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Overview of Probate and Administration

When a loved one dies, you may be left handling probate and trust administration issues—and there’s a good chance you find yourself at a loss for what options are legally available to you. Probate and trust administration involves managing assets other than your own. Regardless of the hat you wear—executor or trustee—you are given significant legal duties and responsibilities. These roles’ requirements and obligations (and their limitations!) are sometimes surprising and counterintuitive. It’s not uncommon to find it taxing to manage your own life and meet these additional expectations.

A Promise Law probate lawyer can “lighten your load” by making sure you understand your role and counseling and supporting you in completing your duties.

You May Not Need Probate

The most important thing for you to know about probate for a decedent’s estate is that you might not need it. The second most important thing for you to know is that there are no takebacks once you get appointed as a decedent’s estate administrator. The only way out is through the process. We recommend you consult with an experienced probate lawyer before you get officially appointed to determine whether probate is required. You may also find it helpful to watch our 3 Biggest Mistakes in Probate video.

Probate Basics

Probate is the court-supervised process of settling a deceased person’s final financial affairs. Whether your loved one leaves a will or not, as the court-appointed personal representative—a term that covers people acting under a will as well as when the decedent died without a will—you are responsible for identifying and securing assets. After doing so, your first obligation is not to the beneficiaries (no matter how intensely they beseech you) but rather to pay the deceased person’s valid creditors in the proper amounts and the proper order. Not all creditors are created equal, especially if there is not enough money for all the deceased’s bills. Once you have settled all the estate debts, you can distribute what remains to the beneficiaries.

Personal representatives must also file an inventory with the court and annual accountings until the estate is closed. Unfortunately, Virginia’s formatting and reporting requirements are not straightforward: we have seen many intelligent and otherwise capable people fail to meet the court’s standards. Moreover, you can be financially liable for even unintentional errors.

Trust Administration

Trust administration is the management of assets on behalf of the person who created the trust. While still-living people may create trusts, there’s a good chance you’ve found your way here today because the person who created the trust you’re dealing with is deceased. Trustees have various duties and obligations, including collecting, managing, investing, and distributing assets held within the trust. Generally, trust administrators must provide accountings to beneficiaries upon request and share other important information with beneficiaries. Serving as a trustee is a significant responsibility compounded by the fact that not every trustee’s duty is written into the trust document itself. You have many obligations that include handling affairs with care and keeping thorough records of your actions. Different rules and specialized procedures must be followed based on the trust’s terms and assets, and not all of them are obvious. Failure to properly handle trust administration can lead to conflict and potential personal liability.

How Promise Law Can Help With Probate and Administration

If you’re unsure what you need or where to begin, contacting a probate lawyer is an important first step. We offer a free consultation to help you. First, our paralegal will guide you in gathering the information necessary to determine your options. Then, once we have the details about your circumstances, we assess whether you need administration at all or your next steps if you’re already in the administration process. Sometimes all you need is a bit of guidance, and you may not need our services. But sometimes, you know that you need expert help and guidance. If that’s the case, we work with you every step of the way to make sure your responsibilities and obligations are clear and you take the proper steps at the right time.

Probate FAQ

Below are some frequently asked questions about Probate & Administration.

Not necessarily! Whether you need probate (the court supervised process in which a deceased person’s assets are transferred to their beneficiaries) depends on the type of assets, how they were owned immediately prior to death, and the total value of the assets that the will controls.

We’ve worked with many families to untangle a mess that occurred because someone ran to the courthouse to be appointed as executor (the term is called “qualify” as executor) without first determining if that step is necessary. Qualifying on an estate when it is not necessary leads to unnecessary and avoidable time, expense, and court oversight. It might also jeopardize the inheritance of real estate.

An executor shoulders many duties, including providing notice to all heirs-at-law (those who would inherit if there was no will) and most beneficiaries, filing an inventory that lists specific assets and their date-of-death value, and preparing annual accountings until the estate is closed and the final accounting is approved. These filings have strict deadlines and the executor can be held personally liable for failing to meet them.

Other rules govern when and how assets may be distributed. If the estate appears to be insolvent (it has more debts than assets), the executor must strictly follow Virginia law that establishes a priority order for payment of debts and limits the amount that can be paid for certain items. Failure to comply to the letter of the law here can cost the executor dearly, including becoming personally liable to pay the omitted debts.

Generally, no. Exceptions are: (1) if the court rules that the change in beneficiary can be made, which is unlikely because under Virginia law wills are interpreted as if they were written immediately prior to death, or (2) all the beneficiaries who would be impacted agree to the change.

Yes…unless you waived your inheritance rights in a pre-marital or marital agreement, a surviving spouse can assert certain statutory claims and allowances against their deceased spouse’s estate. These claims and allowances must be filed within a specified timeframe or are lost forever. You must act as the law requires to file these claims and allowances; they are not automatically provided to you. If your spouse has died and you are concerned about your rights in the estate, you should consult with an estate administration attorney right away.

It depends! If your deceased spouse had no children that were not also your children, then you are the only heir-at-law who would inherit the probate estate. If your deceased spouse had any children who were not also your children (i.e. you are a blended family), then you are entitled to one-third of the probate estate, and all of your deceased spouse’s children share the remaining two-thirds. You can also file for claims and allowances to be paid by the estate and receive more money or property that way. Finally, you may be able to file for a share of the estate that is based on the length of your marriage. Determining how to proceed requires an analysis of the estate assets and debts as well as the assets that you individually own. These options are time sensitive and require action on your part. You should consult with an estate administration attorney right away.

If parents of minor (not yet 18 years old) children die, the court chooses a guardian to raise the children and a guardian of the minor’s estate to manage the child’s inheritance until the child turns 18 years old. The same person can fulfill both roles, or different people may be selected. Courts typically, but not always, appoint the guardian(s) nominated in the parent’s will. Any parent of a minor child should have a will that nominates the individual(s) the parent selects to serve to raise the parent’s children in the event of the parent’s untimely death. Because a will is the only place where parents can make this nomination, in the absence of a will, different family factions may battle each other to be appointed, adding stress, confusion, and additional delay and costs during this traumatic time.

Well, there are some formalities before you officially take the reins as trustee. But assuming you decide to serve, the first order of business is to identify and secure assets held in the name of the trust (or that pay on death to the trust). You must also look closely at the trust document to understand what you may or must do and statutory default rules governing a trustee’s authority and duties likely also apply. In other words, reading the trust document alone may not be enough. You should consult a trust administration attorney for guidance.

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