Virginia probate law comes in many different shapes and sizes. An executor's obligations largely depend on the amount of assets the estate has and the amount of liabilities the estate has. An estate can be split into three categories; insolvent estate, small estate, and large estate based on these characteristics. Each type of estate has their own tax liabilities and creditor issues that you need to be aware of.
If your relative owes more debt than the value of the estate, you have an insolvent estate. This can impact the probate of a will if there is valuable property that needs to be sold to satisfy the creditors. For example, if your relative has a significant amount of medical debt and also has a ferrari, then the ferrari may need to be sold to pay for the medical debt. This occurs even if the will says that the ferrari is to be given to a specific beneficiary.
There can be some limitations on the ability of an executor to handle the sale of the estate’s property. For example, if there is no will that grants the executor a power to sell real estate, the executor may need to petition the court for approval to sell any real estate to satisfy creditors.
Finally, various types of creditors are treated differently depending on the nature of the debt. This is called priority. Some creditors are supposed to be paid before others.
Virginia law makes it easier to probate estates that are valued below a certain threshold. If the value of the estate is below Fifty Thousand, which excludes some specific assets, then the estate may qualify for small estate administration. Virginia law requires you to file specific forms and follow specific procedures in order to allow for a small estate administration. When considering whether a small estate administration is appropriate, it is important to consult with a lawyer to determine which assets are counted towards the threshold value. The benefit of small estate administration is that it does not have as many administrative requirements and the timeline is much shorter.
In contrast with small estates, large estates can take a significant amount of time to probate. These are estates that are valued at more than Fifty Thousand. A typical estate may take as long as two years to fully probate depending on the complexity of the estate and the types of debts that need to be paid. Generally speaking, a commissioner of accounts, a public official, helps manage the probate of the estate. The commissioner is important to work with, as they have significant powers over the administration of the estate.
The commissioner is likely to require several accountings and inventories which outline the assets and liabilities of the estate. These documents must be filed timely, or the executor may be subject to certain penalties depending on the nature of the violation.
Why you need a probate lawyer.
No matter what type of estate you have, you need a probate lawyer. Failure to properly administer an estate may result in personal liability. For example, if you fail to pay a creditor or timely file an accounting or inventory, you may be on the hook for a significant amount of money. Consult with a lawyer if you have been appointed pursuant to a will to manage probate, or if you have elected to do so on behalf of a relative that died intestate. Finally, an executor is entitled to certain compensation.