What is Probate?

Probate is the court-supervised process of handling property (known as the estate) of a deceased person (the decedent). It may include probating a will, if a valid will exists, or it may be probate of an intestate estate (without a will). An Executor or Administrator may be appointed and qualified with the court to administer the estate.

Estate property (assets) may include real property and personal property. Real property assets are usually land or land with structures (such as a single family home). Personal property assets may include tangible property (such as household, jewelry, furniture, antiques, motor vehicles), bank or credit union accounts, retirement accounts, life insurance policies, stocks, bonds and other securities.

In both Virginia and Maryland probate must take place in the county or city of the decedent’s last legal residence. However, in Virginia, if the decedent was residing in a nursing home at the time of death, the estate would usually be probated in the county or city where he or she resided before admission to the nursing home.

In Virginia, the Probate or Fiduciary office in the Circuit Court will open a probate estate. The Commissioner of Accounts for each Circuit Court will supervise and review the inventory and accounts required.

In Maryland the Register of Wills office in the Circuit Court for each county or city jurisdiction oversees the administration of decedents’ estates.

When is probate required?
Probate is not always required to handle a decedent’s property. Examples of assets that do not require probate include: assets titled joint with right of survivorship with one or more other people; assets with payable on death or beneficiary designations and assets titled to the decedent’s living Trust. Only property owned solely in the name of the decedent with no beneficiary designated is subject to probate.

Here are some examples to help you distinguish probate property from non-probate property:

• If property is titled in joint names with right of survivorship between the decedent and one or more other persons, the surviving joint owners are beneficiaries to the property. This kind of property can be real estate, bank accounts, CDs, investment accounts, automobiles and other items. No probate is required.
• A bank account, certificate of deposit, investment account or savings bond may have a P.O.D. designation (payable on death). The person named as P.O.D. is the beneficiary. No probate is required.
• As a general “rule of thumb” if a bank, investment firm or other custodian of an asset advises you that an executor or administrator is required to collect the asset, then the asset is subject to probate.

How do I start the probate process?
To begin probate, you must appear before the clerk of the appropriate circuit court to present proof of death, usually a certified copy of the death certificate for the decedent or other acceptable alternate proof of death. If there is a valid will, you must present the original for admission to probate. In Virginia, if the will does not have a self-proving affidavit attached to it, you must “prove” the decedent’s signature. You can do this by bringing at least one of the witnesses who signed the will to appear before the clerk and testify under oath or by obtaining depositions from the witnesses to the will.

If there is no will, the laws of Virginia or Maryland determine the beneficiaries to the estate and prescribe all rules for administration.

What else do I need to open a probate estate?
List of Heirs at Law and Beneficiaries: Bring the names, addresses and ages of all the heirs-at-law and beneficiaries named in a Will to the clerk’s office at the time you open the probate estate. Heirs at law are the people who would inherit the estate if there is no Will. Heirs at law usually include a spouse, children or grandchildren. Different circumstances determine different heirs at law.

Virginia Probate Tax
The clerk of the court will collect a probate tax. All tangible and real property located in Virginia is subject to the tax, and all intangible property (bank accounts, certificates of deposit, stocks, bonds) located anywhere is subject to probate tax. The current tax rate in Virginia ranges from $1.00 to $1.33 per $1,000 value of assets, depending upon the jurisdiction.
Gather as much information as you can about the value of estate assets prior to opening the probate estate. Be prepared to pay the probate tax at the time you open the estate. However, do not over-estimate the value. Probate tax refunds are only given for overpayments exceeding $25.00. If the estate’s value turns out to be higher than you estimated, the Court will send you a tax bill for additional probate tax.

What do I do after I qualify?
In each jurisdiction in Virginia or Maryland, you will receive a set of forms and instructions from the clerk or Register of Wills. You will begin your duties by providing notice of the opening of the estate to all beneficiaries and heirs-at-law. You will be provided a list of notice and reporting requirements and deadlines for completing each. While both Virginia and Maryland require the filing of inventories and accounts, they have different requirements for other court-supervised tasks.

When is it best to get professional advice?
For each executor, administrator or trustee, the issues that require professional advice may be different. However, the following is a brief list of some administrative tasks and special situations that might best be handled with a professional’s advice:

• Determining if probate of a will or qualification is even necessary for the estate.
• Identifying heirs-at-law for intestate estates or for meeting notice requirements.
• Identifying assets, valuing assets, marshalling assets.
• Preparation of inventory and accounts.
• Preparation of income and estate tax returns.
• Evaluating and handling creditor claims.
• Insolvent estates (estates with debts that exceed the value of assets).
• Determining spousal and family rights, if any.
• Handling estate litigation or obtaining court guidance for certain issues.
• Proceedings for debts and demands hearings or distribution orders to protect the fiduciary from personal liability for unknown creditor claims.
• Determining proper distribution to beneficiaries or heirs and timing of distributions.

Where else might I get information about my jurisdiction?
Here are some links to some county court websites in Virginia and Maryland.

Virginia State Courts website (links to all Virginia circuit courts):
www.courts.state.va.us
Virginia Jurisdictions:
City of Alexandria -
www.courts.state.va.us/courts/circuit/Alexandria
Arlington County -
www.arlingtonva.us/Departments/ClerkofCircuitCourt/ClerkofCourtMain.aspx
Fairfax County -
www.fairfaxcounty.gov/courts/circuit
Loudoun County -
www.courts.state.va.us/courts/circuit/Loudoun
Prince William County -
www.pwcgov.org/default.aspx?topic=040017
Maryland State Courts website
http://www.courts.state.md.us/circuit/circuit.html
Maryland jurisdictions:
Montgomery County -
www.registers.state.md.us/county/mo/html/montgomery.html
Prince Georges County –
http://151.200.189.200/Government/JudicialBranch/wills.asp?h=20&s=30&n=70