What is probate, and why does everyone want to avoid it?
Upon death, a person’s estate often goes through a court-managed process called probate or estate administration, in which the assets of the deceased are managed and distributed. If a deceased individual had a properly drafted and funded revocable trust, it is likely that no court-managed administration is necessary. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate, as well as the rules and schedule of the local probate court. Typically, in Virginia, it takes about two years and costs about 5% of the estate.
In Virginia, generally, probate involves the following steps:
- Filing of a petition with the proper probate court, probate information form, and list of heirs
- Notice to heirs under the will and/or statutory heirs
- Affidavit of notice
- Petition to appoint an executor for the estate
- Inventory and appraisal of estate assets by the executor
- Payment of estate debt to rightful creditors
- Sale of estate assets, if appropriate
- Payment of estate taxes, if applicable
- Final distribution of assets to heirs
What information and documents should I gather before I contact an attorney to prepare a will?
- A questionnaire will be emailed to you after the initial call for an appointment. Be prepared to email the questionnaire 24 hours before the first meeting. The first meeting will be to plan your estate. We strongly request that both members of a couple attend the first meeting, as we do not hold a second meeting for the absent spouse.
- Your wishes for the distribution of your assets for discussion at the first meeting.
- Names of an executor and alternate executor — individuals you trust to manage the affairs of your estate after you pass.
- Names of guardians of your minor children — individuals you trust to care for your children.
- The nature of your assets and your approximate net worth — if your net estate, including life insurance, exceeds the current or future federal estate tax threshold, tax planning may be necessary to avoid substantial death taxes. How these assets are held.
- If your family member has a disability, include information about the nature of the disability and the long-term prognosis for that person.
- Your existing estate planning documents, including wills, powers of attorney, trusts, child support orders and guardianship decrees.