Wills and Probate

Probate Process

Disclaimer: The purpose of this information is to inform the general public and is not legal advice or remedy.

Probate is done by appointment only. If you wish to schedule a probate appointment or have any questions please contact the Probate office. Appointments may take 2-4 weeks to schedule. To expedite matters, please email or fax a copy of the will, any codicils, and a copy of the death certificate to the Probate office.

You must also complete the Probate Packet form. Submit completed form with a copy of the Will (if there was one), a copy of the death certificate, the most recent assessment or tax bill for all property the decedent owned in Virginia and a List of Heirs.

The Small Estate Affidavit form can be used if the personal property (not real estate) of the estate does not exceed $50,000. This is not a Circuit Court Form and is not filed or returned to the Court. Specific procedural questions may be answered by calling this office. If you have a problem involving the legal interpretation of Virginia statutes pertaining to estates, you may wish to contact an attorney licensed in the Commonwealth of Virginia.

What to Bring to an Appointment

If the decedent died with a will, please bring the following information to your appointment with the Probate Clerk;

The original will and any codicils (not copies)
A certified copy of the death certificate
A valid photo identification
If the will is self proving, you do not need to bring the witnesses to the will or depositions of the witnesses to the will to your appointment. Otherwise, witnesses to the will or depositions of the witnesses are required.
The approximate dollar value of the solely owned assets of personal property (bank accounts, automobiles, stocks, bonds, etc.) and the fair market value of real estate in Virginia which must pass through probate.
Cash, check or credit card to pay the probate fees. An ATM machine is located on the first floor of the courthouse. There is a credit card fee.
The names, address, and ages of the primary heirs at law. VA Code § 64.2-200.
If the executor named in the will does not wish to serve, they must submit a notarized refusal letter or a Waiver of Qualification form. If the named executor is deceased, a certified copy of the death certificate must be provided. A letter from a physician is required if the executor cannot serve due to a medical incapacity.
A named executor who resides outside of Virginia who wishes to be appointed as an executor, must bring a Virginia resident with an ID to the appointment to be designated as a registered agent or to co-qualify, or bring a notarized consent form where the Virginia resident agrees to serve. VA Code § 64.2-1426
Contact a bondsman. (see Fiduciary Bonds below)

If the decedent died without a will, please bring the following information to your appointment with the Probate Clerk:

A certified copy of the death certificate
A valid photo identification
The approximate dollar value of the solely owned assets for both personal property (bank accounts, automobiles, stocks, bonds, etc.) and the fair market value of real estate located in Virginia which must pass through probate.
Cash, check or credit card to pay the probate fees. An ATM machine is located on the first floor of the courthouse.
An administrator residing outside of Virginia who wishes to be appointed as Administrator must bring a Virginia resident to the appointment to either be designated as a registered agent or co-qualify, or bring a notarized consent form where the Virginia resident agrees to serve. VA Code § 64.2-1426
The names, addresses and ages of the primary heirs at law. VA Code § 64.2-200
Contact a bondsman. (see Fiduciary Bonds below)

Note: For a list of person(s) having preference for appointment as an Administrator of Intestate Estates, see Virginia Code § 64.2-502

Fiduciary Bonds

Fiduciaries must be bonded. The bond is a written promise that one will faithfully perform his duties as a fiduciary (Executor or Administrator). The bond amount is set by the Probate Clerk. The bond issued on behalf of the estate helps to ensure that the person appointed properly administers the assets of the estate and helps to protect the interests of the heirs, creditors, beneficiaries, and the Commonwealth as their interests relate to the estate. State statutes govern whether the bond is with or without surety. The Probate Clerk will set the appropriate bond amount during your appointment. If a surety is required on your fiduciary bond, it will be necessary for you to arrange for a bondsperson to be present at your appointment. You may request a list of certified bonding companies from the Clerk’s Office or find them in the local telephone directory. Any out of state fiduciaries are required to have a bondsperson unless a Virginia resident is qualifying with them.

