Virginia Beach Probate & Trust Administration Lawyer
Probate is the court-supervised distribution of a person’s assets after he or she has passed away. It is a time-consuming, frustrating, public and needlessly expensive process. You can probably tell we aren’t big fans of probate, and many of the estate planning services we offer at The Law Office of Angela N. Manz are geared toward avoiding or minimizing probate by removing assets from the probate estate through various means, such as living trusts. Even when probate can’t be avoided altogether, our attorneys can help the process go as smoothly as possible by providing practical advice and legal expertise to estate executors, administrators and beneficiaries. If you have been designated the personal representative of an estate in probate, you don’t have to go it alone, nor should you. The Law Office of Angela N. Manz can help. Contact our experienced Virginia Beach probate & trust administration lawyers today.
Understanding Probate in Virginia
Probate is the legal process that ensures the proper distribution of a deceased individual’s assets in accordance with their will (or state law, if no will exists). In Virginia, the probate process is overseen by the Circuit Court in the county or city where the deceased individual lived. While every case is unique, the probate process generally follows these key steps:
- Initiation: The process starts when the executor named in the will presents the will, death certificate and other required documents to the Circuit Court. If no will exists or no executor is named, the court appoints an administrator, also known as the estate’s Personal Representative. Initiating probate in Virginia requires filing a petition to open probate and a petition to appoint an executor or administrator.
- Notice: The heirs named in the will are notified that a probate case has been opened. If there is no will, notice is given to the statutory heirs under Virginia’s laws of intestate succession.
- Asset Collection: The executor/administrator gathers all the deceased’s assets and provides a detailed inventory to the court. Many assets must be appraised as part of this process to determine their value.
- Debt Settlement: Any outstanding debts of the estate are paid off from the estate. Negotiations or litigation might be required to resolve any disputed claims with creditors of the estate.
- Sale of Estate Assets: Depending on the terms of the will and debts owed by the estate, some assets might need to be sold as part of the probate process.
- Payment of Estate Taxes: Any taxes owed by the estate must be paid, and a final estate tax return must be filed.
- Asset Distribution: After all debts and taxes are paid, the remaining assets are distributed according to the will. If no will exists, assets are divided based on Virginia’s intestacy laws.
Trust Administration in Virginia
Trusts, including revocable living trusts and various kinds of irrevocable trusts, have the advantage of transferring property without necessity of probate. Nevertheless, trusts must still be administered properly to ensure trustees fulfill their fiduciary obligations and beneficiaries receive their due according to the trust provisions. While probate pertains to assets not protected by a trust, trust administration refers to managing and distributing assets held in a trust. This process is generally outside the purview of the court, making it a private affair between the trustee and the beneficiaries. The core steps of trust administration include:
- Notice: Upon the death of the trust settlor, the trustee must notify all beneficiaries and keep them informed about the trust’s status.
- Asset Management: The trustee takes responsibility for all assets, ensuring they are maintained, invested, or sold as per the trust’s terms.
- Taxation: The trustee must ensure that any trust-related taxes are paid in a timely fashion.
- Final Distribution: Assets are disbursed to beneficiaries according to the trust’s stipulations.
At The Law Office of Angela N. Manz in Virginia Beach, we have the experience to efficiently administer your trust by working closely with your existing fiduciaries, insurance professionals, accountants and other trusted advisors.
Virginia Probate & Trust Administration FAQs
Answers to Frequently Asked Questions About Probate and Trust Administration in Virginia Beach
If you’ve just been named the executor of an estate, you have a lot of duties thrust upon your shoulders. Likewise, if you are the successor trustee of a trust, you can suddenly find yourself plagued with a host of duties and fiduciary responsibilities (meaning you could get sued if you mess them up). It’s natural to feel anxious about how to proceed, but know that help is available. You can and should seek the advice and assistance of seasoned professionals like probate and trust attorneys to guide you and perform the more specialized tasks.
To help you ease into your role, we’ve provided some answers below to the questions we get most often from clients in Virginia Beach as they work their way through probate or trust administration. If you have other questions or need help with a particular matter, call The Law Office of Angela N. Manz for help from an experienced Virginia Beach probate and trust administration attorney.
How long does probate take?
