Settling Small Estates (VA)
In Virginia, probate is not required for "small" estates, and there are several alternatives available. Regardless of estate size, probate is also not required if an estate contains only assets exempt from probate.
Personal Property
In VA, you can bypass probate if the personal property is worth <$50,000.
Estate Valuation
When determining whether a VA estate qualifies as "small", you should value assets as of the date of death, and ignore any debts.
Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Small Estate Affidavit
You can skip probate and handle things yourself if:
- The personal property in the estate (i.e., everything except real estate) is worth <$50,000
- At least 60 days have passed since the death
- There is no application for personal representative pending or granted
- The will (if any) has been filed with the court
If the estate meets the above criteria, you can
- Prepare a small estate affidavit
- Everyone entitled to receive an inheritance must sign the affidavit in front of a notary
- Use the notarized affidavit to obtain possession of estate assets from their current custodians
- Settle the estate in the normal manner (pay all debts, distribute assets)
If everything goes smoothly with this process, you will not need any court involvement at all (other than filing the will if one exists, and paying taxes).
See VA Code § 64.2-601.
Small Assets Without Affidavit
You may be able to collect individual assets worth up to $25,000 without even bothering to create a small estate affidavit as described above.
Current custodians of such estate assets are allowed to give them to you as long 60 days have passed since the death, and no application for a personal representative is pending or has been made.
Note that under this approach, current asset custodians are allowed to give you assets, but are not required to do so. If you run into difficulty, you may have to use the small estate affidavit approach instead, or even full probate.
If you do collect estate assets this way, you then have responsibility for settling the estate in the normal manner (pay all debts, distribute assets).
See VA Code § 64.2-602.
Real Property
If the estate contains only real property (i.e., real estate), you may be able to avoid probate regardless of overall estate value.
When a Will Exists
If there is a valid will, you may be able to file the will with the court to record that fact that title of the real estate should pass to the new owner, without requiring a personal representative to be officially appointed and going through full probate.
Without a Will
If the decedent died without a will, any interested person may file an Real Estate Affidavit (Form CC-1612) with the court describing the real estate, acknowledging there is no will, and providing the names and addresses of the heirs-at-law. The court will then indicate to the local Commissioner of Revenue that the property may be transferred to the inheritors.
If the real estate needs to be sold, or if there are estate creditors that will not otherwise be satisfied, you will have to go through probate.
See VA Code § 64.2-510.
Vehicles
Regardless of the size of the estate, if no personal representative has been appointed or has an application pending, then inheritors may go directly to the DMV and apply to have the title of any motor vehicle transferred. Use Form VSA-24.
You can take similar action for watercraft registered with the US Coast Guard: see VA Code § 64.2-606.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in VA, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in VA, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow VA probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Intestate Inheritance
If the decedent died without a will, he or she is considered to have died "intestate", and thus the course of descents will determine who should inherit the estate: the "heirs-at-law" (surviving spouse, children, parents, siblings, etc.). See VA Code § 64.2-200 for details.
Court
In Virginia, the local Circuit Court handles wills and estate probate, If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate court here.
The only court involvement required for small VA estates is to file the will, if one exists. You must also file an estate valuation with the court so that taxes can be determined if the estate is worth >$15,000: use Form CC-1651.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in VA.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in VA.
Finally, in case you're interested, details about handling small estates in other states can be found here: