We have provided the information below as general information. It is not legal advice because we do not know the specifics of your situation. It is prudent to get legal advice specific to your situation. Your use of this site does not create an attorney-client relationship with us. If you would like to speak with us about your situation, please call (540) 342-0888 or send us an email. Thank you for visiting our website.
- I have been named the executor of a family member’s will. How do I start the probate process?
- My mother passed away recently with a will. She left all of her assets to me through a pay on death account. Do I still need to probate her will?
- My mother passed away recently and my brother and I are her only heirs. She owned her home, furniture and a small bank account. Do we need to become the administrators of her estate?
- I have been named the executor of a friend’s will. It appears that he will have more debts than assets. What steps do I need to take in administering this estate?
- My husband recently passed away. He had more debts than assets. Is there any way I can protect some of his assets from creditors?
- My husband recently passed away after changing his will to disinherit me. Do I have any rights to his assets under Virginia law?
- Does Virginia have a probate tax?
- I just qualified as the executor of my relative’s estate. What information do I report to the Court?
- I am the executor of my father’s estate. Will I have to pay a federal or Virginia estate tax? Will I have to pay an income tax on the income earned by his estate?
- My father recently passed away and I am his executor. His will divides his assets between his three children. His bank account was owned jointly with me with the right of survivorship. Who should receive the funds in this bank account?
- My husband passed away in 2015. Can I file joint federal and Virginia income tax returns for 2015? When are they due?
1. I have been named the executor of a family member’s will. How do I start the probate process?
A: We recommend seeking legal advice before probating the will at the local courthouse. Certain estates, based on the value of the assets or the type of assets, do not require the qualification of an executor. If you go to the courthouse before determining if an executor is needed and qualify as executor, you may create additional work and expense that would not have been necessary.
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2. My mother passed away recently with a will. She left all of her assets to me through a pay on death account. Do I still need to probate her will?
A: Yes, you should go ahead and probate her will. You should not qualify as executor. Probating the will simply means putting the will on record at the local courthouse. The cost is minimal. This prevents the will from being lost should property passing under the will be located at a later date.
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3. My mother passed away recently and my brother and I are her only heirs. She owned her home, furniture and a small bank account. Do we need to become the administrators of her estate?
A: It depends upon the value of her personal property and the debts that she owed. If the furniture and the bank account combined are worth less than $50,000, you may be able to use the provisions of the Virginia Small Estate Act to recover the bank account without qualifying as administrator. If the home does not need to be sold to pay debts, then an administrator is not required to transfer title to the home to you and your brother.
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4. I have been named the executor of a friend’s will. It appears that he will have more debts than assets. What steps do I need to take in administering this estate?
A: First, given the complexity involved in administering an insolvent estate, you need to determine if you want to qualify as executor. We recommend seeking legal advice before probating the will and qualifying as executor. An insolvent estate must be administered in accordance with the provisions of the Virginia Code regarding the priority of payment of creditors. Asking the Court to approve final distribution through a debts and demands hearing and a show cause hearing is recommended to provide protection against unknown creditors.
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My husband recently passed away. He had more debts than assets. Is there any way I can protect some of his assets from creditors?
A: As a surviving spouse, you have the right to elect a family allowance, an exempt property allowance and a homestead allowance. These allowances take precedence over the creditors, with the exception of lien hold creditors and the administration expenses of the estate, in receiving assets. There are many issues surrounding the timing and manner for making these elections.
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6. My husband recently passed away after changing his will to disinherit me. Do I have any rights to his assets under Virginia law?
A: As a surviving spouse, you have the right to make certain elections,including a family allowance and exempt property allowance.You also have the right to claim either the homestead allowanceor the elective share of your husband’s augmented estate.Depending upon the circumstances, the elective share is either one-half or one-third of your husband’s augmented estate. This is a highly complex area of the law. There are many issues surrounding the timing and manner for making these elections, the determination of the assets included in the augmented estate, and potential defenses to the claims.
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7. Does Virginia have a probate tax?
A: Yes, Virginia does have a probate tax. The state probate tax is $0.10 for every $100 or fraction of $100 in value of the probate estate. The tax is not imposed if the decedent’s estate is equal to or less than $15,000. In addition to the state probate tax,there is also a county/city probate tax equal to one-third of the state probate tax. The tax is due at the time the will is probated.
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8. I just qualified as the executor of my relative’s estate. What information do I report to the Court?
A: Upon qualification, you are required to give notice to heirs and certain beneficiaries under the decedent’s will. You are also required to file an Inventory listing the assets in the decedent’s probate estate and an accounting of what you do with the decedent’s assets to pay her debts and make distributions.These reports are filed with the Commissioner of Accounts.There are exceptions that may apply, such as the value of the probate estate being under $25,000 or the sole executor and the sole beneficiary being the same person, to allow you to forgo the filing of these reports.
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9. I am the executor of my father’s estate. Will I have to pay a federal or Virginia estate tax? Will I have to pay an income tax on the income earned by his estate?
A: The requirement to file and pay federal estate tax will depend upon the value of your father’s estate for estate tax purposes and the year of his death. Your father’s estate for estate tax purposes will include his real estate, bank and brokerage accounts,retirement accounts, life insurance, cars, furniture, etc. If your father passed away in 2014, you are required to file a federal estate tax return and potentially pay estate taxes if his estate for estate tax purposes (including adjusted taxable gifts made during his lifetime) exceeded $5,340,000. If your father passed away in 2015, the filing threshold increases to only require filing and payment on an estate for estate tax purposes (including adjusted taxable gifts made during lifetime) that exceeds $5,430,000. The Virginia Estate Tax was repealed for decedent’s dying after July 1, 2007. You will have to file and potentially pay income taxes onincome earned by your father’s estate if the estate’s income exceeds $600 during the estate’s taxable year.
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10. My father recently passed away and I am his executor. His will divides his assets between his three children. His bank account was owned jointly with me with the right of survivorship. Who should receive the funds in this bank account?
A: Since the bank account was owned jointly with you with the right of survivorship, the account is not included in your father’s probate estate. The survivorship feature of the bank account trumps the provisions in your father’s will. The bank account belongs to you as a result of your father’s death. If you feel that was not what he intended, you may wish to consider making a gift to your siblings of a portion of the account. This is a personal gift and will not be reflected in the accounting of your father’s estate.
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11. My husband passed away in 2015. Can I file joint federal and Virginia income tax returns for 2015? When are they due?
A: Yes, you may file joint federal and Virginia income tax returns. The federal return is due no later than April 15, 2016, and the Virginia return is due no later than May 1, 2016. Filing extensions may be granted. The joint returns would include income paid on your husband’s assets only up to the date of his death. Income paid on his assets on or after his date of death would be reported by the executor of his estate.