Estate Administration

Estate Administration Attorneys in Winchester, Virginia

When a person dies, someone must settle their estate through the estate administration process — and the individual responsible is often designated for this purpose in the will. These responsibilities include taking an inventory of their property and assets, assessing their value, paying debts and taxes, and distributing any remaining property to named beneficiaries.

Probate is the legal process that determines the validity of a will in court and administers the distribution of the estate after a person’s death. If you have been given these responsibilities in a will, the administration process can feel overwhelming.

Regardless of the size of the estate, at McCarthy & Akers, PLC, in Winchester, Virginia, our experienced attorneys can help you navigate the intricacies of probate, probate court, and estate administration, drawing upon more than two decades of experience. Let us help you save money and time, while fulfilling the deceased’s desires for their beneficiaries.

For family members seeking to avoid the difficulties of estate administration altogether, we administer many estates in and around Winchester in their entirety, acting as the personal representative throughout the entire process. Let us represent you in probate court, handle any disputes, and fulfill all legal obligations during this emotional time. At McCarthy & Akers, we make choosing a legal partner easy. Contact us today to schedule a free consultation.

Key Takeaways Regarding Estate Administration in Winchester, Virginia

• By law,  executors (also known as personal representatives and fiduciaries) of wills must properly administer the deceased’s estate. This effort includes locating all properties, creating an inventory, paying all taxes and debts with the estate’s money, and distributing the remaining assets to beneficiaries.
• Although state law does not require the personal representative to be a professional lawyer or an accountant, they must fulfill their duties with the utmost integrity, including managing the finances, collecting money to pay all debt and tax obligations, locating each beneficiary for the distribution of assets, and confirming all assets of the deceased.
• Wills must go through probate, a public legal process that can have a high cost and take over 12 months to complete.
• McCarthy & Akers in Winchester, Virginia serves the Shenandoah Valley and provides personalized guidance and support throughout the probate process, representation in probate court, and administration of estates in their entirety, if preferred, giving loved ones peace of mind during a time of mourning.
• Strategic and comprehensive planning can help minimize the assets that must undergo probate and allow for the private and direct distribution of assets to beneficiaries. A trusts and estates attorney from McCarthy & Akers can help individuals in the Shenandoah Valley plan for the future.

Estate Administration: Duties of Executors or Court-Appointed Administrators

• Accept Responsibility: Following the validation of the will, accept responsibility for managing the estate.
• Take Inventory: Identify, catalog, and appraise all estate assets to determine their value.
• Pay Debts and Taxes: Pay all of the estate’s obligations such as debts, claims, taxes, funeral expenses, outstanding medical bills, or loans.
• Distribute Assets: Distribute the remaining assets to the beneficiaries named in the will. If the decedent did not have a will, state intestacy laws determine the distribution process.
• Closing the Estate: After fulfilling all legal duties, formally request the court to close the estate.

Probate & Estate Administration in Winchester, Virginia

Probate legally validates a deceased person’s (the decedent’s) will. Once confirmed as the authentic last will and testament of the decedent, the will becomes a public document, accessible to anyone.

Following the validation of the last will and testament, estate administration begins. During this part of the legal process, the decedent’s assets are managed and distributed according to the terms of the validated will. This process involves settling the decedent’s debts or tax obligations and giving each beneficiary their designated inheritance.

Breaking Down the Probate and Estate Administration Process

The probate process moves through multiple stages in an effort to accomplish an orderly distribution of assets. However, it can incur a significant cost as it moves through the following stages:

Probate – Validation of the Last Will and Testament

• Beginning the Process: The personal representative presents the original last will and testament and a certified copy of the death certificate to the circuit court in the jurisdiction where the decedent resided.
• Validating the Will: The court reviews the last will and testament to confirm its authenticity and compliance with Virginia law.

How Long Does Virginia Probate Take?

The duration of probate depends on the complexity of the estate, the efficiency with which the personal representative or administrator fulfills their duties, and any dispute resolution efforts that may be needed if someone challenges the last will and testament. On average, the probate process in Virginia could range from several months to a couple of years.

Are Executors/Personal Representatives Paid for Their Services in Northern Virginia?

Executors can accept compensation for their services, typically ranging from 2.5% to 5% of the total estate value. However, this percentage may vary depending on the complexity of the estate and the specific terms outlined in the deceased’s will.

