Virginia Probate: Who is involved in the process?
Find out more about the various officials that are involved in the probate process and what their roles are.
Virginia probate is a complicated, lengthy process depending on the type of estate that you are dealing with. However, there are several people who will likely be involved throughout the probate process. If you have been appointed as administrator or executor, you need to be familiar with these people and their role.
So who are these people, and what do they do?
Commissioner of Accounts
The Commissioner of Accounts (“COA”) is an individual that is appointed to an estate to make sure that all the financial aspects of the estate are treated properly. The COA is typically an attorney, and the COA has significant power in probate proceedings. For example, the COA can demand inventories and accountings of an estate. The COA also has the ability to prolong proceedings and bring independent actions against an administrator or an executor if they have failed to properly perform their duties.
Therefore, It is important to listen to the COA when you are probating an estate. They can be an invaluable asset in getting the estate resolved. However, they can also be a powerful enemy if you have failed to properly perform your duties.
Probate Clerk
Each court in Virginia has a number of clerks. These clerks are there to make sure that the appropriate documentation is filed with the court in order for the case to start. There are several different types of clerks including land records clerks and probate clerks. A probate clerk’s job is to sit down with the person who intends to administer the estate and to explain what documents are necessary in order to begin.
It is important to work with the probate clerk in your local area to determine what local rules there may be. Failure to adhere to these rules may prolong the administration of the estate.
Creditors
An estate may also have several people that money is owed to. These are creditors. A creditor representative can file claims against an estate. It is important to work with the creditor representative to determine how much is owed on the debt and how that debt will be treated during probate.
Bonding Company
Sometimes, you may be required to post a bond if the will wasn’t properly drafted. A bond company may be involved in helping you post a bond with the court to cover the liability of probating the estate. It is important to work with your bond company representative to determine how much of a bond is required, and how that bond is treated.
Why you need a probate lawyer.
With all these moving parts, it is easy to get lost in probate proceedings. A lawyer can help you navigate interacting with these various representatives and to make sure you do your job properly. Failure to properly administer an estate could subject you to personal liability. If you are considering qualifying to probate an estate, seek legal help.
Virginia Probate: Intestate v. Testate
What is the difference between intestate and testate estates?
If a family member of yours has recently passed away or if you are planning for your future, there are a lot of different options available for passing property on to heirs. At a bare minimum, you need to be aware of the types of planning options that are available to you. The first distinction you need to be familiar with is what an estate is, and what the different types of estates are.
Many jurisdictions, including Virginia, distinguish between several different types of estates. For the purposes of this article, we will be looking at the distinction between “testate”’ and “intestate.”
What does "intestate" mean?
An estate is considered to be intestate when you have failed to create some kind of document which tells your state how you wish for your assets to be distributed. Common examples include wills and trusts. If you do not have a will or a trust, the law of the state where you last resided generally takes control.
In Virginia, these “intestacy rules” determine which of your heirs get which property. Virginia law states that, if you do not have a will and you do not have children from a different marriage, your spouse will take all of the property. However, if you have children from another marriage, those children are entitled to two-thirds (⅔) of your property, and your spouse is entitled to one-third (⅓) of your property.
In the event that your spouse has predeceased you, and all of your children are from that marriage, then your property will be split up into as many equal shares as there are children. For example, if you have three children, each child will get one-third (⅓) of your property. If one of your children predeceases you, that child’s share will then be split up into equal shares based upon the number of children that child had.
There are more rules than this, and this is just a simple example of how Virginia treats property if you do not have a will. If there is specific property that you wish to give to specific people, you must have a will or some other estate planning document.
What does "testate" mean?
Testate means you have at least some form of estate planning document, primarily a will. The purpose of the will is to direct your state on how you wish your property to be treated. There are many different types of wills. I will discussed the various types of wills in a later post.
Why you need a lawyer.
A lawyer is important for several reasons if you have a loved one who is recently deceased or if you are planning for your own future. A lawyer can help you navigate the complex probate process and determine what steps are best taken in order to distribute the property and minimize tax liability. Furthermore, a lawyer can help you prepare for the future and determine which type of estate planning document is best for you.