Frequently Asked Questions about
Estate Planning, Wills, Trusts, and Probate

• What is probate? – and should my family “avoid” it?

In a Virginia probate proceeding, the Circuit Court, generally acting through a court officer called the Commissioner of Accounts, oversees the process of validating the will, identifying the deceased person’s property, paying any debts and taxes due, identifying the proper heirs, and insuring that the property is distributed to them in the manner that the deceased person directed. The actual work is done by your executor (usually a relative or friend, or sometimes a financial institution, whom you nominate when you make your will) with the assistance of an attorney and often an accountant.

The Circuit Court requires your executor to report how every penny of your funds, and every significant asset that you owned, is applied to your debts or distributed to your heirs. Virginia law may hold your executor personally liable if such funds or assets are not properly applied, distributed, and safeguarded. Because of the stringency of the law's reporting requirements, executors often must expend significant amounts of estate assets to pay the fees of attorneys and accountants who assist them.

Not all of a deceased person’s property goes through the probate process. Life insurance, retirement accounts, “P.O.D.” bank accounts, and “joint tenancy with right of survivorship” and “tenancy by the entireties” property all pass directly to the named beneficiary or surviving joint tenant automatically, without any court confirmation. If the person created a living trust (sometimes called a revocable living trust or revocable inter vivos trust), any property held in the trust generally does not go through probate. The process of debt payment and distribution of property by trustees is similar to probate, however. And trustees, like executors, will require the assistance of attorneys and accountants more often than not.

“Let us live in as small a circle as we will, we are either debtors or creditors before we have had time to look around.” –Goethe