no will, the court appoints an administrator to oversee the estate, prioritizing relatives of the deceased based on a specific order. The administrator manages debts and distributes assets according to intestacy laws.

Whether a valid will exists or not, an estate must settle debts such as taxes, expenses, and liabilities before distributing assets to heirs. This duty falls on either the executor named in the will or the administrator appointed by the court.

In Virginia, circuit courts handle probate cases in the county where the deceased lived for proper legal oversight and administration of estates.

Summary of Virginia Intestate Succession

Inheritance Rights of Surviving Spouses

In Virginia, if a decedent dies without a will, their spouse is entitled to a significant portion of the estate. The specific inheritance rights depend on whether the decedent had children and whether those children are shared with the spouse. If there are no children or other descendants, the spouse typically inherits the entire estate. If the marriage resulted in children with the decedent, the surviving spouse receives the entire estate. If there are any children/descendants from a separate relationship, the spouse receives one-third of the estate and the remaining two-thirds are divided between all children.

Inheritance Rights of Children

According to VA Code 64.2-200, if the deceased has a surviving spouse and children (or their descendants) who are not also the children of the surviving spouse, the children receive two-thirds of the estate and the surviving spouse receives one-third.

If all children are also the children of the surviving spouse, the entire estate goes to the surviving spouse. If there is no surviving spouse, the deceased’s children and their descendants receive the entire estate. Virginia law treats adopted children the same as biological children.

Unmarried Individuals Without Children

For unmarried individuals without children, the estate is distributed to other family members according to a specific hierarchy. If the deceased did not leave behind a spouse or children, the decedent’s parents inherit everything. If the parents have also passed, the estate transfers to the decedent’s siblings. In the absence of immediate family such as parents or siblings, more distant relatives like aunt, uncles, nieces, nephews, or cousins may inherit. If no relatives can be found, the estate may eventually escheat to the state of Virginia. This hierarchy ensures the distribution of the decedent’s assets to their family members in a manner reflecting their closest biological or legal relationships.

Unclaimed Estate / No Surviving Heirs

When no heirs are found, the estate is transferred to Virginia. Creditors can also step in to manage the estate if there are outstanding debts.

What are Non-Probate Assets?

As an estate attorney knows, non-probate assets bypass probate and pass directly to beneficiaries, avoiding an often time-consuming and costly process.

Examples of Non-Probate Assets

Non-probate assets can include:

• Real property owned by the decedent if there’s a transfer-on-death (TOD) deed
• Life insurance payouts
• Investment accounts
• Jointly titled real estate assets
• Retirement accounts
• Trust assets
• Payable on death or transfer on death assets

If an asset is owned with right of survivorship or has been proper beneficiary designated, these assets can be distributed directly to a beneficiary or beneficiaries without the requirement of probate, offering a more efficient vehicle for transferring assets and reducing the hardships on loved ones during a time of grief. Consulting a knowledgeable estate attorney can help you manage your non-probate assets and distribute them in alignment with your desires.

Naming Beneficiaries

Naming a beneficiary or beneficiaries for non-probate assets facilitates a smooth transfer of assets and prevents potential disputes among heirs. Non-probate assets, such as life insurance policies, retirement accounts, and bank accounts, generally require the completion and submission of a designated beneficiary form to the relevant financial institution.

Keeping these forms current is critical for transferring the assets to the designated beneficiary. A seasoned estate planning lawyer knows that taking the time to designate beneficiaries for your non-probate assets enables you to design a comprehensive estate plan that maximizes the value of your assets and offers your loved ones financial security.

Protecting Your Assets: The Importance of Wills & Comprehensive Estate Planning

While intestate succession laws provide for the distribution of assets in the absence of a will, they may not align with your personal wishes or values. Furthermore, without a will, you have no control over who will manage your estate and cannot ensure the proper care of your loved ones after you pass away.

Creating a will allows you to make clear and specific directives about how your assets should be distributed and who should oversee this process. You can also include provisions for minor children or dependents and designate guardianship. By outlining your wishes in a will, you can potentially avoid conflicts and disputes among family members after your passing.

