THE PROBATE STEPS
Step #1: IS PROBATE NECESSARY?
Often this question can be answered by simply calling the probate office where the decedent’s estate would be probated. The probate clerks are extraordinarily qualified, and while they are prohibited by law from giving legal advice, they are trained to ascertain whether an estate must be probated, and if so, what are the options for you to do so. However, it cannot be emphasized enough that the probate clerks rely on the information you give them, and insufficient or incorrect information may lead to a result that is incorrect for your situation.
Take a look at the Resource Tab under Documents for Step #2 - Probate Qualification for some intake questionnaires used in the probate office that may aid you in more carefully compiling the information needed to determine this threshold question.
Assuming a formal, court supervised probate is necessary, what follows is a discussion of the process for such a probate. There are many tasks to be accomplished along the way, so this discussion is but an overview.
Step #2: HOW TO QUALIFY IN A VIRGINIA PROBATE OFFICE
Once you have determined [see discussion at Estate Admin Overview tab] that someone needs to qualify as executor or administrator, you need to contact the local probate office to make an appointment to do so. Just being named in the Will, or being the sole heir, surviving spouse, or a child of decedent, does not confer upon you the full authority of the office of executor or administrator.
Step #3: REQUIRED NOTICES AND PROBATE OFFICE FILING
After you have been qualified, you need to give certain notices to beneficiaries or potential beneficiaries of the estate, and then report this to the Probate Office. This is typically not a difficult undertaking, but it is necessary to complete. If you do not do so, then the approval of your Inventory filed in Step #4 below will be delayed.
Step #4: INVENTORY FILED WITH COMMISSIONER OF ACCOUNTS
You need to prepare and file an Inventory with the local Commissioner of Accounts serving the Probate Office where you were qualified. This must be done within 4 months after the date you qualify in the Probate Office.
Step #5: INITIAL TAX CONSIDERATIONS AND ACTIONS
There are several initial tax actions you should take, including obtaining a Federal Employer Identification Number, seeking tax clearance on all filed personal tax returns with IRS and Virginia, seeking tax clearance from county and city tax authorities, selecting a tax year, valuing assets as of date of death, and more.
Step #6: COLLECT THE ASSETS AND IDENTIFY THE DEBTS OF DECEDENT
You have a host of tasks at this point, all focused on collecting or marshalling the assets of the decedent, identifying his debts and liabilities, and much more.
Step #7: ACCOUNTING TO COMMISSIONER OF ACCOUNTS (AND BENEFICIARIES)
You have to file an accounting with the Commissioner of Accounts to report all money received, expenses paid, payments to beneficiaries, and document all of the foregoing, and then report the assets on hand and document value of the assets reported. This is not complicated in and of itself, but as Commissioner Rust has noted in the past, what needs to be reported and how it is reported is not necessarily "intuitive".
Step #8: MORE TAX CONSIDERATIONS
All tax returns, both the final personal and ongoing fiduciary, need to filed. A Federal Estate Tax Return may need to be filed. Need to collect tax information from all beneficiaries in order to file the tax returns. Further tax clearances should be sought for both the decedent AND the estate.
Step #9: COMMISSIONER OF ACCOUNTS AND CIRCUIT COURT HEARINGS
Some hearings before the Commissioner of Accounts, and in the Circuit Court, may be necessary along the way, including debts and demands hearing, beneficiary disputes, creditor disputes, determination of beneficiaries, etc.
Step #10: BENEFICIARY COMMUNICATIONS AND DISTRIBUTIONS
Important to determine early who are the beneficiaries. You may need the assistance of the Commissioner of Accounts with a hearing, or the services of an heir locator firm to find heirs.
You make the final distributions to the beneficiaries, file the final tax returns, file the final accounting with the Commissioner of Accounts and close the estate.
Wrapping up the Estate