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DO YOU NEED TO AVOID PROBATE? 
 
The Facts

What is Probate? It is the legal process of presenting your Will to the Court, after your death to authenticate it, and appoint your Executor. Your Executor must be appointed by the Court in order to collect and distribute your assets as stated in your Will. However, because it is a legal process, there are many steps that must be followed before your Executor can be appointed.

  • The Executor or Personal Representative is the person appointed by the Will to perform probate under the court's supervision before any  beneficiairy can receive their inheritance.  Probate can be a complicated process even if all beneficiaries agree with the terms of the Will.  In the case of a contested Will, matters become even more complicated.  Will contests can occur because in Virginia, even if an heir is not a named beneficiary, the court required that he be notified in writing that he might be a beneficiary! Understandably, this requirement can lead to misunderstandings and hurt feelings.  Wills can be more difficult to probate in second-marriage situations, if you have minor children, or if  a beneficiary's whereabouts is unknown. If a beneficiary is under the age of  18, the court will need to appoint a separate attorney known as a guardian ad litem to represent them. The same is true if any of your heirs are legally incapacitated, such as a retarded child or spouse with Alzheimer's.
  • The Executor will have to submit the original Will, a family tree, filing fees,  an inventory of the decedant's assets, a death certificate and, if the Will is not drafted with "self-proving" signatures by the witnessess, affidavits from the individuals who witnessed the Will must be produced.  Only then does the Executor receive the court's appointment to serve in this fiduciary capacity. 
  • After your Executor is appointed, estate administration begins. It is a period of time the law permits the Executor to accumulate the assets and report to the Court how he/she intends to distribute them.   These reports to the courts are know as "accountings" and must be approved by the Commissioner of Accounts who is appointed by the court to serve as their agent.  This period of administration is a minimum of nine months after the Executor is appointed. However, in most cases, it process takes a year or more. If you die without a will, the probate process is similar, but the state statutes might well determine who gets  the decedent's  assets.

Unfortunately, probate is unpredictable. That's why many people choose to avoid it, but if all of your heirs agree and your assets are centralized, it can go smoothly.