However, comprehensive estate planning goes beyond just creating a will. Other critical documents such as powers of attorney and advance medical directives can secure the management of your affairs if you become incapacitated or unable to make decisions for yourself. These documents also alleviate the burden on loved ones who would have to make difficult decisions without your guidance.

How Can Virginia Estate Planning Lawyers Help?

Estate administration — the maintenance and distribution of your assets after death, which includes probate — involves settling estate taxes and debts and carrying out your wishes. Due to the complexities of the laws surrounding these matters, consulting knowledgeable and experienced Richmond estate planning attorneys can protect your assets and distribute them according to your wishes.

A lawyer well-versed in estate planning will work closely with you to understand your goals and develop a personalized plan that meets your specific needs, assist with the preparation of legal documents, provide guidance on asset protection strategies, and offer insights into how to minimize potential estate taxes or other financial obligations upon your passing.

A will forms the foundation of a well-devised estate plan, but estate planning does not end there. Depending on your unique circumstances and goals, your attorney may recommend trusts, powers of attorney, and other legal instruments. More complex situations may require business succession planning if you’re a business owner or a transfer-on-death deed if you’re concerned about what will happen to your home after you pass away.

PJI Law: Experienced Probate Attorneys & Estate Planning Attorneys in Richmond, Virginia

For grieving family members, undergoing intestate succession can be overwhelming and time-consuming. Don’t leave your estate administration to chance by failing to establish a will as the foundation of a well-designed estate plan. Take control of your legacy and care for your loved ones after your passing by consulting an experienced estate planning attorney.

Have you been typing “probate attorneys near me” or “estate law firms near me” into your search bar?

Whether you have recently lost a loved one and need assistance navigating intestate succession, or want to create an estate plan for yourself, contact PJI Law at (804) 653-3450 to schedule a consultation.

When you hire a knowledgeable and experienced lawyer from PJI Law, you can expect personalized service and attention from our entire team and peace of mind knowing you have prepared well for the future. Let PJI Law be your guide and advocate.

Copyright © 2024. PJI Law, PLC. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

PJI Law, PLC
4108 E Parham Rd,
Richmond, VA 23228
(804) 653-3450
https://pjibe.webteam.ai/

You may be unsure of your responsibilities if you have been named as the personal representative (executor) in someone’s last will and testament (will). Many individuals are unaware of what an executor does, let alone whether qualifications are required to serve in this capacity. Some estates are complex and require full administration, while others are relatively simple to administer. 

To help you understand this role, an experienced probate lawyer from PJI Law, PLC, in Fairfax, Virginia, explains an executor’s responsibilities and how an attorney can guide you through this complicated legal process.

Who Can Serve as an Executor of an Estate in Virginia?

Any competent adult over 18 can serve as an executor. Many people name a spouse or a family member as their executor but can also appoint a professional executor or a lawyer to handle their estate administration upon their passing.

An executor needs to be responsible, trustworthy, and willing to take on the duties of an estate representative. An executor has a fiduciary duty to promote the best interest of the decedent’s (deceased person) estate according to their will. Violating this duty may lead to the executor’s removal and legal repercussions like lawsuits, fines, and even jail time.

The executor may be required to obtain a bond to fulfill their duties as the estate’s fiduciary since they are the person in a position of trust with respect to the decedent’s property. This bond guarantees that the executor will adhere to the law and fulfill their responsibility to distribute the estate’s assets.

Initiating the Probate Process

Probate is the legal process of distributing a person’s property and assets after death. Upon the decedent’s death, the executor of the estate can begin the probate process by scheduling an appointment with the Clerk of the Circuit Court in the proper jurisdiction. In addition to other information, the executor named in the will must bring the original will and a certified copy of the death certificate to the probate appointment.

Only after accepting appointment as executor and qualifying before the Clerk is the executor given authority to administer the decedent’s estate. Once qualified, the Clerk will issue Certificates of Qualification, also known as letters testamentary. This is the written document bearing the Court’s seal authorizing the executor to act on the estate’s behalf.

