Probate for Small VA Estates

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Courthouse for estate probate

In Virginia, probate is not required for "small" estates, and there are several alternatives available.

Personal Property

In VA, you can bypass probate if the personal property is worth <$50,000.

Estate Valuation

When determining whether a VA estate qualifies as "small", you should value assets as of the date of death, and ignore any debts.

Do not include assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Small Estate Affidavit

You can skip probate and handle things yourself if:

  • The personal property in the estate (i.e., everything except real estate) is worth <$50,000
  • At least 60 days have passed since the death
  • There is no application for personal representative pending or granted
  • The will (if any) has been filed with the court

If the estate meets the above criteria, you can

  • Prepare a small estate affidavit
  • Everyone entitled to receive an inheritance must sign the affidavit in front of a notary
  • Use the notarized affidavit to obtain possession of estate assets from their current custodians
  • Settle the estate in the normal manner (pay all debts, distribute assets)

If everything goes smoothly with this process, you will not need any court involvement at all (other than filing the will if one exists, and paying taxes).

See VA Code § 64.2-601.

Small Assets Without Affidavit

You may be able to collect individual assets worth up to $25,000 without even bothering to create a small estate affidavit as described above.

Current custodians of such estate assets are allowed to give them to you as long 60 days have passed since the death, and no application for a personal representative is pending or has been made.

Note that under this approach, current asset custodians are allowed to give you assets, but are not required to do so. If you run into difficulty, you may have to use the small estate affidavit approach instead, or even full probate.

If you do collect estate assets this way, you then have responsibility for settling the estate in the normal manner (pay all debts, distribute assets).

See VA Code § 64.2-602.

Real Property

If the estate contains only real property (i.e., real estate), you may be able to avoid probate regardless of overall estate value.

When a Will Exists

If there is a valid will, you may be able to file the will with the court to record that fact that title of the real estate should pass to the new owner, without requiring a personal representative to be officially appointed and going through full probate.

Without a Will

If the decedent died without a will, any interested person may file an Real Estate Affidavit (Form CC-1612) with the court describing the real estate, acknowledging there is no will, and providing the names and addresses of the heirs-at-law. The court will then indicate to the local Commissioner of Revenue that the property may be transferred to the inheritors.

If the real estate needs to be sold, or if there are estate creditors that will not otherwise be satisfied, you will have to go through probate.

See VA Code § 64.2-510.

Vehicles

Regardless of the size of the estate, if no personal representative has been appointed or has an application pending, then inheritors may go directly to the DMV and apply to have the title of any motor vehicle transferred. Use Form VSA-24.

You can take similar action for watercraft registered with the US Coast Guard: see VA Code § 64.2-606.

Estate Settlement Considerations

Before paying any debts or making any distributions, be sure to account for any VA Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

See also Making Distributions.

Intestate Inheritance

If the decedent died without a will, he or she is considered to have died "intestate", and thus the course of descents will determine who should inherit the estate: the "heirs-at-law" (surviving spouse, children, parents, siblings, etc.). See VA Code § 64.2-200 for details.

Court

In Virginia, the local Circuit Court handles wills and estate probate, If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate court here.

The only court involvement required for small VA estates is to file the will, if one exists. You must also file an estate valuation with the court so that taxes can be determined if the estate is worth >$15,000: use Form CC-1651.

See also General Probate.

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