Constitutional Corner – Clerk of Circuit Court

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faye_mitchell_new2By Clerk of Circuit Court

FAYE MITCHELL

The Clerk of Circuit Court in Virginia is elected to an eight year term and performs multiple duties that in many states are divided among several government offices.  The

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Code of Virginia lists over 800 separate responsibilities and duties for the Clerk, many of which are legally sophisticated and complex.

All of the responsibilities are important and none is more sensitive or emotional than Probate, Wills and Estate administration.  Upon the loss of a loved one there are many questions.  The following are a few of the frequently asked questions and brief explanations:

What is Probate?

Probate is the official proving and recording of the will as the authentic and valid last will and testament of the deceased.

Where should the will be probated?

The will should be probated in the circuit court of the city or county where the decreased resided.  The will should be probated where the decedent owned a home; or where the decedent owned any real estate; or if none, where the decedent died or has any estate.

Are appointments necessary for Probate?

Appointments are strongly recommended to allow time for the probate administrative process to be completed by the deputy clerk.  Without an appointment, parties may have lengthy wait time until the deputy clerk is available.  Appointments may be scheduled by calling the Clerk’s Office.

What does dying “testate” or “intestate” mean?

A person dies “testate” if he left a will.  One dies “intestate” if that person does not have a valid will at the time of death.  If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent’s property.

What should I take with me to probate a will or qualify on an estate?

The original will and certified copy of the death certificate must be taken to the Clerk’s Office of the Circuit court in the jurisdiction where the decedent lived.  It is recommended that an appointment be made with the deputy clerk.  You may be required to complete some forms; therefore, the person offering the will for probate or seeking to qualify should know the names, addresses, and ages of all the heirs and have available a list of all the assets owned by the deceased and the value of those assets.

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

If a person dies without a will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts and cost of administration):

  1. All to the surviving spouse, unless there are children (or their descendants) 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.
  2. If no surviving spouse, all passes to the children and their descendants.
  3. If none, then all goes to the deceased’s father and mother or the survivor.
  4. If none, then all passes to the deceased’s brothers and sisters and their descendants.
  5. (Further contingent beneficiaries set out in the Virginia statutes.)

What are the basic duties of an executor or administrator?

Perhaps the most important duty is to ascertain and take possession of the deceased person’s property over which the executor or administrator has responsibility or control.  The executor or administrator must see to the payment of debts of the deceased and the estate and the sale or distribution of property of the estate in accordance with the dictates of the will and the Code of Virginia.  Generally the executor or administrator must file a complete inventory and accounting of the estate and may be required to qualify with the Commissioner of Accounts.  The Commissioner of Accounts is a local person (generally an attorney) appointed by the circuit court to oversee and ensure that estates are properly handled.

What taxes are there to be paid?

At the time of the filing of the will the probate tax must be paid.  Generally $1.00 state probate tax per $1,000.00 value of the estate.  Clerk’s fees and cost of copies and certification may also apply.

As you may observe from this sampling of questions and brief explanations, the laws governing probate may often times be complicated and complex. This information is provided to present an overview of some basic probate procedures.  Citizens may consult an attorney and/or tax advisor for specific clarifications.  Pursuant to statute, the Clerk’s Office does not have authority to give legal advice.

Thank you for the privilege of serving and becoming a model for the Commonwealth of Virginia.  Please visit the Clerk of Circuit Court website at www.cityofchesapeake.net or contact us at (757)382-3000.

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