What To Know About Avoiding Probate in Virginia


You may have heard horror stories about probate or potentially were appointed as an executor in someone else’s estate and learned firsthand the difficulties of closing out someone’s estate. Working with a qualified Virginia Beach estate planning lawyer, you may learn that there are many ways to avoid probate. When you pass away, the state must handle the payment of your debts and the distribution of your remaining assets in a process known as probate.

Avoiding probate refers to removing as many assets as possible, if not all of them out of your probate estate, such that when your executor files Your will in Virginia, the assets will pass to heirs in other ways without the time, expense and possible frustration of probate. One way to avoid probate in Virginia is to establish and fund a trust. If all of your assets are placed inside a trust, they will pass through the trust instead of undergoing probate.

Another way to avoid probate on particular assets is to use payable on death, transfer on death or beneficiary designations to bank accounts and other assets. These designations, when properly filed, allow particular assets you’ve named to pass directly on to your chosen heirs instead of going through the probate process. If you have a very small estate, such as when valued at less than $15,000, it may not be required to go through the probate process at all. It’s a good idea to sit down with a Virginia Beach estate planning attorney to discuss all of your options and which assets in your estate may currently be subjected to probate. This will allow you to make informed decisions about your future planning.

Schedule a meeting with our Virginia estate planning attorney today to start your own process.

Do Real Estate Assets Go Through Probate?

If you own any kind of real estate, including a home, you should include these in your will because there is a high chance they will pass through probate. There are some options for keeping real estate outside of your probated estate, such as transfer on death deeds, joint ownership, or trusts. Whether you own primary property or vacation/rental property in Virginia Beach, you need a plan for it.

It is usually less avoidable for valuable possessions. When determining how your beneficiaries could be affected by the transfer of assets, such as real estate, first think about the number of beneficiaries that you intend to name. If you are naming multiple people as beneficiaries to a piece of real estate, you may need to think about titling complications such as titling each of those to beneficiaries separately or having the property sold and the proceeds divided.

Do not forget to think about potential tax and financial implications of passing things on in this way either. Your beneficiaries may have to pay capital gains taxes as part of a possible sale. You can also use tools such as a qualified personal residence trust to protect real estate.

This pulls the property outside of your probate estate and helps to avoid federal estate taxes, which will also allow you to continue to live in the residence for a predetermined period of time. You must outlive the term of the trust, however, to see the tax benefits. You can also name a joint owner on the property now so that it passes directly to the second owner which is allowed via a transfer on death deed.

The property then passes immediately to that person who is usually a spouse outside of probate relatively quickly. Talk to a Virginia Beach, VA estate planning attorney to discuss how to handle planning for your estate.



How to Understand the Role of a Probate Judge in an Estate

Probate judges are important individuals when a contest or dispute emerges in the processing of an estate. Probate judges are state judicial officials and civil court judges who oversee those cases that enter the probate court system within their state.

This can include concerns related to competency or guardianship in addition to the estate of deceased individuals. In some states adoptions are covered through this court as well. In certain states these are called surrogates courts and not every county or state will have probate courts.

A probate judge’s role in the administration of a loved one’s estate will vary based on whether or not the deceased left a last will and testament. If they did not, it is said that the decedent died intestate, meaning that state rules will determine who will receive the property and in what order. The exact duties of the probate judge in the administration of the case will also depend on whether or not everyone gets along and is on the same page about the validity of a will.

When a will contest is filed, a judge can also be involved in the management of that legal case, ensuring that all evidence and issues are properly heard in the court. As someone creating your own estate planning document, you should not need to interact with a probate judge at this point but your heirs may come into contact with this party in the future. Speak with a VA Beach estate planning lawyer immediately to get help.


Four Ways to Simplify or Avoid Probate

Given that probate can be expensive as well as a drawn out process, it’s no surprise that many people turn to estate planning strategies to avoid or simplify probate. Although in many cases probate can be streamlined, it might be best to think about strategies to avoid probate where you can.

There are several different strategies to do this and you might be able to accomplish additional estate planning goals by working directly with an estate planning lawyer in your immediate area.

The first way to address probate is to transfer property to a trust instead. This involves the creation of a trust document and the funding of that property into the trust. The second way to avoid probate is to use payable on death registrations, which are associated with any transfer on death accounts.

