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What is Probate?

Virginia Estate Law - Probate

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

The word probate refers to the process of proving before a proper court that a document offered as the last will and testament of a deceased person is genuine.

The Virginia Circuit Court, or the clerk or deputy clerk of that Court, has jurisdiction over the probate of wills in the City or County where the decedent had a house or residence, and if none, where any real estate lies that is devised or owned by the decedent, and if none, the City or County where the decedent has estate assets.

The legal residence of a person residing in a nursing home or similar facility is presumed to be the same as it was before becoming a patient in the nursing home.

The original will must be presented to the clerk, who reviews the document to confirm that it meets the requirements under Virginia law for a valid executed and properly proven will and if so, the will is received for recordation by the clerk.

A valid will must be in writing, signed by the testator, or some other person in the testator's presence and at his or her direction. Additionally, the testator's signature must be made or acknowledged by the testator in the presence of at least two competent witnesses, who are present at the same time.

A will made wholly in the handwriting of a testator and signed by the testator is valid under Virginia law. This type of will is referred to as a holographic will. The handwriting of the testator must be established by two disinterested witnesses at the time of probate.

A will may be self proving if a properly executed affidavit is attached with the will. The clerk will accept a self proving will for probate without further proof by witnesses.

If the will is not self proving, at least one of the two witnesses signing the will must appear and state under oath that the requirements for execution of the will as discussed above were met.

It may be very helpful to seek legal advice before probating a will. An attorney can review the will to determine if appears to be valid and if it is self proving.

An attorney can also advise you as to whether probate is necessary based on the circumstances of the estate (see the next section).

If the will is not self proving, an attorney can assist you with the requirements for witnesses, or if witnesses are not available, alternative procedures for probating the will.

Where the original will is lost or if there is a dispute over the true last will of the testator, an attorney can provide advice on appropriate actions.

Is Probate Necessary >>>

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