Virginia Probate Guide
If you've just lost someone and are facing the Virginia probate process — this guide walks you through what it costs, how long it takes, the exact filings Virginia requires, and whether you can avoid formal probate entirely.
Typical Timeline
12–18 months
Uncontested formal probate
Small Estate Threshold
$75,000
Small Estate Act Affidavit
Court
Circuit Court (with oversight by the Commissioner of Accounts)
Filing fee: $50–$500
Executor Commission
Reasonable fee
~$41,000 on a $1M estate
Probate is required when the decedent owned solely-titled probate assets over $75,000 or any real estate not held in a trust, joint tenancy, or under a TOD deed. Virginia uses a unique 'qualification' process where the executor is qualified by the Circuit Court Clerk and is then supervised by the local Commissioner of Accounts.
Virginia probate typically takes 12-18 months, driven by the 1-year creditor claim period from date of death and the Commissioner of Accounts' review of inventory and accountings. Contested estates can extend 2+ years.
Virginia's Small Estate Act Affidavit allows qualifying estates to skip formal probate.
| If the death occurred… | Small estate threshold |
|---|---|
| Current threshold under Va. Code § 64.2-601 (raised from $50,000 effective 2017) | $75,000 |
| Prior threshold pre-2017 | $50,000 |
Available when the value of the probate estate (personal property only) does not exceed $75,000. At least 60 days must have passed since death and no personal representative may have been appointed. Filed under Va. Code § 64.2-601 et seq.
Virginia uses 'reasonable compensation' under Va. Code § 64.2-1208, but each Commissioner of Accounts publishes a guideline fee schedule. The widely-used Fairfax schedule is 5% of the first $400K, 4% of the next $300K, 3% of the next $300K, and 2% over $1M, plus 5% of income.
Example: An estate valued at $1,000,000 would yield an executor commission of approximately $41,000.
Attorney fees:
Attorney fees are separately reasonable and reviewed by the Commissioner of Accounts. Typical attorney fees for uncontested probate run $3,000-$8,000.
Multiple co-executors:
Multiple co-executors share a single reasonable fee — Commissioners of Accounts allocate the total fee based on services performed, not by paying each executor a full commission.
Statute: Va. Code § 64.2-1208
Enter the estate's gross value to estimate statutory probate costs in Virginia.
Executor commission
Statutory (Va. Code § 64.2-1208)
$24,000
Attorney fees
Not statutory in Virginia — negotiated separately (hourly, flat, or % of estate, typically 2–4%).
varies
Court filing fee
Sliding scale $50–$500
$50+
Estimated statutory total
$24,050 + attorney fees
Estimate only. Excludes extraordinary executor fees, bond premiums, appraisal fees, publication costs, accounting fees, and Virginia-specific surcharges. Does not constitute legal or financial advice.
Bond is required by default. Surety may be waived by the Clerk if the estate is $25,000 or less, or up to $35,000 in the Clerk's discretion in other cases. The will can waive surety but not the bond itself.
Statute: Va. Code § 64.2-1411
Virginia has no state estate tax or inheritance tax. However, Virginia does impose a probate tax of 10 cents per $100 of estate value ($0.10/$100), with some localities adding up to 1/3 more. Estates of $15,000 or less owe no probate tax. Only the federal estate tax applies for transfer taxes — 2026 federal exemption is $15M individual / $30M married under OBBBA.
Virginia's modernized elective share under Va. Code § 64.2-308.3 (for decedents dying on or after January 1, 2017) gives the surviving spouse 50% of the marital-property portion of the augmented estate. The marital-property portion scales with the length of the marriage. Election must be made within 6 months of probate.
Virginia's Medicaid Estate Recovery program (DMAS) recovers from probate estates of recipients age 55+ who received long-term care. Virginia limits recovery to probate assets (not TOD/POD or trust assets) and exempts the home while a surviving spouse, minor child, or disabled child lives there.
The full Virginia executor checklist has 24 milestones: 5 specific to Virginia law (shown below — filings, forms, and court interactions tied to Virginia statutes) and 19 universal duties that apply in every state (expandable at the end of the list). The same item never appears in both groups.
File will and qualify as executor with the circuit court clerk
Present the will and qualify as executor (or apply for appointment as administrator) before the clerk of the circuit court in the city or county where the decedent resided. Virginia uses a commissioner of accounts system to oversee estate administration. For qualifying small estates (see the threshold section above), a small estate affidavit under Virginia Code Section 64.2-601 may be used.
