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What is a Probate Attorney?

by | June 15, 2020 | 0 comments

What is a probate attorney, and do you need one in Virginia?

If you’ve ever lost a loved one, you’ve probably been through the probate process. Probate is a formal legal process that recognizes whether a will is valid and appoints an executor. This executor administers the estate and distributes assets to the beneficiaries.

Not all wills, nor all assets, trigger the probate process. Probate occurs when the will involves real estate. Some assets, like life insurance policies, go directly to the beneficiaries without going through probate.

Depending on your loved one’s estate, you may never need a probate attorney. However, a probate attorney will certainly help everything go more smoothly. A probate attorney can handle creditors, issues with taxes, and issues with beneficiaries. Probate attorneys can also ensure the execution of your loved one’s will follows the timelines for your state. 

In this post, the attorneys at Manassas Law Group will help answer your questions about exactly what a probate attorney does and when you may need one. 

What is Probate in Virginia?

Before we dive into Virginia probate attorneys, let’s talk about probate. As we mentioned earlier, probate is a judicial process where a court formally verifies a deceased person’s will as a legal document. Once the courts establish authenticity, they will then grant the executor the power to administer the estate. The executor will have the power to “step into the shoes” of the deceased to settle their affairs. 

The probate process includes locating and determining the value of the person’s assets, paying their final debts and taxes, and distributing their estate to their beneficiaries. 

Obviously, a deceased person cannot own property. Thus, when a person dies, all of his or her property must pass to someone else. Essentially, the probate process will legally define what the estate entails, as well as who the different parts of the estate will pass to. 

The probate process also enables someone to contest a will. This can happen if someone believes they have a more recent will from the deceased, or if someone objects to the appointed executor.

Not every estate will need to go through the probate process. We’ll talk more further below about which estates will go through probate. 

What Does A Virginia Probate Attorney Do?

A probate attorney is a valuable resource to the executor of an estate. A probate attorney can help the executor of an estate with tax deadlines, outstanding debts, and the distribution of assets.

It’s entirely possible to handle estate planning yourself. However, not everyone is comfortable with this, and if you make a mistake, you will be held liable, under Virginia law. There are tax deadlines to consider, creditor notices, and Medicaid reimbursements. All of these things, or any combination of these things, may or may not apply in any specific case. 

Probate attorneys aren’t just valuable resources to executors. A beneficiary of an estate can also hire a probate attorney, especially if they have reason to mistrust the executor. 

Probate attorneys can help deal with commercial real estate as well as residential real estate. They can also provide direction when multiple heirs disagree about what to do with a piece of real estate.

When Do I Need A Probate Attorney?

An estate will usually go through the probate process if:

  • No valid will to name an estate executor exists
  • Problems arise with an existing will
  • No beneficiaries 
  • A valid will requires probate to facilitate debt payments and ownership transfers.

Also, many banks also require a succession or probate process before they allow transfer of bank accounts.

For real estate concerns, a good rule of thumb is that if the decedent owned land or had more than $100,000 of assets, you’ll have to go through probate.

Again, just because you are going through the probate process does not mean you need a probate attorney. But the advice of a probate attorney can ensure that all creditors and beneficiaries receive their property quickly and efficiently.

You will not need to go through probate if the deceased had a transfer-on-death deed or a living trust. If a piece of real estate is in joint tenancy with a right to survivor-ship, the law does not require probate. 

If you are the surviving spouse of the deceased in Virginia, courts will determine which property is separate and which is owned by both spouses. Virginia is an “equitable distribution” state. This means that courts will attempt to make a fair division of marital property, upon death or divorce.

Contact Manassas Probate Attorneys Today

The probate attorneys at Manassas Law Group have years of experience in probate. If you are in the Manassas area and have questions about Virginia’s probate policy, call the Manassas Law Group at 703-361-8246

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