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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