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Probate Process in Fairfax

Searching for an attorney to assist you with 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.

They become responsible for managing the affairs of the decedent and making sure that the estate is properly distributed to the beneficiaries. At Hale Ball Carlson Baumgartner Murphy, PLC, we are determined to steer you through the probate process and making sure that you are fully prepared to do so.

Probate Laws in Virginia

In Virginia, 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, and antiques
  • Motor vehicles
  • Bank or credit union accounts
  • Retirement accounts
  • Life insurance policies
  • Stocks, bonds and other securities

No matter what type of property is included in an estate, a Fairfax probate lawyer can assist you as an executor or administrator that becomes responsible for settling the estate.

In Virginia probate must take place in the county or city of the decedent's last legal residence. 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.

When is probate required?

Probate is not always required to handle a decedent's property. Only property owned solely in the name of the decedent with no beneficiary designated is subject to probate. We can help you determine the difference between probate and non-probate property.

Examples to help you distinguish probate property from non-probate property:

  • Joint Ownership: 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.
  • Payable on Death Designations: 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.
  • Required Assets: 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.

Starting 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. A probate lawyer in Fairfax can appropriately guide you through the legal processes involved.

Seeking Professional Advice

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; and
  • Determining proper distribution to beneficiaries or heirs and timing of distributions.

Discuss Your Options with a Probate Attorney

The probate process can feel overwhelming and frustrating at times. From collecting the assets of the decedent to making sure that they are properly distributed to the beneficiaries, it is important to have experienced legal counsel on your side.

Call a Fairfax probate lawyer to effectively begin your Virginia probate matters!