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Remember that "probate" refers to the process of proving and recording a decedent's will with the proper court.
"Qualification" (discussed in the next chapter) refers to the qualification with the court of a personal representative, either an executor or administrator, to administer the decedent's estate.
If the decedent left a will at time of death and owned real property solely in his or her name, the will should be probated to establish title in the names of the persons (devisees) receiving the real property under the will. The probated will establishes of public record, their ownership of the real property.
A decedent's will should also be probated if the decedent owned personal property solely in his or her name, unless the personal property can be transferred to the intended persons under a number of Virginia statutes that generally apply to smaller estates. This is discussed further under the Chapter on Qualification.
If, though, real estate will pass by survivorship to a spouse or other person under the terms of the deed of ownership, and if personal property will pass by survivorship or can be transferred under the law to the proper parties without probating the will, then it may not be necessary to probate the will.
Probate of a decedent's will is not required by law if title and delivery of the decedent's assets will properly occur without probate of the will. It is important to note, though, that fraudulent concealment or destruction of a will is a felony under Virginia law.
A decedent certainly may have had it in mind when making their will that it be proven and probated as their last will and testament. Additionally, probating the will may also avoid suspicion by beneficiaries of the estate that may arise if the will is not probated.
Considerations as to the necessity and advantages of probating a decedent's will should be carefully reviewed based on the circumstances of each case.
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