Executors should keep accurate records of activities and secure court approval before accepting compensation. Failure to adhere to these guidelines can lead to disputes and potential legal issues.

What Happens When Someone Dies Without a Last Will and Testament in Virginia?

In situations where the deceased did not leave a last will and testament, “intestate succession” applies. Without a last will and testament specifying the decedent’s wishes, state law determines the manner in which the assets will be distributed.

For example, in Virginia, assets might be divided among a surviving spouse, children, or other close relatives, depending on the specific circumstances. The absence of a will can sometimes complicate the probate process, underscoring the urgency of consulting a knowledgeable law firm for guidance.

Is It Possible to Bypass Probate in Virginia?

Although validating a last will and testament is a requirement under Virginia law, the ensuing administration can extract a high cost and demand a significant amount of time. Because it’s a public process, it does not offer privacy for grieving families.

However, with strategic planning, individuals in Shenandoah Valley can minimize the assets required to undergo probate so they can be distributed more privately and efficiently to beneficiaries.

Trust Options in Virginia

As an experienced attorney for trusts and wills from McCarthy & Akers can attest, wills form the foundation of comprehensive estate plans. However, trusts can also play a pivotal role.  In Virginia, a trust, such as a revocable living trust, is not considered part of the deceased’s personal estate. When the settlor (the person creating the trust, also known as the grantor) dies, the named trustee can distribute the assets privately and directly to the beneficiaries, without undergoing probate.

Trusts can be revocable or irrevocable. Revocable trusts, also known as living trusts, can be amended or canceled by the settlor during their lifetime. By contrast, irrevocable trusts cannot be amended or canceled, once established. Consult a family trust attorney at McCarthy & Akers to discuss your unique circumstances, needs, and goals.

Life Insurance and Retirement Accounts

Life insurance policies and retirement accounts with named beneficiaries will disburse funds directly to these beneficiaries upon death, directly excluding them from probate.

Real Estate Transfer-On-Death Deeds

In Virginia, property owners can use transfer-on-death deeds, allowing property to transfer to named beneficiaries upon the owner’s death without undergoing probate. While these strategies can streamline or bypass much of the probate administration process, aligning them with your overall goals is important.

Consulting attorneys with an in-depth understanding of Virginia’s statutes pertaining to estate planning and real estate can provide clarity and help you make informed decisions about your assets and your beneficiaries’ future.

Joint Ownership With Rights Of Survivorship

Assets like real estate or bank accounts owned jointly will automatically pass to the surviving owner upon one’s death, eliminating the need for these assets to go through probate administration.

Payable-On-Death (POD) And Transfer-On-Death (TOD) Designations

Many financial instruments, like bank accounts and brokerage accounts, allow for POD or TOD designations. Following the account holder’s death, these assets transfer directly to named beneficiaries, bypassing probate administration.

Gifting Assets

Gifting assets while you’re alive reduces the size of your estate, meaning there are fewer assets to process during probate administration. However, this method comes with tax implications and IRS gifting limits. Work with the guidance of a knowledgeable attorney when gifting assets.

Small Estate Procedures

Virginia has a small estate exemption. If the value amounts to $50,000 or less, the estate can undergo a simplified probate process.

Differences Between Wills and Trusts

Wills and trusts are two distinct estate planning tools serving different purposes. A will is a legal document that outlines how a person’s assets will be distributed after their death, while a trust is a legal entity that holds and manages assets for the benefit of designated beneficiaries.

Wills must pass through probate, a public process administered by the court that can take several months to a year to complete, with the court charging the estate a fee before beneficiaries can accept their inheritance. Wills also allow a parent of minor children to appoint a legal guardian or guardians.

A trust, on the other hand, bypasses this legal process, sparing your loved ones public scrutiny, time delays, and court fees.

Wills	Trusts
Become effective upon death	Can be effective during lifetime or after death
Require probate process	Avoid probate process
Public record	Remain private
Appoint guardians for minor children	Cannot appoint guardians

 

Should I Include Powers of Attorney (POA) in My Estate Planning?

A POA is a crucial component of a comprehensive plan. With this legal document, you can appoint a trusted individual to make financial and health care decisions on your behalf if you become incapacitated. Establishing a power of attorney directs the fulfillment of your wishes and the protection of your loved ones, even if you cannot make decisions and verbalize them yourself.

