Technically, probate is the process of proving a will and admitting it to record (recording it) in the Clerk’s Office. This is often the first step in administration of an estate followed by the appointment of an executor (aka personal representative). In the absence of a will, the process of estate administration is begun by appointing an estate administrator (aka personal representative). Frequently people refer to probate as the entire process of administering an estate.
Residence is where the decedent was last known to reside. This includes assisted living facilities. For persons residing in a nursing home/convalescent home pursuant to Virginia Code § 64.1-76 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.
Virginia has no separate probate court. Mostly, the Clerk of Circuit Court or a deputy clerk handles probate and the circuit court judge is not involved. However, any person interested in the will may appeal to the judge within six (6) months of the order of the clerk admitting a will to probate.
How is the value of an estate determined?
You can determine the value of an estate by adding all property (real and personal) that was in the decedent's name only at the time of his/her death. Do not include property held jointly with a right of survivorship 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. Include tangible personal property (e.g. clothing furniture and jewelry) as well as intangible assets (e.g. stocks and bonds and bank accounts). Estimate the fair market value of the assets as of the decedent's date of death. DO NOT DEDUCT debts owed, loans or mortgage amounts. Compute separate sub-totals for personal property and real property.
Additionally, qualification is generally not necessary to transfer a motor vehicle title. In these circumstances the will is probated (proved and recorded in the Will Books of the Circuit Court) and nothing further is required.
Other instances where formal qualification or administration may not be required is when there are joint accounts with right of survivorship in banks, saving institutions or credit unions.
Is probate necessary for estates that do not exceed $50,000 in value?
Pursuant to Virginia Code § 64.1-132.2
if an estate consists of personal assets (personal property not real property) that do not exceed $50,000.00, 60 days have passed since the date of death, the will has been recorded if there is a will, and no personal representative has qualified in any jurisdiction, a Small Estate Act Affidavit may be issued to any person as the designated successor to receive. An appointment with the Probate Division is necessary for this procedure. A certified copy of the death certificate is also required.
Pursuant to Virginia Code § 64.1-132.3 any person having possession of a small asset valued at $15,000 or less may pay or deliver the small asset to any successor.
What happens with real estate?
Possession of real estate may impact the need for qualification as well as the ability to use the Small Estate Act Affidavit. You are encouraged to consult an attorney.
When there is a will, the named executor will make an appointment 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 that 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 state 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 the probate jurisdiction is Prince William/Manassas/Manassas Park and real estate is solely held by the deceased in another state, an exemplified (tripled-sealed) copy of the probate documents is prepared by the Prince William Clerk’s Office for recording in the other state.
For an intestate (without a will) estate where real estate is the only solely held asset, a heir or other interested person would record a “Real Estate Affidavit” (obtained from the Probate Office) and pay the proper recording fee. You would need to bring a certified copy of the death certificate; a list of the names addresses and ages of the heirs at law; and the legal description of the real property to the appointment.
What constitutes a valid will?
In order to probate a will, the Clerk must have the original will. A copy is not acceptable. When a will is presented for probate, the Clerk will usually determine its validity. If there is an unresolved issue, then a judge will make the determination.
The first thing the Clerk will do is determine if the will has a “self-proving affidavit” (see Virginia Code § 64.2-452
). This is a writing that follows the signatures of the decedent and witnesses to the will itself in which after a notary public puts them under oath, the decedent and the witnesses make certain statements about the execution of the will and then the decedent, the witnesses and the notary sign the writing. If a will has a self-proving affidavit, it is not necessary for any witnesses to come to the Clerk’s Office.
If the will is not self-proving, then you must contact all of the witnesses. You must bring at least one of the will's witnesses with you or a Witness Deposition Form
If a will is written entirely in the handwriting of the decedent, then no witnesses' signatures on the will are required, but you must bring two persons with you to the Clerk’s Office who can testify (i) that they are familiar with the decedent's writing and (ii) that the writing on the will is that of the decedent. These two persons who will testify that a will which is not witnessed is in the decedent’s handwriting must be disinterested persons, i.e. not relatives. beneficiaries or relatives of beneficiaries. If a witness to the will or to the decedent’s handwriting and signature is not a resident of Virginia or is unable to come to the courthouse because of sickness, age, legal confinement or other cause that witness’ testimony may be given in a Witness Deposition Form
before a notary public.
Who is appointed executor of the estate?
The will should name someone as Executor. The Clerk can only appoint this person to handle the estate. If the named Executor is deceased or does not wish to qualify, the duty would fall to the next named Executor. If the will does not name anyone else, the Clerk has the authority to appoint a personal representative. If the named Executor does not wish to qualify, he or she must sign an affidavit (Waiver Qualification Form
) before a Notary giving up the right to qualify.