Duties of An Executor

In addition to other duties, once qualified as the estate’s executor, the executor will need to:

Send Notice of Probate

The executor will need to send a Notice of Probate to all beneficiaries and heirs within 30 days of being qualified as executor. The notice informs these individuals that probate has been opened and an executor appointed. The executor must file an affidavit with the Clerk within four months, indicating notice was given.

Open Estate Checking Account

When opening a checking account for the estate, the executor must provide the bank with a death certificate and a certificate of qualification. If the estate’s assets produce income, the executor will need to obtain a tax identification number for the estate from the Internal Revenue Service. 

The executor is responsible for transferring the contents of the decedent’s personal bank accounts to the estate checking account. The executor must keep thorough records of each bank account transaction. Upon conclusion of the probate process, funds will be distributed to heirs and used to pay off any estate debts, taxes, or other fees.

Locate Assets

An executor must locate and safeguard any estate assets that must pass through probate. This typically excludes any accounts that pass to beneficiaries directly, property the decedent had co-owned with a surviving spouse, and property in revocable living trusts.

Establish Date-of-Death Values

The executor must order appraisals of any real property or business assets of disputable value that belong to the estate. Valuing probate assets is indispensable, but non-probate assets may also require valuation if the estate owes estate taxes since a taxable estate includes both probate and non-probate assets.

File Inventory of Decedent’s Property and Assets

An inventory of the decedent’s property and assets must be filed with the Virginia Commissioner of Accounts within four months. Only assets that must be probated need to be included. If the estate is small, this requirement can sometimes be waived.

Prepare and File Final Income and Estate Tax Returns

The executor will need to handle any federal and state tax documentation on behalf of the decedent, including income tax returns, estate tax returns, inheritance taxes, and trust income taxes.

Pay Debts, Claims Against Estate, and Administrative Expenses

The executor must pay the estate administration expenses, such as appraisal, court, and attorney fees, using the estate checking account. If necessary, the executor may be required to sell estate assets to cover these costs before the conclusion of probate. In addition to satisfying any tax obligations, the executor must pay the deceased’s final bills and debts and any ongoing administrative costs and claims against the estate.

File Annual Accounting

These accountings inform the Court of the executor’s actions on behalf of the estate. The first accounting is due within 16 months and covers the first year of the estate. Subsequent accountings, if required, are due within four months of the end of the accounting period chosen by the executor but no later than 16 months after the last accounting.

Distribute Assets to Beneficiaries

After discharging all debts, fees, and taxes, the executor will distribute the estate balance to the beneficiaries. The distribution of assets happens after the probate process ends. It requires filing all the necessary documentation, such as a list of all probate assets with their values and an account of any estate taxes, debts, and other expenses the representative had paid.

How a Probate Lawyer Can Help Estate Executors

A probate attorney can help estate executors in Virginia:

• Identify, secure, and obtain appraisals for estate assets
• Collect life insurance policy proceeds
• Assist in discharging any debts and bills
• Prepare and file all probate court documents
• Resolve any estate or inheritance taxes
• Manage the estate account
• Manage all of the steps in the probate process, including those mentioned in this article.

PJI Law, PLC: Your Estate Administration Attorneys in Northern Virginia

At PJI Law, PLC, each client receives our complete dedication, personal attention, and courteous, white-glove service. To provide the best experience possible, our skilled team responds quickly to each client and employs cutting-edge technology. 

If you’ve been named an executor of someone’s estate and are looking for a Northern Virginia “probate attorney near me,” our team of probate attorneys in Fairfax, Virginia, is here to guide you through the complicated probate process. Call PJI Law, PLC today at (703) 865-6100 to schedule your consultation. You can also fill out our online form here.

Copyright © 2022. PJI Law, PLC. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

PJI Law, PLC
3900 Jermantown Rd, 2nd Floor
Fairfax, Virginia 22030
(703) 865-6100
https://pjibe.webteam.ai/