Probate: How to get started?

Posted on October 06, 2011 in Estate Planning, Personal Representation

Once you have decided that probate of the estate of a loved one is necessary, what do you do next?

First, you must decide who will serve as executor (if the decedent has died with a will) or administrator (if the decedent has died without a will). For guidance, you should first review the decedent’s will. Most wills will include a provision which appoints a particular person or particular people as executor. If the person who is appointed in the will does not wish to serve, there is the ability for someone else to serve as executor. However, in most jurisdictions, you will need to have the person who was appointed sign a document indicating that he or she declines to serve. If the decedent died without a will, you will need to consult the relevant sections of the Code of Virginia to determine who may serve as administrator.

Second, you will need to go to the probate (or wills and estates) department of the circuit court of the city or county in which the decedent was residing at the time of death to qualify as personal representative (the general term for an executor or an administrator). Most probate departments require you to make an appointment, though you can usually get in fairly quickly. When you attend this appointment, you will need to bring with you a list of the decedent’s assets, how they were titled, and their value as of the date of his or her death. You will also need to bring sufficient funds with you to pay any probate tax and fees.

Once you qualify as personal representative, you should immediately begin the task of collecting the decedent’s assets and identifying the decedent’s debts. As personal representative, you will be responsible for maintaining the decedent’s assets (with some exceptions) and paying the decedent’s debts (again, with some exceptions) until the estate is closed. If you have any questions about how to do this, you should absolutely consult with an attorney working in the area of estate administration because, as personal representative, you could be held personally liable for any mistakes made in the administration of the estate.