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 a proposed court order for the judge’s signature. A filing fee is required. The Circuit Court motions day is Friday. These documents with the filing fee must be filed at least two weeks prior to the hearing date in room 314 Civil Section. A civil action case file will be opened. Also, reference the fiduciary case number on the documents if applicable.
Who is appointed administrator if the person dies intestate (without a will)?
If someone dies without a will, the legal heirs have the first right to qualify. That means the Clerk cannot appoint one heir without all the other heirs agreeing in writing for the first 30 days after death. After 30 days the Clerk can appoint any heir without agreement of the other heirs. After 60 days the Clerk may use discretion to appoint anyone requesting it without agreement of the heirs. (Virginia Code § 64.2-502
Qualifying as an administrator does not automatically make one a beneficiary to the decedent’s estate. The beneficiaries in an intestate estate are the legal heirs at law. Heirs at law are set forth by statute. (See Virginia Code § 64.2-200
|Virginia Code § 64.1-1. Course of descents generally.
When any person having title to any real estate of inheritance shall die intestate as to such estate it shall descend and pass in parcenary to such of his kindred male and female in the following course:
First. To the surviving spouse of the intestate unless the intestate is survived by children or their descendants one or more of whom are not children or their descendants of the surviving spouse in which case two-thirds of such estate shall pass to all the intestate's children and their descendants and the remaining one-third of such estate shall pass to the intestate's surviving spouse.
Second. If there be no surviving spouse then the whole shall go to all the intestate's children and their descendants.
Third. If there be none such then to his or her father and mother or the survivor.
Fourth. If there be none such then to his or her brothers and sisters and their descendants.
Fifth. If there be none such then one moiety shall go to the paternal the other to the maternal kindred of the intestate in the following course:
Sixth. First to the grandfather and grandmother or the survivor.
Seventh. If there be none then to the uncles and aunts and their descendants.
Eighth. If there be none such then to the great grandfathers or great grandfather and great grandmothers or great grandmother.
Ninth. If there be none then to the brothers and sisters of the grandfathers and grandmothers and their descendants.
Tenth. And so on in other cases without end passing to the nearest lineal ancestors and the descendants of such ancestors.
Eleventh. If there be no paternal kindred the whole shall go to the maternal kindred; and if there be no maternal kindred the whole shall go to the paternal kindred. If there be neither maternal nor paternal kindred the whole shall go to the kindred of the husband or wife in the like course as if such husband or wife had died entitled to the estate.
What happens if a named executor or administrator is an out-of-state resident?
A named executor or administrator residing outside of Virginia who wishes to be appointed as executor or administrator must have a Virginia resident be designated as a resident agent. The resident agent must appear in person at the appointment or provide a notarized statement agreeing to serve as a resident agent. Virginia Code § 26-59
governs which procedure to follow. In addition this section requires an out-of-state resident appointed as a personal representative to be bonded with surety.
The executor or administrator must:
- ascertain and take possession of the deceased person’s property over which the executor or administrator has responsibility or control.
- determine the liabilities (debts) of the estate and determine the value of the estate over which the fiduciary does not have control (for tax accounting reasons).
- see to the payment of debts of the deceased (Virginia Code § 64.2-528) and the estate (including taxes) and the sale or distribution of property of the estate in accordance with the dictates of the will and the law of Virginia.
- give written notice of qualification or probate to the heirs and beneficiaries of the estate or those who would have been the heirs within 30 days after qualification or probate.
- file an Affidavit of Notice with the Clerk’s Office within four (4) months of qualification regardless of whether or not notification is given e.g. executor/administrator cannot locate an heir or beneficiary.
- file a complete inventory of the estate within four (4) months of qualification with the Commissioner of Accounts. The Commissioner of Accounts is a local person (generally an attorney) appointed by the Circuit Court to oversee and ensure that estates are properly handled.
- pay all probate taxes due to the Clerk of the Circuit Court.
- file income inheritance or estate taxes with the federal or state government.
- make an accounting (generally a list of all assets of the estate, all distributions and all assets on hand) on a yearly basis until a final accounting can be made. Often a first and final accounting can be made at the conclusion of the first year following qualification. A Statement in Lieu of Settlement of Account may be filed with the Commissioner of Accounts in lieu of a full accounting if the personal representative is also the only distributee or if all children are co-qualified. Must be filed after 6 months but before 16 months.
- immediately report any change of address or telephone number to the Commissioner of Accounts.
Forms are given at the probate appointment to meet these requirements.
Does the personal representative need to set up a separate estate bank account?