Probate is not a swift process; in fact, it can be frustratingly slow, especially if you are an heir eager to receive your inheritance or an estate executor keen on putting the process behind you. Many of the steps involved in probate simply take time, and little can be done about it. These steps include:
- Identifying, locating and notifying heirs
- Notifying creditors about the probate and giving them an opportunity to present claims
- Paying or resolving debts and claims against the estate
- Locating and appraising property
- Selling assets to pay debts and taxes of the estate or effectuate the terms of the will
Probate therefore could realistically take six months or a year to complete, or even longer if the estate is especially complex and has a lot of assets, or if disputes arise over the terms of the will or its validity. Thoughtful estate planning helps minimize the size of the probate estate, which reduces the overall time probate will take.
How much does probate cost?
Probate isn’t cheap, which is another reason to engage in careful estate planning to minimize the assets that will have to go through probate. The larger the estate, the higher the cost. For example, property must be appraised, which incurs an appraisal fee. Real property must be kept up to maintain its value, incurring landscaping and housekeeping fees, and personal property might need to be stored, incurring storage fees. Insurance premiums must also be kept up on probate assets for the duration of the process.
Then there are attorney fees, which might be billed hourly or at a flat rate, depending on the work involved. The estate’s personal representative (executor) is also entitled to a fee for all the work they do, and this fee can run as high as five percent of the value of the estate. Finally, there will be court costs and filing fees.
The good news is that all of these costs are paid out of the estate, so neither the executor nor anyone else is personally responsible for paying them. The bad news is that probate costs reduce the value of the estate and can impact the inheritance that heirs to the estate would otherwise receive. Engaging in estate planning to reduce probate means more money for your heirs, which is what you (and they) want.
Can probate be avoided altogether?
With proper estate planning, you can remove all or most of your assets from the probate estate, which minimizes the time and costs of any probate proceedings, allowing your heirs to receive more of your estate and get their inheritance more quickly. Popular tools to avoid probate in Virginia include revocable living trusts, joint ownership of property, payable-on-death designations on bank accounts, transfer-on-death registration for stocks and bonds and vehicles, transfer-on-death real estate deeds, and funding vehicles with beneficiary designations like insurance policies and retirement plans.
Avoiding probate is an important goal of estate planning, but it’s not the only one. Consult with an estate planning and probate attorney to minimize probate while making sure all your needs are being met and goals achieved.
What Is a Small Estate Affidavit?
This process allows the beneficiaries of your estate to bypass probate and collect their inheritance by filing an affidavit, which is simply a legal document signed under oath in the presence of a notary. This procedure is available for small estates valued at $50,000 or less, and other requirements apply as well. Beneficiaries cannot collect real estate with a small estate affidavit, but Virginia law allows for other means to transfer real property outside of probate.
What does a personal representative do?
The personal representative is named in the will to steer the estate through probate. If no one is named in advance, the court will appoint someone. A personal representative is an executor or estate administrator, but personal representative is the official term in Virginia. The personal representative has many tasks to perform. These include generating an inventory of the estate and filing it with the court, paying any outstanding debts owed by the estate (or litigating disputed claims), filing estate tax returns and paying taxes, notifying creditors and beneficiaries, and more.
A personal representative is a “fiduciary,” meaning they owe a duty to act in good faith and perform competently for the benefit of the estate and its beneficiaries. If you are an estate representative, you can and should work with probate attorneys, accountants, appraisers and other professionals as needed to make sure you fulfill your role properly. These costs can be paid out of the state, and failing to do the job properly could land you in legal hot water.
If I am serving as the personal representative of an estate, do I have to pay taxes on the fee I receive for serving?
A personal representative’s fee can be up to five percent of the value of the estate. That’s up to $50,000 for an estate valued at $1 million. And yes, that money counts as taxable income. Often, the primary beneficiary of an estate is also the personal representative. If that situation applies to you, it might make more sense to waive your fee and receive the same amount (or close to it) through your inheritance, which is not taxable (unless the estate is very large and exceeds the federal estate tax exemption). If you are worried about the tax implications of your fee, we suggest you talk it over with your accountant and probate lawyer to make an informed decision.
Contact The Law Office of Angela N. Manz for Help With Probate and Trust Administration in Virginia Beach
If you have just suffered the loss of a loved one and are faced with the prospect of dealing with the probate court or administering a trust, we invite you to contact our office today. We understand what you are going through and can guide you and fellow family members through either process with compassion and a minimum of stress.