First, it is important to define probate. It is the process of recording a will in the office of the appropriate court. Once a will is filed, proved, and recorded, the court will assume a role in supervising the administration of an estate with the goal of ensuring that the wishes of the maker of the will are carried out. The person or persons whose actions will be supervised in carrying out those wishes is the executor. There may be cases where the executor does not file a will with the court and it is important to know whether the law requires it to be filed and recorded.
The short answer is—”it depends.” The purpose of probate is to ensure that a decedent’s debts are paid and assets are distributed to the proper beneficiaries according to the deceased individual’s wishes.
Here’s what you need to know:
Whether a will needs to go through probate will depend on several factors. 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.
Essentially, a will should be filed, or go through probate, if:
- The decedent had a will and owned real property solely in his or her name
- The decedent had a will and owned personal property solely in his or her name
However, there are exceptions and 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.
We’re Here to Help
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. Our team is highly experienced in this area of the law and has helped many others in similar situations. Let us see if we can help you, too.
If you have a valid reason for challenging your loved one’s will, our lawyers at Obenshain Law Group may be able to help you seek the justice you deserve. Give us a call at (540) 318-7360 or fill out an online contact form.