The probate process begins with the appointment of a representative for the estate. This executor or administrator must gather the decedent’s assets, pay his debts, sell property if necessary, and distribute any remaining assets to the beneficiaries named in the decedent’s will or to his heirs as set forth by Virginia's intestate laws if there is no will. Along the way, the executor must meet certain interim deadlines, but no final deadline governs how long the entire process must take. For example, unlike many states, Virginia does not have a deadline for creditor claims. Instead, the executor must ask the court to set a deadline and hearing date for claims in each case.
Inventory of Assets
One of the executor’s first duties is to inventory the decedent’s assets to establish the value of the estate and keep the beneficiaries informed. The executor must file this initial inventory with the Commissioner of Accounts within four months of the date he qualified as the executor. The inventory must include a list of the decedent’s personal property, accounts held at financial institutions and real estate. The court clerk can waive the filing of the inventory if the estate is valued at less than $15,000.
In Virginia, a surviving spouse has the right under state law to take an elective share of the estate instead of the share he would otherwise receive under the terms of the decedent’s will. The elective share is intended to prevent a surviving spouse from becoming destitute when a spouse dies and leaves everything to someone else. Generally, estates cannot realistically close before six months after the decedent’s death because the surviving spouse has the right to make her claim for an elective share within that six months. Courts can grant an extension for a spouse to file the elective share claim.
The decedent’s family likely relied upon him for support, so Virginia permits the surviving spouse and minor children to make a claim for a family allowance. This allowance supports the family while the estate is being settled, but the family cannot receive more than $18,000 from the estate without court permission. The allowance can be paid in a lump sum or in monthly payments, but the family must make the claim within 12 months of the decedent’s death. In addition to the family allowance, the surviving spouse of a decedent can also claim an exempt property allowance within 12 months of the decedent’s death. Exempt property includes up to $15,000 worth of household furnishings, vehicles, appliances and personal items. If the decedent did not have a surviving spouse, his minor children can claim this allowance.
Virginia requires executors to file an accounting with the court 16 months after he qualifies for his position. The accounting is a detailed record that includes a list of income and expenses for the estate. If the estate remains open, the executor must file an updated accounting every year after he files the initial accounting. When the executor closes the estate, he must submit a final accounting at that time.