Probate & Estate Administration

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Go Directly to Probate Appointment Request Form

Goal

We hope that the following information will help you and your family through the probate process during that difficult time of loss. Probate is the court process to transfer property owned by a person who dies to the persons who are supposed to receive the property.

Overview and Jurisdiction

The Code of Virginia grants the Clerk of the Circuit Court the authority to probate a will, appoint and qualify an Executor or Administrator for a decedent’s estate, appoint and qualify a court ordered or testamentary trustee, qualify a conservator and /or guardian for an incapacitated adult, and qualify a guardian for a minor’s estate. To probate a will (put it to record) and to qualify as an executor or administrator of a decedent’s estate, you must go to the Circuit Court Clerk’s Office in the County where the decedent lived at the time of death. If the decedent died in a nursing home or similar facility, then that person’s residence is presumed to be where he or she lived prior to becoming a patient at such home.

Resources

The personal representative (executor or administrator) of an estate is charged with many responsibilities, and it is the legal obligation of the representative to fully understand and discharge those duties. There are several resources available which help to further explain the probate process, which include:

• the Virginia State Bar: Guide to the Administration of Decedent’s Estates in Virginia
• the Virginia Circuit Court Clerk’s Association: Probate in Virginia
• the Dept. of Motor Vehicles: DMV Guide for Family Members and Friends of the Recently Deceased

Federal tax questions must be answered by the IRS. An attorney is not required to probate a decedent’s estate, but may be helpful to assist you with the intricacies of the process. Under Virginia law, probate clerks cannot give legal advice, answer legal questions or give advice on how to fill out the forms filed with the commissioner of accounts. If you have questions about laws regarding estate distribution or taxes, you can contact an attorney licensed in the Commonwealth of Virginia. The Virginia State Bar Association lawyer referral service can be reached at 1-800-552-7977.

Circuit Court Clerk’s Office Information

Probate appointments must be scheduled with the Clerk’s Office beforehand and usually take about an hour. The Circuit Court Clerk’s Office is located in the Henrico County Courts Building, 2nd floor, room 240, 4309 E. Parham Road, Henrico, VA 23228. Please complete the Probate Request Form for an appointment.

The probate division makes every effort to take appointments on time. Please allow an extra 10 minutes to park, pass through security, and come upstairs to the Clerk’s Office. Cell phones and other electronic devices are prohibited in the Courts building.

What to Bring to an Appointment

A. If the decedent died with a will, please bring the following information to your appointment with the Probate Clerk;

1. The original will and any codicils (not copies)
2. A certified copy of the death certificate
3. A valid photo identification
4. If the will is self proving, you do not need to bring the witnesses to the will or depositions of the witnesses to the will to your appointment. Otherwise, witnesses to the will or depositions of the witnesses are required.
5. The approximate dollar value of the solely owned assets of personal property (bank accounts, automobiles, stocks, bonds, etc.) and the fair market value of real estate in Virginia which must pass through probate. Needed for Probate Tax return form (Instructions)
6. Cash, check, debit or credit cards to pay the probate fees. An ATM machine is located on the first floor of the courthouse. A 2% transaction fee will be added to all credit card charges.
7. The names, address, and ages of the primary heirs at law. VA Code Section 64.2-200. (see List of Heirs below)
8. If the executor named in the will does not wish to serve, they must submit a notarized refusal letter or a Waiver of Qualification form. If the named executor is deceased, a certified copy of the death certificate must be provided. A letter from a physician is required if the executor cannot serve due to a medical incapacity.
9. A named executor who resides outside of Virginia who wishes to be appointed as an executor, must bring a Virginia resident with an ID to the appointment to be designated as a registered agent or to co-qualify, or bring a notarized consent form where the Virginia resident agrees to serve. VA Code Section 64.2-1426
10. Contact a bondsman. (see Fiduciary Bonds below)

B. If the decedent died without a will, please bring the following information to your appointment with the Probate Clerk:

1. A certified copy of the death certificate
2. A valid photo identification
3. The approximate dollar value of the solely owned assets for both personal property (bank accounts, automobiles, stocks, bonds, etc.) and the fair market value of real estate located in Virginia which must pass through probate. Needed for Probate Tax return form (Instructions)
4. Cash, check, debit or credit cards to pay the probate fees. An ATM machine is located on the first floor of the courthouse. A 2% transaction fee will be added to all credit card charges.
5. An administrator residing outside of Virginia who wishes to be appointed as Administrator must bring a Virginia resident to the appointment to either be designated as a registered agent or co-qualify, or bring a notarized consent form where the Virginia resident agrees to serve. VA Code Section 64.2-1426
6. The names, addresses and ages of the primary heirs at law. VA Code Section 64.2-200 (see List of Heirs below)
7. Contact a bondsman. (see Fiduciary Bonds below)

