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Other Probate Issues

Virginia Estate Law - Probate

What is Probate?
Is Probate Necessary?
Virginia Probate Procedure
Other Probate Issues

Issues can arise that may make the probate process more complicated. Some are discussed below. In these instances it is recommended that you obtain the assistance of a probate and estate administration attorney.

Missing Witnesses. If the attesting witnesses to a will are out of state, deceased, or otherwise cannot be brought before the court, then alternative procedures may be required for probate of the testator's will. For witnesses out of state or unavailable, depositions may be obtained and filed with the court. If the witnesses are deceased, perhaps evidence from other witnesses to the execution of the will can be obtained.

Lost or Destroyed Will. The Clerk will only probate an original will, not a photocopy. If the original will cannot be found, a petition may be filed with the court seeking to establish, and if so ordered by the court, probate a lost or destroyed will. The petitioning party must prove by clear and convincing evidence that a legal will existed, the contents of the will, and that the will was lost or inadvertently destroyed, and not revoked or destroyed by the testator.

Bill to Establish or Impeach a Will. If a question is raised as to the validity of a will that has been probated, a bill to establish or impeach the will may be filed with the court by an interested party. The court may require that all documents that may constitute the will of the decedent be produced at the trial. Evidence is presented with a jury determining if any of the documents provided constitute the will of the decedent. The suit must be brought within one year of the date the first will was probated and must be brought in the court where the first will was probated. The one year statute of limitations is extended in the case of minors or incapacitated persons.

Probate of Later Will. There is no statute of limitations for probate of a later will (a will dated after a the date of a will already probated or perhaps no will was probated previously). The clerk or court will probate the later will. Although the probate of a later will does not by law affect a good faith purchaser of real property from the devisees under the previously probated will or intestate succession (if there was no prior will probated), it can affect the disposition of personal property based on the prior will or intestate distribution.

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