Most banks, savings and loans, brokerage firms, and credit unions will give you the ability to name a beneficiary for this. Another way to remove assets from your taxable or probate estate is to make tax free gifts. In 2021, for example, you are eligible to give your heirs up to $15,000 per person every year without a gift tax penalty.

Finally, there are many assets that automatically pass outside of the probate process. These are typically those associated with beneficiary designation forms, such as retirement accounts and annuity contracts, and life insurance policies. For more information about how to avoid probate with your own estate, speak with a lawyer who has extensive experience in this field.

Need help with Virginia Beach estate planning? Now is a great time to schedule a call.

Is There Any Property That Should Be Left Out of a Will?

Not all property will be passed on as a result of what’s listed in your last will and testament. You’ll need to consider including and excluding the right assets by partnering with a trusted estate planning lawyer to help you.

There are several different kinds of property that you should expressly leave out of the last will because it must be designated or managed in another way. These assets don’t go through the formal Virginia probate process. This includes:

  • Transfer on death property such as vehicles, real estate, bonds and stocks, which will pass automatically to a named beneficiary if you have taken that step.
  • Annuity proceeds or life insurance policies, since the individual listed as your beneficiary will automatically receive these payments.
  • Proceeds from retirement plans, 401(k)s, IRAs and pensions, which will pass directly to the beneficiary named on forms.
  • Pay on death bank accounts.
  • Property held inside a living trust.
  • Property held with a right of survivorship.

The general answer for what goes into your will is everything outside of these expressly named assets. If you are curious about what to include in your overall estate planning inventory and what other documents besides a will you might need to support you, set aside time to speak with a trusted estate planning lawyer. Our Virginia Beach law office can help you keep everything organized when it comes to your estate plan and the assets inside.

Do I Really Need to Be Concerned About Probate?

You might have heard other people mention probate and their desire in engaging with the right estate planning attorney to avoid it. Probate might also be referred to as estate administration and references the different types of tasks that must be done in order to close out your estate.

A probate case can be required if the decedent, also known as the person who passed away, did so without a will. In these situations, an executor or personal representative must be appointed and handle the affairs and act in accordance with management of closing out the estate.

With estate planning there are many different ways that you can approach your individual strategies to decide what is most appropriate for your loved ones and your wishes. Having a trusted estate planning lawyer to guide you through this will assist you in deciding whether or not avoidance of probate is right for you.

There are five primary ways that you can pass on your property and these include selling the property while you’re still alive, making gifts during your life, creating a revocable living trust so that you can update, amend or cancel the trust later, using beneficiary forms such as those provided by a life insurance policy or elsewhere and joint property ownership.

A combination of some of these strategies might be used to help you accomplish your estate planning goals.       

A Virginia Beach estate planning attorney is there for you from day one when you need an estate plan and when you need a plan that evolves with you. At our Virginia Beach estate planning law office, we work with you to create the customized plan you need.



When Does Probate Start in Virginia?

Losing a loved one presents many questions, challenges, and tasks that all must be addressed within a relatively quick timeframe after the loved one passes. One of these necessary tasks is opening the estate in probate. Probate can start shortly after the loved one passes away, ideally within one week after the deceased has passed.

This process refers to the formal proving and recording of the will in which it is determined that this document is valid as the final testament of the deceased. There is no distinct probate court in Virginia.

Instead, the will is managed through the circuit court for the region in which the deceased person lived at the time of their death. For loved ones, this might mean travel into another area of Virginia if that loved one intends to probate the will and estate. In most cases with a will, the person appointed for probate administration will be named in that document.

To probate a will or to qualify on an estate, you’ll need to take the original will to the circuit court office. It’s a good idea to set up an appointment in advance if you can because the court might give you some forms to complete prior to the appointment.

Before coming to this meeting, make sure you’re aware of all the assets owned by the deceased party. If the deceased made an inventory of their assets prior to passing away, this makes it easier for the person starting probate to have an accurate snapshot for the estate.

In addition, ensure that a copy of the death certificate is included with any provided forms and the asset inventory.

Are you ready to talk through your options with a Virginia estate planning lawyer? Your attorney can help you name the party who will initiate probate when you pass away, making things easier for your loved ones.

How Do Wills Get Probated in Virginia?

The county in which the decedent passed away is the primary place that the paperwork will be filed to probate a will. The probate process is handled by the circuit court in that county.

