Written by Wilson Stoyanoff, PLC

The most significant part of estate administration is the probate process. Probate is the process of administering your estate through the court system after you die. It is set up to pay the debts you owe and distribute the remaining assets to your beneficiaries. In Virginia, probate is handled in the circuit court of the county or city where you last lived.

During probate, a personal representative is appointed by the court. This will be an executor (if you die with a will) or administrator (if you don’t have a will). Notice of probate will then be filed, your property inventories, your debts paid and your remaining assets distributed.

Beneficiaries must be patient. Distributions from the probate estate cannot be compelled until six months after the appointment of the representative. An accounting must be filed by your personal representative no later than 16 months after appointment. Typically probate takes 9 months to two years to complete. If your will is contested, this process could take years to resolve.

In addition to probate filing fees, your personal representative is entitled to reasonable compensation for the administration of your estate, to be approved by the court. Under Virginia’s guidelines, the fees are calculated on a sliding scale, starting at 5% of the first $400,000. All of this is a matter of public record, available to anyone who is interested.

Not all of your assets are included in the probate process. Assets that pass by operation of law, rather than via your will are called non-probate assets. Non-probate assets include property owned as joint tenants with right of survivorship (typically real estate, but often including joint bank accounts or brokerage accounts). In Virginia, married couples can own property as tenants by the entireties. This form of ownership has the advantage of survivorship and in addition, the creditors of one spouse cannot reach this property. In either case, on death of one tenant (owner), the survivor owns these assets outright.

Other non-probate assets include life insurance, annuities and retirement accounts such as 401(k) and IRA plans, where you name a beneficiary in the contract. Other financial assets may be designated as “pay on death” or “transfer on death,” and will also pass outside of probate.

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Written by Andrew Stratton

There is a wide variety of legal specializations that lawyers may choose to focus on including divorce, bankruptcy, criminal proceedings and probate law. A probate attorney is one specialty that many people don’t thoroughly understand. It isn’t as dramatic or glamorous as some of the high profile specialties, but it is an important one, indeed.

Probate is a process of sorting out the financial estate of a person who has died. A probate attorney has the important task of making certain that all claims and divisions regarding the deceased person’s property are done fairly and according to the law. When a person has left a will, there may be questions about validity and proper distribution.

Many times a will includes the appointing of a representative, called an executor, who will help in carrying out the wishes of the deceased. The executor is often chosen because he or she is a trusted family member or business associate.

This law is a complicated component of the U.S. justice system. It is often fraught with emotional upheaval with family members and friends who may already be in an anxious state due to the loss of their loved one.

During this process, creditors will be notified. Legal notices in newspapers and the like are required to be published for certain lengths of time in order for all money owed to be paid out before the remaining assets are divided up between the heirs. At times, real estate property may be willed directly to individuals. In other cases, there may be the need to sell it prior to the division of assets, which can add to the lengthy process.

Taxes must also be taken into consideration and paid during the proceedings. In this extremely complicated legal process, it is important to have an expert overseeing all details in order to alleviate as much stress as possible. Every state has laws that are unique to the region, so it’s important to employ a representative who is well acquainted with the locale.

This situation can last for months or even as long as a year before all is settled and property is fairly divided. Court and lawyer costs that are required can add up to a substantial amount. Many people try to avoid excessive expenses by setting up a living trust. In this case, ownership of property can be transferred while a person is alive via the trust. When a person dies, his beneficiaries will inherit the property in this manner, which can be a more private affair than the public division of proceedings. Whether to use a probate attorney or a living trust option is an individual choice.

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