Power of Attorney	Description
Financial Power of Attorney	Grants the agent authority to manage your financial affairs.
Health Care Power of Attorney	Allows the agent to make medical decisions on your behalf.
Durable Power of Attorney	Remains in effect even if you become incapacitated.

 

Establishing a Living Will

As a knowledgeable lawyer for trust and will can attest, establishing a living will is a critical aspect of planning. A living will, combined with a health care power of attorney, becomes part of an advance medical directive, allowing someone to outline their healthcare preferences in the event of incapacitation. In a living will an individual can specify the types of medical treatment they do or do not wish to receive, towards ensuring compliance with their wishes even if they cannot communicate them verbally.

In Virginia, a living will must be signed in front of two witnesses unrelated to the individual or healthcare providers. This vital document outlines an individual’s preferences regarding life-sustaining treatments, such as artificial nutrition and hydration, ventilator support, and resuscitation efforts. By clearly articulating your healthcare preferences in a living will, you can alleviate the burden on your loved ones and healthcare providers, providing clarity and guidance during critical moments.

Consulting an estate planning attorney is an essential step to preparing a living will that complies with Virginia laws and accurately reflects your wishes. When you establish a legally valid living will, you gain peace of mind knowing that your healthcare preferences will be respected and upheld in any unforeseen circumstances.

Legal Instruments in Estate Planning	Description
Wills	Outline the distribution of assets after death.
Trusts	Manage assets for the benefit of designated beneficiaries.
Powers of Attorney	Appoint trusted individuals (agents) to make decisions on behalf of the individuals creating the POAs (principals).
Living Will	A document that enables an individual to specify their preferences regarding medical intervention. A health care power of attorney and a living will comprise an advance medical directive.

 

Should I Seek Legal Advice for Help Settling an Estate in Northern Virginia?

Although it’s not required, if you’re the personal representative in a decedent’s will in Northern Virginia, seeking legal advice from a law firm that focuses on wills and probate is a wise decision. From dealing with the distribution of real property and other assets to potential inheritance disputes, inventorying assets, and managing probate, being a personal representative comes with significant responsibilities.

Because fiduciaries are legally obligated to act in the best interests of the estate and its beneficiaries, any breach of this duty can lead to legal action and penalties, including:

1. Removal from Position: If found to have breached their duties or acted unlawfully, they may be removed from their position by the court, which has the authority to appoint a new one to take over the responsibilities.
2. Legal Action: Beneficiaries or other interested parties can take legal action against a personal representative who has broken the law during estate administration. This may involve filing a lawsuit to hold them accountable for their actions and seek damages for any losses incurred.
3. Liability for Damages: If found to have violated the law, they may be held personally liable for any damages caused, which could involve repaying misappropriated funds, covering financial losses, or compensating for harms due to their actions.
4. Criminal Charges: In cases of serious misconduct or fraud, they may face criminal charges for their illegal actions. Criminal prosecution can lead to fines, penalties, and even imprisonment depending on the severity of the offense.
5. Loss of Inheritance Rights: If a fiduciary is listed among the beneficiaries and found to have acted unlawfully, they may forfeit their rights to the inheritance. This law serves as a deterrent against fiduciaries taking advantage of their position for personal gain.

McCarthy & Akers Offers Assistance with Probate in Winchester and Throughout the Shenandoah Valley

Legal issues surrounding estate administration are complex. If you have been given the responsibility of settling a loved one’s estate, you may be feeling overwhelmed and worried about facing a lawsuit, despite your best efforts.

At McCarthy & Akers, we’re the advocates you can trust to help you address these challenges. Whether you seek guidance and legal counsel as you fulfill these obligations or would like us to handle the administration on your behalf, we’re ready to help. We have been proudly serving people just like you for over 16 years.

Our law firm handles all aspects of probate, including filing necessary paperwork, communicating with beneficiaries, and engaging in dispute resolution when necessary. We honor the deceased’s wishes by fulfilling their instructions for the distribution assets outlined in their last will and testament.

Call us at (540) 722-2181(540) 722-2181 or complete our online form to schedule a consultation. With offices in Winchester, Strasburg, Woodstock, Front Royal, Manassas, and Warrenton, we’re conveniently located to serve you.

Trust McCarthy & Akers to be your partner in estate administration and planning for the future.