WHAT IN THE WORLD IS PROBATE?

Any person, unless penniless, at death owns property which he or she wishes to pass to specified individuals. However, a person typically also has creditors, who of course want to get paid.  Virginia has a vested interest in making sure that a deceased person’s (or decedent’s) property is distributed as he or she wishes, but Virginia also has a vested interest in making sure that a person’s creditors will be satisfied prior to distribution.  In order to make sure that a decedent’s creditors are satisfied and that the remaining assets, if any, are distributed in accordance with the decedent’s wishes, Virginia (along with the other states) has established a procedure referred to as “PROBATE.”

So what do I do?

The initial step in the probate process is the admission of the will to “probate” in the local courthouse. The clerk reviews the document purported to be a deceased person’s will, and if the clerk concludes that it was properly signed and witnessed as required by Virginia law, the document is accepted as the decedent’s last will testament and admitted to record.  As can be expected, the clerk also collects a PROBATE TAX (not an estate tax) based on the value of the decedent’s assets passing under the will.  An important point here is that, once recorded, a decedent’s will is open to inspection by the general public.

Next, someone must be appointed to “administer” the deceased person’s estate. This person is generally referred to as the executor – but can also be referred to as the administrator for decedents who fail to leave a will or fail to appoint an executor (we’ll refer to it her simply as the executor).  Generally, the executor is responsible for compiling and safeguarding the decedent’s assets, ascertaining the decedent’s liabilities and satisfying those that are appropriate, and distributing the remaining assets, if any, in accordance with the will and as permitted by Virginia’s probate procedures.

Estate Administration in Virginia:

Virginia’s role in the administration of a person’s estate does not end with the admission of the will to probate and the appointment of an executor. Instead, Virginia continues to oversee the administration of a person’s estate until the person’s assets have been distributed as directed in the will or as required by Virginia law.  To accomplish this task, Virginia has established the office of the commissioner of accounts.  The commissioner of accounts is usually a local practicing attorney who is appointed by the Court and charged with supervising the proper collection and distribution of a decedent’s assets.  To assist in this process, Virginia requires each executor to file with the commissioner an initial inventory of the estate, reflecting the identity and value of the assets owned by the person at death.  If satisfactory, the inventory is recorded by the commissioner and available for public inspection.  The executor must thereafter submit to the commissioner accountings reflecting the receipts of and disbursements from the estate.  The executor files these accountings on an annual basis until all parties are paid their proper share of the estate and the estate administration is completed.


We hope that the above discussion has brought to light many of the issues which must be addressed in the estate planning process. It is intended for informational purposes only and to assist a client in his or her general understanding of the estate planning process. We do not intend for this to be an exhaustive discussion of all issues involved.  Nor do we intend for this information to be a substitute for legal advice.  However, if you have any questions about any of the above information, or if you need additional assistance with your estate planning, please feel free to contact us.