Note: For a list of person(s) having preference for appointment as an Administrator of Intestate Estates, see Virginia Code Section 64.2-502

Determining the legal heirs as defined in §64.2-200

• The surviving spouse, unless there are children of the decedent with someone other than with the surviving spouse, in which case, one-third passes to the surviving spouse and the remaining two-thirds is divided among all children.
• If no surviving spouse, all assets pass to the children and their descendants.
• If none, then all assets pass to the deceased’s father and mother, or the survivor.
• If none, then all assets pass to the deceased’s brothers and sisters or their descendants.

List of Heirs Form
List of Heirs Instructions

Fiduciary Bonds

The person appointed as an executor or administrator must give bond before performing their duties. The bond is a written promise that one will faithfully carry out his/her duties as a fiduciary and helps to protect the interests of the heirs, creditors, beneficiaries, and the Commonwealth as their interests pertain to the estate.

State statutes govern whether the bond is with or without surety. If the decedent’s will states that the personal representative shall serve “Without bond,” requiring “no bond,” or “waiving bond” then security is not required. For other circumstances please see Virginia Code Sections 64.1-121, 26-4, and 6.2-1003.

If neither the will nor Virginia law waive security on a bond, surety will need to be posted on the bond. Surety has the effect of insuring the bond should it become payable. Most often surety or security is obtained through a bonding company. The probate clerk will set the appropriate amount of bond during your appointment. *If surety is required on your fiduciary bond, it will be necessary for you to arrange for a bondsperson to be present at your appointment. You may also wish to contact your own insurance agent to see if they handle fiduciary surety bonds. Please find a list of certified bonding companies below, listed alphabetically:

Probate Fees and State Probate Taxes

The exact amount of the probate fees will be determined during your probate appointment. Basic fees vary depending upon the circumstances, however, fees range between $40-$60 with a will and $30-$50 without a will.  Additionally, state probate taxes depend upon the value of the probate assets, with an assessment of $1 per $1,000 value of probate assets. Probate fees may be paid by cash, check or credit card. There is a 2% convenience fee for credit card transactions.

Appointment of a Resident Agent

All non-Virginia fiduciaries must appoint an in-state resident to serve as resident agent to accept service of process or other notices on behalf of the estate. Before being appointed as resident agent, this individual must consent to the appointment in writing. Forms are available online at http://www.courts.state.va.us/forms/circuit/fiduciary.html.

After your Qualification as Executor or Administrator: Commissioner of Accounts

After you qualify as an executor or administrator, the probate clerk will give you instructions and forms that you will need to complete and send to the Commissioner of Accounts. The Commissioner is an attorney appointed by the Circuit Court who audits and makes sure that the inventories and accountings are done correctly and in a timely fashion, before the estate can be closed. Henrico County’s Commissioner of Accounts is Mark S. Shepard, Esq. His website and contact information are:

https://www.henricocommissionerofaccounts.com/
telephone#: (804) 346-4700 fax#: (804) 273-0840
physical and mailing address: 4114-A East Parham Road, Henrico, VA 23228
Commissioner of Accounts info packet

Small Estate Affidavits

A small estate affidavit can be used in lieu of probating a will and qualifying as a personal representative on the estate under certain circumstances. The value of the decedent’s estate as of the date of death cannot exceed $50,000. See Virginia Code Sections 64.2-600 and 601. Small Estate Affidavit

Probate of a Foreign Will

An exemplified copy of a will that has been probated or recorded outside of Virginia should be recorded in the Henrico Circuit Court Clerk’s Office, if the will involved land in Henrico County.

General Definitions from the VCCA Probate and Estate Administration Manual

Testate: dying with a will   

Intestate: dying without a will 

Fiduciary: general term used to refer to an executor, administrator or trustee; a person in a position of trust with respect to another’s property  

Executor: person named in will to administer the estate, who accepts the appointment by qualifying before the probate clerk 

Administrator: person appointed by and qualified by the probate clerk to administer the intestate decedent’s estate

Qualification: process whereby a person is appointed by the probate clerk to serve as the executor or administrator of a decedent’s estate 

Heirs: persons who would inherit the decedent’s estate if the decedent died without a will

Beneficiary: person or organization entitled to receive a portion of the estate 

Self proving will:  an acknowledgement of the testator and the affidavits of attesting witnesses made before an officer authorized to administer oaths

Disclaimer:  This website is for informational purposes only and is not intended to be legal advice.