1. When is it necessary to probate an estate?
2. Where should I go to qualify as a personal representative for an estate?
3. Where is the City of Winchester and the County of Frederick probate office located?
4. What are the fees associated with probate?
5. What is the procedure to probate an estate with a will?
6. What if the named executor does not wish to serve?
7. What if the named executor is deceased?
8. What if the named executor wishes to be removed as such after qualifying?
9. What if an in-state executor or any other fiduciary residing in Virginia moves from Virginia after qualification and the estate is still open?
10. How is qualification as administrator determined?
11. What should the prospective executor/administrator bring to qualify?
12. What are the duties of an executor/administrator?
13. Are bonds required?
14. How long does it take after qualification to complete the probate process?
15. What if the only solely held asset was real estate?
16. What if the only asset was a motor vehicle?
17. Is probate necessary in a small estate?
18. What constitutes a valid will?
19. What is a self-proved will?
20. Are holographic wills legal in Virginia?
21. Should a will be kept in a safe deposit box at a bank?
22. May the clerk's office help someone write a will?
23. Where may a copy of a death certificate be obtained in Virginia?
24. Whom does one contact about inheritance taxes?
25. Is this all I need to know about administering estates?

A. An estate must be probated when the decedent has solely-held assets that do not have a joint or co-owner with rights of survivorship, a beneficiary (actually on the account or security -not in the will) or a pay-on-death designee. Assets include real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities.

A personal representative must qualify to file a wrongful death suit or to continue a pending suit when one of the parties dies before the conclusion of the suit.

• To the clerk's office of the circuit court of the jurisdiction:
  • where the decedent was last known to reside, if none, then
  • where the decedent owned real estate, if none, then
  • where the decedent died or had any estate
    
    
  • For persons residing in a nursing home/convalescent home, pursuant to § 64.1-76 of the 1950 Code of Virginia, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient. However, that such presumption may be rebutted by competent evidence.

A. Circuit Court Clerk's Office for the City of Winchester or the County of Frederick is located in the Joint Judicial Center, 5 North Kent Street, Winchester, Virginia.

Office hours are 9:00 a.m. to 5:00 p.m., Monday through Friday. You may call the Clerk's office to arrange a suitable time. It will take approximately 45 minutes to an hour to complete the necessary forms.

A. The Code of Virginia mandates fees for probate. The statutes may change annually; therefore, check with the probate office for updates.

• A Virginia resident to accompany a nonresident prospective executor or administrator.
  • The original will (for testate estates).
  • A certified copy of the death certificate.
  • Approximate dollar value of any solely-held personal assets.
  • Approximate fair market value of real estate in Virginia deeded solely to the deceased or the value of the percentage owned by the deceased when the real estate is deeded as tenants in common.
  • Names, ages and addresses of heirs at law. These are individuals who are legally entitled to receive an estate when there is no will, pursuant to § 64.1 of the 1950 Code of Virginia, as amended. This list is still required in a testate situation.

• Giving notice to interested parties and filing an affidavit of notice.
• Filing income, inheritance, or estate tax with the federal or state government.
• Filing an inventory and accounts of the estate with the Commissioner of Accounts (not the circuit court clerk's office), until the estate is closed.
• Under certain circumstances, a fiduciary may file a statement in lieu of the accounts.
• Payment of debts in the order set forth by law.
• Disbursement of remaining assets according to the will or to the heirs at law.

• When there is a will, the executor will make an appointment in the jurisdiction of probate (where the decedent resided at the time of death) to record the will without qualification (unless the will specifically directs the executor to sell the real estate). When there is no specific directive to sell, the statutes in the Commonwealth of Virginia do not require an executor to qualify, if the only solely held asset was real estate. Once the will has been recorded, the real estate passes automatically, by law, to the beneficiary of the real estate under the will.
  
  
• When real estate is in Virginia, but outside the county having jurisdiction of probate, the will is still recorded in the county having jurisdiction. Recording fees and probate tax are collected. A certified copy of the will, list of heirs and probate order are prepared for the person presenting the will, to record in the county where the real estate is located. Also included is a certificate reflecting probate tax collected on real estate by the clerk's office having the original jurisdiction of probate.
  
  
• If the probate jurisdiction is outside Virginia and real estate is solely held by the deceased in Virginia, exemplified (or triple sealed copies) of the probate documents are prepared by the jurisdiction of probate to record in the county in Virginia where the real estate is deeded. Recording fees and probate tax must be collected and a new list of heirs for Virginia must be recorded. Ancillary administration is not required in Virginia, unless it is a directive under the will to have the real estate sold by the executor.
  
  
• When this directive is absent, upon recording the will, the real estate passes automatically, by law, to the beneficiary of the real estate in the will. The real estate may then be sold by the beneficiary, as a beneficiary (not as an executor).
  
  
• For an intestate estate where real estate is the only solely held asset, the heirs would record a list of heirs (obtained from the probate office), and pay a recording fee. A death certificate must be presented along with the document.

This site developed and maintained by:
Debby Payne, Webmaster
Any comments? dlpayne@courts.state.va.us