Probate in Virginia: First Steps

Probate is the process of proving the validity and filing of a will with a Circuit Court in Virginia. The process for someone who dies without a will is entirely different. The executor named in the will may also qualify at the same time. Preparing for probate in Virginia can be rather overwhelming especially if you’ve never even considered the possibility of becoming an executor. On top of that, you may be dealing with the raw emotions of the loss of your loved one.

The first point of contact for probate is the Circuit Court Clerk in the jurisdiction where the deceased resided in Virginia. The clerk will set up an appointment and guide you through the probate process. Every Circuit Court in Virginia will have their own preferences for setting up an appointment.

The following is a list of documents to collect before you go to a probate appointment. Once again, speak with the Clerk’s office in your specific jurisdiction to make sure you have everything for your appointment.

1. Valid Will.[1] You must bring the original of the will to the Clerk’s Office. A valid will can take one of three forms:
   1. An entirely handwritten will. This type of will must be verified by two witnesses who are not beneficiaries and can identify the decedent’s handwriting.
   2. A will that has been prepared, signed by the decedent, and then witnessed by at least two people. These two people may be required to appear before the clerk.
   3. A will that has been prepared, signed by the decedent, and accompanied by a self-proving affidavit, see Virginia Code §2-452, which is simply an affidavit witnessed and notarized proving that the will was created in accordance with Virginia law.
2. Certified Copy of the Death Certificate. The Virginia Department of Health Vital Records Division issues certified copies of Virginia death certificates. There are four ways to obtain the record: mail, walk-in, express delivery service, or full service DMV locations. In some cases, if the death certificate is unavailable, an Obituary is accepted.
3. Probate Information Form. Requests personal information about the decedent and the person seeking qualification as administrator or executor.
4. Bonding Agent. Unless the will expressly waives surety on the bond for the administrator, the insurance agent provides surety on the administrator’s bond.  A bond is not required in all circumstances.  A bond is insurance that covers any loss due to negligent or fraudulent handling of estate funds. In practice, many wills waive this requirement.
5. Payment for Probate Tax. The probate tax must be paid at the time of filing. Courts accept personal checks, money orders, certified checks and credit cards. Speak with your specific Virginia Circuit Court to ensure proper payment methods.
6. Proper Identification. If you are seeking to qualify as the executor of an estate, you should also bring a proper ID to the probate meeting.

This post only focuses on the beginning process. Many executors find that they need legal assistance in carrying out their duties. Certainly contact our office if you have specific concerns or need assistance with the probate process.

[1] Many times, the Clerk’s office will determine before the meeting whether the Will is valid or not. Some require that you fax a copy in advance of the meeting.