Yes. The representative cannot use his or her own bank account. Once a personal representative is appointed and given a qualification certificate by the Clerk, the representative will need to obtain an EIN (employer identification number) for the estate. After obtaining it, the personal representative can go to a bank in Virginia and open a separate estate interest bearing checking account. It should be opened up in the name of “Estate of the Decedent personal representative’s name & title.” The representative must be able to easily obtain proof of canceled checks (showing both sides of check) to provide to Commissioner of Accounts.
What needs to be done if the estate may be insolvent?
If the estate is insolvent, you must pay the debts in a certain statutory order of priority. If you pay debts out of order, you may be personally liable for these debts of an insolvent estate. See § 64.2-528
of the Virginia Code for this information and/or consult an attorney for legal advice. An insolvent estate exists where the debts of the decedent and the estate are greater than the assets of the decedent and the estate. Be very careful in handling an insolvent estate.
A claim against an estate can be filed if a personal representative (Executor or Administrator) has been appointed and qualified and the estate has been assigned to a Commissioner of Accounts. The claimant would need to contact the Commissioner to find out the requirements for filing a claim. The fee for filing a claim is $50.00.
What taxes are there to be paid
a) At the time of filing the will or grant of administration, the probate tax must be paid. ($1.00 state probate tax per $1000.00 value of the estate where the estate value exceeds $15,000.00).
b) State taxes (consult Virginia Department of Taxation
1) The final income tax return of the deceased must be filed.
2) The final personal property tax return of the deceased must be filed.
3) An income tax return for the estate (income coming to the estate after death) must be filed if there is sufficient income.
4) A Virginia estate tax return must be filed if required (generally only required if a federal estate tax return is necessary.
c) Federal taxes (consult the IRS
Is an executor or administrator compensated?
The administration of an estate generally requires a fair amount of time and energy. Compensation is allowed. The Commissioner of Accounts must approve the compensation and generally this amount is limited to 5% of the assets handled.
What is bond? What is surety?
The person appointed as an executor or administrator must take an oath that he or she will faithfully perform the duties required and further must give bond before entering upon his/her duties. A bond is a certificate or evidence of a debt with a sum fixed (value of the estate) as a penalty which contains a written agreement binding the parties to pay the penalty. It contains a condition however that the payment of the penalty may be avoided by the performance by one or more of the parties of certain acts.
Bond can be unsecured. If the decedent’s will states that the personal representative shall serve “without bond”, "requiring no security” or “waiving bond” then security is not required. For other circumstances see Virginia Code §§ 64.2-505, 64.2-1411
If neither the will nor Virginia law waive security on a bond surety, it will need to be posted on the bond. Surety has the effect of insuring the bond should it become payable. Most often surety or security is obtained through a bonding company. The company must have the authority to execute bonds in this Court. A premium proportionate to the value of the estate is paid to the bonding company.
If the probate assets are more than $15,000.00 and the person is a non-resident or if there are other heirs, they will need to post a surety bond. A surety bond may also be required if the person qualifying is a Virginia resident, but there is a will which does not waive the need for the surety bond or if there is no will and the person qualifying is not the sole heir. If a surety bond is needed, arrangements will need to be made with a bonding company
before coming in to probate the estate. A bonding agent would attend the probate meeting.
Real estate is not included in the bond for an administrator because an administrator does not have the power to sell real estate. If surety is waived, take amount of personal property and double to set bond amount. If surety is required, bond amount should be at least equal to amount of personal property plus ten (10) percent—do not double.
Can the clerk’s office help someone write a will?
No. Court personnel are prohibited by state law from giving you legal advice or assistance. You may consult an attorney or you may prepare your own will. The Law Library located in lower level of the Judicial Center is available to the public for the purpose of doing legal research. View the Law Library
Web page or call 703-792-6262 for hours of operation or additional information.
For deaths occurring in the County of Prince William or the Cities of Manassas or Manassas Park within the last five years, contact the Prince William Health Department at 703-792-7327 (8470 Kao Circle, Manassas, VA 20110).
The Clerk’s Office is prohibited by law from making certified copies of death certificates.
Whom does one contact about estate taxes?
Contact the Virginia Department of Taxation at 804-367-8031 or visit its website at www.tax.virginia.gov.
For questions pertaining to local real estate taxes, contact Prince William County Department of Tax Administration at 703-792-6710 or the City of Manassas Commissioner of Revenue 703-257-8222 or the City of Manassas Park Commissioner of Revenue 703-335-8825. For federal estate tax questions contact the Internal Revenue Service.
Please note: Laws change. Make sure to consult with your attorney for the most up-to-date information.
Please notify the Circuit Court Clerk's Office by email if you find that any of the links on this page do not work.