When someone dies with a relatively small amount of property, Virginia law may allow the people who inherit it to collect it without completing the full probate process. If the deceased person’s probate estate is worth no more than $75,000 and no one has requested or received appointment as the estate’s personal representative (executor or administrator), you can typically complete estate administration using a small estate affidavit in Virginia. The small estate procedure in Virginia can avoid the need for full estate administration, thereby simplifying and streamlining the process.
A probate attorney can help you determine whether an estate qualifies for a small estate affidavit and identify what property the estate involves, how each asset transfers, and who has the right to receive it. A.R. Pike Law Firm PLC helps families evaluate those questions and guides you through completing and filing the appropriate court and transfer documents. As a veteran-owned firm rooted in Lynchburg, we provide attentive legal guidance to clients throughout Virginia.
What Is Probate?
Probate is the legal process of administering a deceased person’s estate. The word also refers to determining the validity of a will, but you still probate estates without wills. During formal estate administration, the clerk appoints an executor named in a will or an administrator if there was no will, no one named as executor, or the named executor is unwilling or unable to serve in the position.
The executor or administrator becomes the estate’s personal representative. They:
- Gather and value probate property,
- Resolve enforceable debts and taxes,
- Distribute the remaining property, and
- May be required to file an inventory and accountings with the local Commissioner of Accounts.
You use the probate process to transfer probate assets after a person dies. Some assets are non-probate, such as:
- Property titled with survivorship rights,
- Accounts with payable-on-death beneficiaries, and
- Life insurance payable to named beneficiaries.
Because those assets have an effective legal method of transferring ownership built in, you do not need probate to transfer them. An attorney can determine whether each asset your loved one owned must transfer through probate.
What Is a Small Estate Affidavit in Virginia?
In some cases, you can transfer a person’s probate assets without completing full estate administration. A small estate affidavit, a sworn statement that you fill with specific details about your loved ones, allows you to do so. The affidavit grants you the legal authority you need to transfer the deceased person’s property without requiring the court to appoint an executor or administrator. It allows you to transfer their personal estate, such as:
- Bank and credit union accounts,
- Brokerage accounts,
- Securities,
- Tax refunds,
- Money owed to the deceased person, and
- Tangible belongings.
You do not transfer real estate using the affidavit, and real estate does not count against the Virginia small estate limit. An attorney can help you determine how to transfer real estate.
How Do You Use the Small Estate Procedure in Virginia?
To use the small estate procedure in Virginia:
- The entire personal probate estate must be worth no more than $75,000;
- At least 60 days must have passed since the person died;
- No application to appoint a personal representative may be pending or granted;
- The deceased person’s will, if one exists, must have been admitted to probate;
- The person claiming the asset must be entitled to it under the will or Virginia inheritance law; and
- All known successors must complete the affidavit.
Depending on the circumstances, successors may be individuals who receive something in the will, those who receive under state law in the absence of a will, or, at times, both. The affidavit also designates one or more successors to manage the transfer process for the group.
The $75,000 limit applies to the value of the deceased person’s entire personal probate estate as of the date of death. Your attorney can help determine date-of-death values, distinguish probate property from property that transfers directly, and identify everyone who must sign the affidavit for it to be valid.
How Do You Complete and Use the Affidavit?
The Supreme Court of Virginia provides the official Small Estate Affidavit, Form CC-1685, online. Your attorney can help you complete and use it, which generally requires you to:
- Identify all personal probate property and determine its value on the date of death;
- Review the will or Virginia inheritance law to identify every successor;
- Submit the will to the appropriate circuit court clerk for probate if one exists;
- Wait until at least 60 days have passed since the death;
- Complete Form CC-1685 with information about the deceased person, the assets, and each known successor;
- Have all known successors sign the affidavit before a notary, clerk, or deputy clerk; and
- Present the affidavit and any supporting records requested by the asset holder.
The successors ordinarily present the affidavit to the institution or person as evidence that they have authority to change the property’s ownership rather than file it to open an estate proceeding. Your attorney can prepare or review the affidavit, coordinate signatures, provide requested records, provide guidance on how to use the complete affidavit, and help probate a will with the proper circuit court clerk.
When Can You Request Property Without an Affidavit?
The affidavit is the usual way to request personal property from a bank, brokerage, business, or other person that holds property belonging to the deceased person. Virginia law provides another option when a particular account, payment, or other asset is worth $35,000 or less.
Once 60 days have passed, you may ask the person or organization with the property to release it without an affidavit if no one has requested or received an appointment as the estate’s personal representative. You must be entitled to receive the property under the will or Virginia inheritance law.
The bank or other person may grant your request, but Virginia law does not require it to release the property without an affidavit. An attorney can determine whether you are likely to succeed at transferring property using this method.
Talk to A.R. Pike Law Firm PLC About Simplified Probate in Virginia
The appropriate probate procedure depends on what the deceased person owned, how the property was titled, and who may receive it. A.R. Pike Law Firm PLC can help you classify and value the property, identify the successors, determine whether the estate qualifies for simplified probate in Virginia, and complete the necessary steps. Contact our veteran-owned Lynchburg firm to discuss a Virginia small-estate transfer.
Legal References Used to Inform This Page
To ensure the accuracy and clarity of this page, we referenced official legal and other resources during the content development process:
- Code of Virginia § 64.2-601.
- Code of Virginia § 64.2-602.
- Virginia’s Judicial System, Circuit Court Fiduciary Forms.
