When Will Power Is Not Enough

One of the most common estate planning techniques is the Last Will and Testament.  However, if an individual passes assets at death by Will, usually someone needs to qualify before the Circuit Court in the jurisdiction in which they died.  This process is called Probate.  In Virginia, probate is supervised by private attorneys appointed by the court.  These attorneys are known as Commissioners of Accounts and are paid from assets in the estate.  Every city or county in the Commonwealth have a Commissioner of Accounts who are responsible for supervising the administration of estates, whether or not there is a Will.  If there is a Will, the person named in the Will, known as the Executor, manages the estate and is supervised by the Commissioner of Accounts.  If there is no Will or the individual dies without naming an Executor, the court will appoint an Administrator.  The Administrator is also supervised by the Commissioner of Accounts.    

The Probate process generally involves the filing of an inventory of the assets within four months of qualification.  Then every year thereafter, the Executor or Administrator needs to file accountings on the income and receipts and payments from the estate until the final accounting is approved and the estate is closed.  The probable process generally takes a minimum of six months and on an average takes a year to 18 months to complete.  Most folks need to hire an attorney to help them navigate the Probate process. 

To avoid probate, an individual would need to use an alternative technique.  The easiest is the small estate affidavit, which can be used on estates of $50,000 or less.  To get custody of the asset(s) the individual(s) or Trustee(s) entitled to the estate may use an affidavit signed by all those entitled to receive the assets declaring that the total estate is less than $50,000.  Normally the Will, if any, has to be filed with the Clerk of Court, together with a list of the decedent’s heirs.  Once this is done the Small Estate Affidavit can be presented to those holding the assets.  The asset can be turned over to the individual(s) entitled to the asset.  If the affidavit is used no one needs to qualify as Executor or Administrator on the estate.

A new statute §64.2-602 of the VA Code provides another alternative to the probate process.  This law permits any bank or other institution holding descendant’s funds of $25,000 or less, to turn the account over to anyone claiming a right to the assets without the need for an affidavit.  Therefore, the person named as Executor in the Will, the next of kin where there is no will, or a Trustee can claim the account.