As will contest attorneys, we are often approached by clients who want to know whether all wills have to be probated.
The short answer is, it depends.
A variety of factors and issues may arise in the wake of a loved one’s death. Even seemingly solid estate plans may fall apart due to unforeseen circumstances.
Still, going through probate doesn’t have to be a long and painful process. At Obenshain Law Group, we’re here to break down everything you need to know about probating a will in Virginia—including if and when a will must be probated.
What Is Probate?
Probate is the process of recording a will in the office of the appropriate court. The whole point is to ensure that:
The decedent’s debts are paid
The decedent’s assets are distributed according to their wishes
Once a will is filed, proved, and recorded, the court will assume a role in supervising the administration of an estate. Its goal is to make sure that the wishes of the maker of the will are carried out. The person whose actions will be supervised in carrying out those wishes is called the executor.
Note that there may be cases where the executor does not file a will with the court. It is important to know whether the law requires such wills to be filed and recorded.
VA Wills and Estate Law: When You Need to Probate a Will
Unfortunately, Virginia’s probate rules are rather complicated, which is why it’s in your best interest to have a skilled attorney work with you regarding your loved one’s last will and testament. As mentioned, whether a will needs to go through probate will depend on several factors.
Essentially, a will should be filed or go through probate if:
The decedent had a will and owned real property solely in their name
The decedent had a will and owned personal property solely in their name
Exceptions for Probating a Will in Virginia
There are some exceptions to the above. For instance, probate may be avoided if:
- The decedent’s real estate will pass by survivorship under the terms of the deed
- The decedent has named beneficiaries to appropriate accounts like bank, retirement, investment, or other financial accounts
- The decedent has created POD (pay on death) or TOD (transfer on death) accounts (similar to designation of beneficiaries)
- The decedent’s personal property is de minimis and can be transferred to the beneficiaries under the small estates procedure
- Property has been transferred or gifted before death
Even if a will is not probated, that does not necessarily mean that an interested party (usually defined as a beneficiary or an heir at law) cannot obtain a copy of it, as the fraudulent concealment or destruction of a will is a felony in Virginia.
Guiding You Through Probate
Probate can be a complex and confusing process for those who are not well versed in the legal system. That’s where we come in.
We can also help you save your loved ones from having to go through probate by drawing up affordable wills and trusts.
If you have a valid reason for challenging your loved one’s will, our lawyers may be able to help you seek the justice you deserve. Give us a call at (540) 318-7360 or contact Obenshain Law Group online.