If a loved one in the Newport News area has passed away, with or without a will, there’s a good chance his or her estate will have to go through the probate process. It’s a way for the person’s affairs to be concluded and if there are any assets left after bills, costs and taxes are paid they can be distributed to beneficiaries as spelled out in the will or to the next of kin if there is no will.
What is probate?
Probate is the process where a will is authenticated and recorded. It should be probated in the circuit court of the city or county where the deceased owned a home. There’s no “probate court” in Virginia. Estates of those dying without a will are also dealt with through the probate process, though different laws and procedures apply.
The person approved by the court to administer an estate involving a will is the executor and if there’s no will the person is the administrator. The executor can be named in the will but the court makes the ultimate decision who gets the job. If there is no will multiple people could come forward to try to be the administrator, but the judge makes the decision.
Perhaps the person’s most important duty is to determine and locate all the estate’s assets, property, debts and bills. He or she can take possession of the property, essentially standing in the shoes of the deceased, and take steps necessary to comply with the will and state law. The person needs to put a value on the assets and property, prioritize the debts in case there aren’t enough assets to pay them all, sell property as necessary then pay the obligations based on their ranking.
When is probate necessary?
Depending on the estate probate may not be necessary. If there’s no will and the estate is small enough Virginia law allows you to bypass the probate process altogether and use a simplified process. The estate may be considered “small” and be able to avoid probate if the value of the entire estate is $50,000 or less.
If the decedent left a will and owned real property just in his or her name, the will should be probated to legally establish title in the names of the beneficiaries receiving title to the property through the will. The probated will is a public record and establishes their ownership of the real property. The will should also be probated if the deceased owned personal property (such as a vehicle or household items) just in his or her name, unless the personal property can be transferred to the intended persons under the small estates procedure.
The probate process isn’t just rubber stamping what the person representative does.
Though most of the time probate is just a formal process to pay bills and taxes then to transfer assets according to a will or state law, litigation could become part of the process.
- Heirs or beneficiaries may claim the executor or administrator is abusing his or her position for personal gain or is mismanaging financial matters.
- If there’s no will a person may come forward and claim to be entitled to a share of the estate because they qualify as next of kin.
- The validity of the will could be challenged. A potential heir may claim the will isn’t valid because it doesn’t comply with legal requirements or the person creating it wasn’t competent to do so or was under the undue influence of another party who received an unfair share of the estate.
Get help with your Newport News probate case
If a close family member has passed away with or without a will and you have questions about probate or your family needs legal representation in a probate matter, Kevin Weldon can help. Call us today at 757-214-1371.