The term probate is a word you’re sure to hear when you talk with a trusts and estates attorney.The English word “probate” comes from the Latin word “probare” which means “to prove.” Probate is, indeed, all about proof – it refers to the process of presenting the will of a deceased person before a legal authority in order to establish that it is a valid legal document.
(A shout-out to all the word lovers: two other English words rooted in the Latin probare are (1) probe (to search into or examine thoroughly) and (2) probation ("a period of testing or trial of a person's conduct, character, qualifications")).
A person who has died is called a "decedent" in trusts and estates parlance. In Virginia, the "legal authority" before which the will of a decedent is presented is the Circuit Court of the city or county where the decedent resided when he died.
Typically, one of the deputy clerks handles all probate matters, and that person will be the primary point of contact throughout the probate process.
The clerk or deputy clerk at the Circuit Court requires the individual handling probate to provide the original will and evidence of the decedent's death (typically, a death certificate). He or she then reviews the document to verify that it meets the requirements under Virginia law for a (1) validly executed and (2) properly proven will.
As to whether a will is "properly proven": a will with a properly executed affidavit attached to it will by accepted by the clerk without an appearance by the witnesses who saw the will executed. For wills without such an affidavit, at least one of the two witnesses who signed the will needs to appear and state under oath that the requirements for execution of the will were satisfied.
If the will was validly executed and is property proven, then the will is recorded and the individual who is probating the will is asked to estimate the value of the probate assets located in Virginia and owned by the decedent at the time of death. For estates over $15,000, a probate tax will be collected by the Clerk based on a rate of 10 cents for every $100 of value.
In a future posting, we will explore the difference between probate assets (property) and non-probate assets.
