Virginia Probate Law by Christopher Taylor: Court Rules

If the decedent died with a Will, bring the following to the  Clerk's Office:

• The original Will.
• A certified copy of the death certificate or copy of the obituary.
• In some instances, it may be necessary for witnesses to the Will to be present, or depositions of witnesses may be required.  The Probate Clerk will examine the Will for a self-proving clause; a determination cannot be made over the telephone.
• A named executor residing outside of Virginia who wishes to be appointed as executor must bring a Virginia resident to the probate appointment to either co-qualify or be designated as a registered agent.
• The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate.
• The names, ages and addresses of the heirs-at-law. The heirs-at-law are not necessarily the beneficiaries of the Will.  Heirs-at-law are determined by kinship to the deceased and are set by Virginia law.
• If the executor named in the Will does not wish to serve, a renunciation letter must be presented to the Clerk signed by the named Executor.  If the named executor is deceased, a death certificate is required.  There may be additional requirements when the named Executor declines to serve. Please contact the Clerk's Office for further information.
• A check or cash for which to pay fees. *All fiduciaries must be bonded.  State statutes and certain language  contained in the Will govern whether the bond is with or without surety.   The Probate Clerk will set the appropriate bond at the time of qualification.

If the decedent left no Will, bring the following to the Clerk's Office:

• A certified copy of the death certificate or a copy of the obituary.
• Names, ages and addresses of heirs-at-law. The heirs-at-law are determined by kinship to the deceased and are set forth in the Code of Virginia.
• A non-resident of Virginia who wishes to be appointed as Administrator must bring a Virginia resident to the appointment to either CO-qualify or to be designated as a registered agent.

  Within the first 30 days after the death of an intestate person, only a sole distributee or his designee may be appointed to administer the estate, or if there is more than one distributee, one designated by all distributees on their written waiver of appointment.

  After 30 days, the first distributee or his designee to apply may be appointed without notice to others by the clerk.  However, if within the first 30 days a distributee has indicated in writing his/her desire to qualify as administrator, the clerk will then notify all distributees making the same request before making any appointment.

  Within 60 days from the date of death, the clerk will not go out of the class as explained above, if a suitable person within this class can be found.  After 60 days, the clerk is allowed broader discretion, but a distributee who applies is still preferred over any other person.  The Court may depart from the above rules when the Court, in its discretion, deems it appropriate.

• The approximate value of the solely owned assets of decedent for both personal property (stocks, bond, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate.
• Check, cash or credit card to pay fees.  Please be advised that a 4% or $2.00 minimum convenience fee is charged on credit card transactions. * All fiduciaries must be bonded.  State statutes govern whether the bond is  with or without surety.  The Probate Clerk will set the appropriate bond at the  time of qualification

§ 64.2-443. Jurisdiction of probate of wills

- The Circuit Court having jurisdiction over the residence of the decedant and should the decedant have been a resident of a nursing facility or similar residence, the Circuit Court having jurisdiction would be the court in which the decendants last legal residence was located.

§ 64.2-444. Clerks may probate wills

- This statute allows for the formal probate to occur without an ordinary hearing in a courtroom infront of a Judge.  The items submitted to probate, if they aren't contested or lacking in any of the Title 64.2, Subtitle II, Chapter 4 Requirements, then they can be probated without intervention from the court. 

§ 64.2-445. Appeal from order of clerk

- Should the proponent or contestant of the Will disagree with the clerk's determination, the dissatisfied party has the ablity to appeal the clerks order.

§ 64.2-446. Motion for probate; process against persons interested in probate

- This statute requires that all potentially interested parties must be notified that the Will is being offered for probate thus giving the the oppurtunity to contest or support the will.

§ 64.2-448. Complaint to impeach or establish a will; limitation of action; venue

- An interested party in the decedants estate has up to ne year to submitt an impeachment complaint. After a complaint is submitted, the next step in the probate process is a trial by jury. The venue for filing a complaint to impeach or establish the will shall be as specified in subdivision 7 of § 8.01-261. Once the final order submitting the will to probate is issued, no further impeachment complaints will be accepted.

§ 64.2-449. Procedure in probate proceedings

- Each proceeding requires all testamentary papers be submitted for review, all interested parties be notified, legal gaurdians appointed for interested parties under the age of 18.

Virginia Court Clerk's Association