Appointment of a Resident Agent

All non-Virginia fiduciaries must appoint an in-state resident to serve as resident agent to accept service of process or other notices on behalf of the estate. Before being appointed as resident agent, this individual must consent to the appointment in writing. Forms are available online.

After Your Qualification as Executor or Administrator

The Commissioner of Accounts is a lawyer appointed by the Circuit Court Judge to oversee the actions of the fiduciaries and is responsible for reviewing and approving estate inventories and accountings. His staff can answer general questions on filing the required forms with his office. For technical questions, you will need to contact an attorney. Williamsburg-James City County’s Commissioner of Accounts is Thomas K. Norment, Jr., Esquire. His contact information is listed below:

Telephone #: 1-757-259-3850.

Mailing address: PO Box 6000, Williamsburg, VA 23188

Office address: 4801 Courthouse Street, Suite 301, Williamsburg, VA 23188.

Contact Us

Mary Fountain

Probate

Email

Phone: 757-564-2379
Clerk of Circuit Court

Physical Address
5201 Monticello Avenue
Suite 6
Williamsburg, VA 23188

5201 Monticello Avenue Suite 6 Williamsburg VA 23188

Directions

Phone: 757-564-2242
Civil Fax: 757-564-2328
Criminal Fax: 757-564-2329
Hours
Monday - Friday
8:30 a.m. - 4:00 p.m.
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FAQs

What terms are involved in the administration of estates?

The decedent is the deceased, i.e. the person who left the estate. A decedent has died testate if he or she has left a valid will. If a person dies intestate (without leaving a valid will), the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and who will therefore receive the decedent's property. The person who the court appoints to administer the estate for the decedent is called an executor if specified in the will or a personal representative if no executor was specified. Executors and personal representatives are also referred to generically as administrators or fiduciaries. Other people involved in the administration of estates include the Commissioner of Accounts (a local person appointed by the circuit court to oversee the administration of estates), the circuit court clerk and his or her deputies, and the circuit court judges. The will (last will and testament) is a legal document drawn up by a person and/or his or her attorney to specify how a person's property should be distributed and who should administer the affairs of the estate. The List of Heirs is a legal document prepared by the estate's administrator that lists the people specified by the will and/or by law who are eligible to receive distributions from the estate. A copy of a document is certified by a circuit court deputy clerk to indicate that it is a true and complete copy of the original. An exemplified copy also contains the official seals of the judges and clerk of the circuit court. To probate a will is to officially prove it as the authentic and valid last will and testament of the deceased and admit it to record. Qualification and appointment of a personal representative may or may not accompany probate. If a decedent owns real estate in multiple jurisdictions in Virginia, the will should be probated in the jurisdiction where he or she resided and then a certified copy recorded in the other jurisdictions. If real estate is owned in another state, an exemplified copy of the will must be probated in that state.

When should a will be probated, or, if there is no will, when should a personal representative be appointed?

Although there is no statutory schedule for probating a will or beginning estate administration, it is prudent to begin the estate process within one to three weeks after death.

Who inherits the property of an estate (person dying without a will)?

The distribution of property for an estate is governed by the laws of the Commonwealth of Virginia in effect at the time of death. After payment of funeral expenses, debts and cost of administration, the law provides for the following course of descents:

All to the surviving spouse, unless there are children (or their descendents) of someone other than the surviving spouse, in which case one third goes to the surviving spouse and the remaining two thirds is divided among all children.
If no surviving spouse, all to the children and their descendents.
If none, all to the decedent's father and mother or the survivor.
If none, all to the decedent's brothers and sisters and their descendents.

There are other contingent beneficiaries set out in the Code of Virginia.

How long does it take to probate a will or appoint a personal representative on an intestate's estate?

The probate process takes about 15 minutes if the paperwork has been completed correctly, no changes are made at the time of the appointment, or a surety bond is required. Please note each probate is unique and subject to specific factors which may prolong or decrease the time.

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