Probate is typically required in Virginia when the estate’s assets total more than $5,000, so streamline procedures might be available for those with small estates. The first step in probating a Virginia estate is to contact the circuit court clerk in the appropriate county and schedule an appointment to meet him or her.

A certified copy of the death certificate and the original will should be brought with these. The second step is to take an oath of office as an executor of an estate and post a bond. The bond has to equal the value of the estate to ensure against any wrongdoing if the executor is not the only beneficiary in the will.

The third step is to send written notice to all heirs and beneficiaries and then to secure the testator’s property and gather all assets. The next stage of the process is to determine who the testator owed money to and making those payments prior to distributing the remaining assets to beneficiaries of that will.

Some executors might find this process overwhelming, especially if they were also closed to the deceased. Going through grief and the formal steps of estate administration is a tall order for anyone. It’s one of the reasons why many executors choose to partner with an attorney to help guide them through the process. If you’re just now naming your executor, make sure you consider the person’s interest and ability in serving in such a role. Your Virginia Beach estate planning lawyer can help.

How Long Does Probate Take in Virginia?

In Virginia probate is the process of proving before the appropriate court, that any document submitted as belonging to the decedent are legally valid and genuine.

Typically the executor that is appointed in your will presents this document to the clerk of the circuit court in the county or city in which you lived at the time you passed away.

Most people consider using estate planning as a method for avoiding probate in Virginia. Probate can add confusion and time to the closing out of your estate, and you might be more interested in being able to pass on your assets in a timely fashion.

The process of probate can be extremely complicated. This is especially true when one or more parties attempts to contest the will. The executor appointed to probate your estate has a big responsibility to gather all materials related to your estate and to begin filing necessary paperwork and tax returns after you pass away. There is no general answer for how long probate takes in the Commonwealth of Virginia.

The complexity and size of the estate will dictate whether it takes longer than usual. An executor is responsible for filing an inventory of assets no later than four months from the date that they qualified as an executor and an accounting typically needs to be filed within 16 months from the qualification date.

Often administration of probate takes as long as it requires the executor to wind up the estate, pay out debts and distribute remaining assets. However, this process can be extended based on challenges to the will, trusts or other estate planning documents. Need a phone call with a Virginia estate planning attorney? Reach out today.



Irrevocable Trust Could Have Saved Fuss Over Novelist’s Estate

The late Tom Clancy’s novels showed he had a remarkable grasp of military strategy.

His muddled estate shows he did not bring the same kind of acumen to his own personal financial affairs, according to a recent article on the website insurancenewsnet.com.
Clancy passed away in Baltimore on Oct. 1, 2013. He was 66. Even after his death, the writer’s estate continued producing bestselling books and video games.
It also produced a great deal of rancor among his survivors, some of which could have been avoided by better estate planning, according to the article.
“Less than a year after Clancy passed away, a heated battle over his estate unfolded in a Maryland probate court,” states the story. “The estate, which is estimated to be worth $83 million and could gain even greater value as Clancy’s works continue to be produced and sold, is being contested by Clancy’s widow and his adult children who were born to his former first wife. Among the probate issues being deliberated in court, there’s a monetary amount adding up to $18 million in state and federal taxes, which Clancy’s widow is petitioning to transfer over to the late author’s four adult children.
“Furthermore, The Wall Street Journal reported on the existence of a family trust set up by Clancy to leave his widow about 66 percent of his estate. However, Clancy’s widow claims that the wrongful execution of the estate caused a miscalculation that called for $6 million in taxes assigned to the family trust. There also appears to be will left by Clancy as well as a codicil executed a few months before the author passed away. Apparently, Clancy’s widow also sought to replace the executor of estate, who in Maryland court is known as a personal representative, since the current attorney serving in that capacity wishes to spread the tax burden equally amongst all heirs.”
“It seems as if Tom Clancy did not plan his estate as carefully as the highly organized military operatives in his novels,” Rocco Beatrice, Managing Director of Estate Street Planners, LLC, a financial planning firm focusing on asset protection, wealth management and estate planning, was quoted as saying. “It appears that Clancy left a will that created separate trusts for his widow and his four children from his first marriage, and the presence of a codicil suggests that he may have changed his mind at one point. With this in mind, it is not too surprising to learn that the Clancy estate is now going through probate.
“The fact that there is probate battle over estate taxation tells us that Clancy did not use an irrevocable trust, which could have prevented the current courtroom fight and the unwelcome media attention into his family’s finances.”