Wills and Probate
The Clerk's office cannot help you with preparing or correcting your file.
It is illegal. Va Code 19.2-392.2
The purpose of this information is to inform the general public and is not legal advice or remedy. Please read the following:
- Probate is done by appointment only.
- Complete the Probate Packet Form. Submit completed form with a copy of the Will (if there was one), a copy of the death certificate, the most recent assessment or tax bill for all property the decedent owned in Virginia and a List of Heirs. Don't forget to scan and email the Will (if there is one) and the Death Certificate to Jeff Small.
- If you wish to schedule a probate appointment or have any questions please contact Jeff Small.
- Small Estate Affidavit: (PDF) This form can be used if the personal property (not real estate) of the estate does not exceed $50,000.00. This is not a Circuit Court Form and does not get filed or returned to the Court.
- Real Estate Affidavit: (PDF) This form can be used if there is real estate that needs to be transferred upon death.
- Bonds: Ohio Casualty (540) 373-1531 and Ford & Thomas (804) 266-7696
- Uniform Fee Schedule Guidelines For Commissioner of Accounts (PDF)
Specific procedural questions may be answered by calling this office. If you have a problem involving the legal interpretation of Virginia statutes pertaining to estates, you may wish to contact an attorney licensed in the Commonwealth of Virginia.
QUESTIONS AND ANSWERS ABOUT THE ADMINISTRATION OF ESTATES
What terms are involved in the administration of estates?
The decedent is the deceased, i.e. the person who left the estate. A decedent has died testate if he or she has left a valid will. If a person dies intestate (without leaving a valid will), the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and who will therefore receive the decedent's property.
The person who the court appoints to administer the estate for the decedent is called an executor if specified in the will or a personal representative if no executor was specified. Executors and personal representatives are also referred to generically as administrators or fiduciaries. Other people involved in the administration of estates include the Commissioner of Accounts (a local person appointed by the circuit court to oversee the administration of estates), the circuit court clerk and his or her deputies, and the circuit court judges.
The will (last will and testament) is a legal document drawn up by a person and/or his or her attorney to specify how a person's property should be distributed and who should administer the affairs of the estate. The List of Heirs is a legal document prepared by the estate's administrator that lists the people specified by the will and/or by law who are eligible to receive distributions from the estate. A copy of a document is certified by a circuit court deputy clerk to indicate that it is a true and complete copy of the original. An exemplified copy also contains the official seals of the judges and clerk of the circuit court.
To probate a will is to officially prove it as the authentic and valid last will and testament of the deceased and admit it to record. Qualification and appointment of a personal representative may or may not accompany probate. If a decedent owns real estate in multiple jurisdictions in Virginia, the will should be probated in the jurisdiction where he or she resided and then a certified copy recorded in the other jurisdictions. If real estate is owned in another state, an exemplified copy of the will must be probated in that state.
When should a will be probated, or, if there is no will, when should a personal representative be appointed?
Although there is no statutory schedule for probating a will or beginning estate administration, it is prudent to begin the estate process within one to three weeks after death.
Who inherits the property of an estate (person dying without a will)?
The distribution of property for an estate is governed by the laws of the Commonwealth of Virginia in effect at the time of death. After payment of funeral expenses, debts and cost of administration, the law provides for the following course of descents:
- All to the surviving spouse, unless there are children (or their descendents) of someone other than the surviving spouse, in which case one third goes to the surviving spouse and the remaining two thirds is divided among all children.
- If no surviving spouse, all to the children and their descendents.
- If none, all to the decedent's father and mother or the survivor.
- If none, all to the decedent's brothers and sisters and their descendents.
There are other contingent beneficiaries set out in the Code of Virginia.
How long does it take to probate a will or appoint a personal representative on an intestate's estate?
The probate process takes approximately 10 minutes if the paperwork has been completed correctly, no changes are made at the time of the appointment, or a surety bond is required. Please note each probate is unique and subject to specific factors which may prolong or decrease the time.
What taxes and fees are associated with probate?
- The state probate tax is 10 cents per $100 of the estate value at the time of death.
- The local probate tax is : There is no local probate tax in the City of Fredericksburg.
- The recording fee is $16 for the first ten (10) pages of the Will, $16 for the List of Heirs, $43 for an Intestate List of Heirs, now known as a Real Estate Affidavit (if applicable) and $16 for the Affidavit of Notice. Fees for additional pages are as follows: eleven (11) to thirty (30) pages - $30, more than thirty (30) pages - $50.
- The qualification fee is based on the value of the estate.
- The transfer fee of $1 will be charged for any real estate taxed in the name of the decedent.
- The final federal and state income tax, personal property tax, and estate tax returns must be filed for the deceased and the estate as applicable. Generally, federal and state estate taxes are only due if the gross estate (including life insurance and all property) exceeds the amount on the tax schedule. For more information on taxes, contact the Internal Revenue Service and the Virginia Department of Taxation.
Is it always necessary to have someone qualify as a personal representative on a decedent's estate?
Qualification is not always necessary if the estate consists solely of:
- Real estate held with full rights of survivorship. (When a husband and wife own their home jointly, with right of survivorship, the surviving spouse "automatically inherits" the other half's interest.) While not considered for probate purposes, real property held in this manner is not exempt from estate tax considerations.
- Jointly owned bank accounts.
- Insurance or bonds payable to a living beneficiary.
- Anything Payable On Death (P. O. D.).
Who will qualify as an executor under a will?
If there is a will, and an executor or executors is named in the will, the person or persons specified will qualify.
If there is a will, but no executor is named or the specified executor refuses or ceases to serve, the circuit court may grant administration to an alternate executor or a beneficiary of the will.
If there is no will, the surviving spouse is given preference in the appointment of a personal representative, followed by the other natural distributees (children, parents, etc.). Anyone having an interest in the estate may qualify after 30 days.
Whoever is appointed as an executor must take an oath to faithfully perform the duties required and must give bond in an amount at least equal to the value of the estate. If the will does not waive surety, surety must be given on the bond.
Who has jurisdiction to qualify administrators on a decedent's estate in Virginia?
The circuit court clerks and deputies thereof may qualify personal representatives.
Where should I go to qualify as a personal representative on someone's estate?
Go to the circuit court clerk's office of the jurisdiction:
- Where the decedent had a known place of residence, or, if none;
- Where the decedent owned real estate, or, if none;
- Where the decedent died or owned any property.
Record and copy requests should be made in writing with payment sent in advance if requested by mail. Copies are $0.50 per page or $1.00 for copies on pages larger than 8.5"x11". For Clerk's certification of a document there is a $2.00 charge. If you would like copies mailed to you please send us a return addressed stamped envelope to send you the documents in.