Estates and Wills
The purpose of this information is to better inform the general public of procedural matters involved in the administration of estates. Nothing contained herein is intended to advise anyone as to legal remedies for a particular circumstance. Circuit Court Clerks and their Deputy Clerks cannot render legal advice.
NEW: The Roanoke County Circuit Court Clerk's office now has Real Estate Records On-Line, along with other real estate related documents, via Secure Remote Access (SRA) provided by Virginia's Judicial System web-enabled "Records Management System". This information includes Deeds and Land Records, Marriage Licenses, Wills and Fiduciaries, Judgments, Financing Statements and General Miscellaneous documents.
Specific procedural questions may be answered by calling this office. If you have a problem involving the legal interpretation of Virginia statutes pertaining to estates, you may wish to contact an attorney licensed in the Commonwealth of Virginia.
Wills probated in the Office of the Clerk of Circuit Court of Roanoke County are fully searchable in the Public Records Room on the second floor of the Roanoke County Courthouse.
Questions and answers about the administration of estates
What terms are involved in the administration of estates?
The decedent is the deceased (i.e., the person who left the estate). A decedent has died testate if he or she has left a valid will. If a person dies intestate (without leaving a valid will), the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and who will, therefore, receive the decedent's property.
The person who the Court appoints to administer the estate after the decedent's estate is called an executor if specified in the will or a personal representative if no executor was specified. Executors and personal representatives are also referred to generically as administrators or fiduciaries. Other people involved in the administration of estates include the Commissioner of Accounts ( a local person appointed by the Circuit Court to oversee the administration of estates), the Circuit Court Clerk and his or her Deputies and the Circuit Court Judges.
The will (last will and testament) is a legal document drawn up by a person and/or his or her attorney to specify how a person's property should be distributed and who should administer the affairs of the estate.
To probate a will is to officially prove it as the authentic and valid will and testament of the deceased and admit it to record. Qualification and appointment of a personal representative may or may not accompany probate. If a decedent owns real estate in multiple jurisdictions in Virginia, the will should be probated in the jurisdiction where he or she resided and then an authenticated copy recorded in the other jurisdictions. If real estate is owned in another state, an exemplified copy of the will must be probated in that state.
How long does it take to probate a will or appoint a personal representative on an intestate's estate?
The average appointment time is approximately 1 hour. The length time can also vary depending on the number of potential personal representatives to be appointed, the degree of cooperation that exists between them, their familiarity with the estate, whether or not surety is required on the bond, the accessibility of the subscribing witnesses and other factors.
What taxes and fees are associated with probate?
The state probate tax is 10 cents per $100 of the estate value at the time of death.
The "local probate tax" is 3.33 cents (one third of 10 cents) per $100 of the estate value at the time of death.
The recording fees for a will and List of Heirs are as follows: 1-10 pages $14.50, 11-30 pages $28.50, 31 pages and above $48.50 and $1.50 microfilm charge.
The qualification fee is based on the value of the estate.
The transfer fee will be charged for any real estate taxed in the name of the decedent.
The final federal and state income tax, personal property tax and estate tax returns must be filed for the deceased and the estate as applicable. Generally, federal and state estate taxes are only due if the gross estate (including life insurance and all property) exceeds the amount on the schedule. For more information on taxes, contact the Internal Revenue Service and the Virginia Department of Taxation.
Under the Taxpayer Relief Act of 1997, the amount which may pass tax free is increased. The schedule under the new law is:
|
Year of Death |
Effective Exemption |
|
1998 |
$ 625,000 |
|
1999 |
$ 650,000 |
|
2000 and 2001 |
$ 675,000 |
|
2002 and 2003 |
$ 700,000 |
|
2004 |
$ 850,000 |
|
2005 |
$ 950,000 |
|
2006 and thereafter |
$1,000,000 |
Is it always necessary to have someone qualify as a personal representative on a decedent's estate?
Qualification is not always necessary.
It is necessary to probate an estate when the decedent has solely held assets; that is, assets which do not have a joint or co-owner with rights of survivorship, a beneficiary (on the security or account, not in the will) or a pay on death designee. Assets include: real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities.
If the decedent died with a will, the following will be needed:
the original will;
the death certificate;
witnesses to the will or depositions of witnesses, unless the will is self-proving;
if the will is self-proving, you do not need to bring the witnesses to the will or depositions of the witnesses;
a named Executor residing outside of Virginia who wishes to be appointed as Executor must bring the name of a Virginia resident to the appointment to be designated as a Registered Agent. Virginia Code Section 26-59 governs which procedure to follow;
the approximate dollar value of the solely-owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia, which must pass through probate;
the names, ages and addresses of the heirs-at-law. The heirs-at-law are not necessarily the beneficiaries of the will. Heirs-at-law are determined by kinship to the deceased and are set by Virginia law;
if the Executor named in the will does not wish to serve, they must submit a notarized renunciation letter. If the named Executor is deceased, a death certificate is required;
cash or check to pay fees.
Who has jurisdiction to qualify administrators on a decedent's estate in Virginia?
The Circuit Court Clerks and Deputies thereof may qualify personal representatives.
Where should I go to qualify as a personal representative on someone's estate?
Go to the Circuit Court Clerk's Office of the jurisdiction:
Where the decedent had a known place of residence, or, if none;
Where the decedent owned real estate, or, if none;
Where the decedent died or owned any property.
The Office of the Clerk of Circuit Court of Roanoke County is located in the Roanoke County Courthouse, on the second floor.
What information must I have available at the time of qualification?
If the decedent left no will, the following will be needed:
the death certificate;
names, ages and addresses of heirs-at-law. The heirs-at-law are determined by kinship to the deceased and are set forth in the Code of Virginia;
an Administrator residing outside of Virginia who wishes to be appointed personal represented must bring a Virginia resident to the appointment to either co-qualify or be designated as a Registered Agent; Virginia Code Section 26-59 governs which procedure to follow;
if the decedent was married at the time of death, preference is given to the surviving spouse, as Administrator. The spouse may relinquish the duties of Administrator by submitting a notarized written statement which states his or her intent not to qualify as Administrator;
if the decedent was not married at the time of death, a person seeking to become the Administrator must wait 30 days from the date of death to qualify as Administrator. It is possible to qualify prior to the thirty days by receiving notarized written statements from the majority of the heirs-at-law designating the individual as the Administrator;
the approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia, which must pass through probate;
cash or check to pay fees;
arrange for surety (security) on the bond unless it is waived by law.
If you should need to make an appointment, please call the Clerk of Circuit Court's Office at (540) 387-6206.
Where can I obtain Probate forms?
You can download the information from the Virginia State Courts website.
Is this all I need to know about administering estates?
No. There are over 200 sections in the Code of Virginia that deal solely with the administration of estates. You should contact the Clerk of Circuit Court's Office if you have any questions regarding probate procedure. You should contact an attorney if you have any questions regarding the legal interpretation of Virginia's estate laws.