Fairfax, VA Probate Blog

A Probate Attorney should be consulted before you ever meet with the probate clerk. Frequently individuals open up a probate estate unnecessarily thereby exposing them to liability (i.e., IRS) and incurring unnecessary probate fees. If you have already opened up the estate, then it is even more important and time sensitive that you consult a Probate Attorney.

What is Ancillary Probate? Ancillary Probate generally is a secondary probate process necessary to pass a decedent's real property or personal property that is located within the jurisdiction outside of the decedent's home state. Most states have passed laws making ancillary probate a fairly straight forward process.    

When a resident of another state dies, and

As it relates to probate & estate administration, generally real property is governed by the laws of the state where the respective parcel has situs and personal property is governed by the laws of the decedent’s domicile. . . . . .

"If you fail to prepare a will, your personal property maybe distributed according to the laws of your domicile whereas your real property maybe distributed according to the laws of the state where the real property is located." 

Under Virginia Law, if a decedent dies without a duly executed Last Will & Testament, then that person's probate assets will be distributed according to statutory law. We say that said person died intestate (without a valid Will).  Additionally we refer to the process as intestacy and the decedent's probate estate as the decedent's intestacy estate. 

Probate is generally a governmental process for determining and overseeing the transfer of a decedent’s Probate Assets to the rightful beneficiaries. The government, for administrative reasons, appoints a special Commissioner to complete the probate process on behalf of the government. Generally, there is no need to probate if there are no probate assets. However, numerous exceptions apply (creditor’s rights issues, spousal rights issue, tax related issues, ect.). Probate is generally a wasteful, cumbersome and slow. Probate should be avoided if possible

Estate Attorney Defined: An estate attorney is an attorney that administer’s a decedent’s estate. 

Estate Attorney: What does an estate attorney do? 

The estate attorney is tasked with collecting estate assets, preserving the estate, probating the estate, paying estate expenses, costs, debts and taxes, and distributing estate assets. 

If the vehicle is a probate asset, and assuming the vehicle was titled in the name of the decedent at death). The vehicle will pass in accordance with the probate rules. One of two results may likely occur.

#1 If the decedent has or is expected to have a personal representative qualified on the estate, than said personal representative will have to visit the DMV to transfer the vehicle into the name of the estate. The personal representative must provide the DMV with letters of qualification and any other documents they need (call in advance).

#2 If the decedent isn't expected to have any person qualify as a personal representative, then the beneficiary(s) can go to the DMV and sign the necessary documentation to have the title pass to the beneficiary(s).

Personal Representatives in Virginia are required to file an Account for Decedent's Estate within 16 months of qualification. The probate clerk, at the appointment for qualification, should have provided the personal representative with a Qualification Packet with instructions for preparing and filing the accounting. Instructions can also be found at the following link Account for Decedent’s Estate (Instructions). 

The Accounting period shall not exceed 12 months. Consequently, Virginia gives Personal Representatives 4 months to complete the Account for Decedent's estate after the Accounting period expires. An exception is Curators. Curators must file an Account for the Decedent's Estate within six months of qualification (and covering the first four months). 

The Accounting should be filed with the Commissioner of Accounts for the county/city where the Personal Representative qualified. The Account for Decedent's Estate should not be filed with the Probate Clerk. The Probate Clerk and the Commissioner’s offices are separate and distinct offices.  A list of Virginia Commissioner’s of Accounts can be found at the following link Commissioner of Accounts (Addresses). 

Because the Instructions for completing the Accounting have been provided in the above link, this blog will not go over the instructions for completing the Accounting. Instead, this blog will provide five helpful tips for completing the Accounting.

Personal Representatives in Virginia are required to file an Inventory for the estate within 4 months  of qualification. The probate clerk, at the appointment for qualification, should have provided the personal representative with a Qualification Packet with instructions for filing the Inventory. Instructions can also be found at the following link Inventory for Decedent’s Estate (Instructions). 

The Inventory should be filed with the Commissioner of Accounts for the county/city where the personal representative qualified. The Inventory should not be filed with the Probate Clerk. The Probate Clerk and the Commissioner’s offices are separate and distinct offices.  A list of Virginia Commissioner’s of Accounts can be found at the following link Commissioner of Accounts (Addresses). 

Because the Inventory instructions have been provided in the above link, this blog will not go over the instructions for completing the Inventory. Instead, this blog will provide two helpful tips for completing the Inventory correctly.