Virginia Petition for Probate

Introduction

Key Things to Know

1. 1

   Virginia has no probate court. The will is offered for probate before the circuit court clerk in the county or city of the decedent's known place of residence (Va. Code 64.2-443, 64.2-444). There is no statutory petition, and the courts' published probate forms do not include a petition form. Those forms include the Probate Information Form CC-1650, and any form the clerk requires controls over any draft application.

2. 2

   No one has authority over estate assets until the clerk qualifies the personal representative and a certificate of qualification issues. A named executor must still qualify, and should not distribute, pay heirs or sell property before then or before the creditor period ends.

3. 3

   The Virginia courts' probate guide says there is no set time frame in which a will must be probated or estate administration started, and recommends beginning within 30 days after death. If someone else holds the original will, ask the clerk's office how it can be presented.

4. 4

   If the will does not name an executor, or the executor refuses, fails to give bond or dies, administration with the will annexed goes to a residual or substantial legatee, and if that person does not apply within 30 days, to the person who would have been entitled had there been no will (64.2-500). Without a will, a sole distributee, or a distributee with written waivers from the others, may be granted administration during the first 30 days (64.2-502). Appointment is not guaranteed.

5. 5

   A nonresident individual may serve but must file written consent to service of process (Form CC-1610) naming the clerk or a Virginia resident agent, and surety on the bond is required unless a resident fiduciary qualifies at the same time or surety is waived (64.2-1426).

6. 6

   Within 30 days after qualification or admission of the will to probate, the personal representative must forward written notice (Form CC-1616) to the surviving spouse, heirs at law and beneficiaries, then record an affidavit within four months (64.2-508). Publishing creditor notice is optional. Where used, the claim period runs to the later of at least six months from first publication or 90 days after the notice is mailed or delivered to the claimant (64.2-508.1). A bond is required unless the will waives security for the nominated executor or all distributees or beneficiaries are the personal representatives (64.2-505), and the court or clerk can still require security on motion of an interested person.

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and Virginia has a small estate affidavit and a small-asset delivery procedure. See our small estate affidavit page for that route.

Virginia Requirements for Petition for Probate

• Circuit Court Clerk Probates and Qualifies

  The will is offered for probate in the circuit court of the county or city where the decedent had a known place of residence, and the clerk or a deputy admits wills to probate and qualifies personal representatives (Va. Code 64.2-443, 64.2-444). Virginia has no separate probate court.

• No Statutory Petition, Probate Information Form CC-1650

  Virginia has no statutory petition for probate and the courts' published probate forms do not include a petition form. Those forms include the Probate Information Form CC-1650. Any form the clerk requires controls over any draft application.

• No Set Time Frame to Probate

  The Virginia courts' probate guide says there is no set time frame in which a will must be probated or administration started, and recommends starting within 30 days after death.

• Priority to Serve

  Priority depends on whether there is a will. Without a named executor, administration with the will annexed goes to a residual or substantial legatee, with a 30 day window before it passes to the person entitled without a will (Va. Code 64.2-500). Without a will, only a sole distributee, or a distributee with written waivers from the others, may be granted administration during the first 30 days (64.2-502). Appointment is not guaranteed.

• Nonresident Fiduciary Consent, Form CC-1610

  A nonresident individual may serve but must file written consent to service of process naming the clerk or a Virginia resident agent, and surety on the bond is required unless a resident fiduciary qualifies at the same time or surety is waived (Va. Code 64.2-1426).

• Notice to Heirs and Beneficiaries, Form CC-1616

  Within 30 days after qualification or admission of the will to probate, written notice must be forwarded to the surviving spouse, heirs at law and beneficiaries, and an affidavit recorded within four months (Va. Code 64.2-508). Notice follows qualification.

• Optional Creditor Notice and Claims Period

  A personal representative may publish creditor notice once a week for two consecutive weeks in a newspaper in the city or county of qualification. Claims are due by the later of at least six months from first publication or 90 days after the notice is mailed or delivered to the claimant (Va. Code 64.2-508.1).

• Bond Required Unless Excepted

  The court or clerk requires security in an amount at least equal to the full value of the personal estate to be administered, unless the will waives it for the nominated executor or all distributees or beneficiaries are the personal representatives. An interested person may move to require security (Va. Code 64.2-504, 64.2-505).