The Statute of Limitations on Wills in Virginia

by Joseph Scrofano

    Testators, or those who draft and execute a legal will, typically appoint an executor to administer the terms of their will upon their death. When the testator dies, the executor must file the will for probate in the appropriate court. This process gives creditors and potential heirs (or immediate relatives of the testator) opportunity to file claims against the estate. The time period for making claims against the estate, however, is not unlimited. Virginia law prescribes a statute of limitations for the amount of time someone has to make a claim against an estate once it goes into probate.

    Administration

    The executor must file the will for probate in the county in which the decedent resided. Virginia does not have statutory probate courts. Accordingly, circuit courts have jurisdiction over probate matters. Therefore, the executor files the will for probate in the circuit court of the city or county in which the decedent resided. In most cases, the clerk of the circuit court oversees probate matters. Usually, the circuit court judge hears appeals from the clerk.

    Statute of Limitations

    The statute of limitations is a set time period allowed by law to give a person who has a legal right the opportunity to assert that right. If the person waits until after the statute of limitations has passed to assert her legal rights, then courts will, in most cases, bar the person from recovery. For example, Virginia has a two-year statute of limitations for personal injury suits. So, if someone is involved in an accident and wishes to sue the other person in the accident, that person must do so within two years of the date of the accident.

    Filing the Will

    Virginia does not have a statute of limitations for when an executor should probate an estate or file a will for probate in circuit court. However, Virginia courts recommend that the executor file for probate within 30 days of the testator’s death. Once the executor files the will, the circuit court clerk will issue a probate order. At that point, the statute of limitations begins to run.

    Claims Against the Estate

    Two reasons may exist for bringing claims against an estate. Creditors or other individuals may claim that the decedent owed them money or contractual obligations prior to her death. On the other hand, certain heirs may make claims to assets of the estate based on Virginia law or allegations of fraud or duress. To dispute a will, a claimant may file an appeal within six months of the circuit court clerk’s order. A second option is to bring suit to impeach the will. If a year elapses, the claimant is barred by the statute of limitations. However, for incapacitated persons and minors, the period may not begin to run until the period of incapacitation ends (or the minor turns 18). In addition, in cases of fraud or duress, the statute may be extended until the claimant knew or should have reasonably known that fraud occurred.

    About the Author

    An attorney and founder of ScrofanoLaw, a general practice law firm in Washington, D.C., Joseph Scrofano has been writing on legal issues since 2008. He holds a Juris Doctor from the Washington College of Law, a Bachelor of Arts with special honors from the University of Texas and a master's degree in international affairs from American University's School of International Service.