Open an estate bank account
Obtain an EIN from the IRS via Form SS-4 and open a checking account in the name of the estate. All estate income and expense payments should flow through this account. Virginia's commissioner of accounts will review all financial transactions.
File inventory with the commissioner of accounts
Prepare and file an inventory of all estate assets with the commissioner of accounts within four months of qualification, as required by Virginia Code Section 64.2-1300. The inventory must include all real and personal property with date-of-death fair market values. The commissioner reviews the inventory for completeness.
File accounting with the commissioner of accounts
File an accounting (first and final, or annual accounts) with the commissioner of accounts within 16 months of qualification, as required by Virginia Code Section 64.2-1206. The commissioner reviews the accounting in detail and reports to the circuit court. If the accounting is approved, the commissioner files a report with the court.
Obtain court confirmation and close the estate
After the commissioner of accounts approves the accounting and the circuit court confirms it, the executor is discharged and the estate is closed. Close the estate bank account and retain financial records for at least five years.
Obtain certified death certificates
Order at least 10-12 certified copies of the death certificate from the Virginia Department of Health, Office of Vital Records. These are required by the circuit court, financial institutions, insurance companies, and government agencies.
Locate and review the will
Search for the decedent's original will and any codicils. Virginia follows its own probate statutes under Virginia Code Title 64.2. Any person having custody of a will must present it to the clerk of the circuit court in the city or county where the decedent resided. Virginia recognizes holographic wills if entirely in the testator's handwriting and signed.
Secure estate property and valuables
Immediately secure the decedent's residence by changing locks if necessary. Safeguard valuables such as jewelry, cash, important documents, firearms, and collectibles. If the home will be vacant, arrange for regular checks, maintain climate control, and notify the homeowner's insurance carrier of the vacancy. Secure vehicles, safe deposit boxes, and storage units. Document the condition of all property with photographs.
Receive qualification and Letters Testamentary or Administration
After the clerk qualifies the executor, a Certificate of Qualification (Virginia's equivalent of Letters) is issued. The executor must take an oath and post a bond unless waived by the will. Obtain multiple certified copies.
Notify the Social Security Administration
Report the death to the Social Security Administration at 1-800-772-1213 if the funeral home has not already done so. Benefits received after the date of death must be returned. Surviving spouses and dependent children may be eligible for survivor benefits.
Cancel services, subscriptions, and forward mail
Forward the decedent's mail through USPS to the executor's address or a secure location to capture bills, tax documents, and creditor correspondence. Cancel or transfer utilities (electric, gas, water, internet, phone), streaming services, gym memberships, magazine subscriptions, and other recurring payments. Notify the landlord if the decedent rented. Cancel the decedent's driver's license, voter registration, and passport to help prevent identity theft.
Notify creditors
Virginia does not require publication of a notice to creditors, but the executor should notify all known creditors in writing. Under Virginia Code Section 64.2-550, creditors must present their claims within one year of the decedent's death. The executor may also publish a notice to shorten the claims period.
Notify financial institutions
Send certified copies of the death certificate and Certificate of Qualification to all banks, brokerage firms, insurance companies, and retirement account custodians. Request date-of-death valuations.
File IRS Form 56 (Notice of Fiduciary Relationship)
File IRS Form 56 to notify the IRS that you are acting as the fiduciary (executor or administrator) for the decedent's estate. This establishes your authority to receive the decedent's tax information, file returns on their behalf, and correspond with the IRS regarding estate matters. File this form promptly after receiving Letters.
Maintain insurance and pay ongoing estate expenses
Review and maintain all insurance policies on estate property, including homeowner's insurance, auto insurance, and any umbrella liability coverage. Lapsed coverage during administration can expose the estate to significant liability. Continue paying ongoing obligations from the estate bank account: mortgage or rent, property taxes, HOA fees, storage unit fees, and essential maintenance. Keep detailed records of all payments for the final accounting.
Handle digital assets and online accounts
Identify and secure the decedent's digital assets, including email accounts, social media profiles, cloud storage, cryptocurrency wallets, online banking, and digital subscriptions. Most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which governs fiduciary access to digital accounts. Check the decedent's devices, password managers, and records for account credentials. Contact service providers to memorialize or close accounts as appropriate.
File claims against life insurance and benefits policies
File claims on all life insurance policies, accidental death policies, and any other insurance or death benefits payable to the estate or named beneficiaries. Provide certified death certificates and completed claim forms to each insurance carrier. Note that policies with named beneficiaries generally pass outside of probate directly to the beneficiary, but proceeds payable to the estate must be inventoried.
File final personal income tax return (Form 1040 and Virginia Form 760)
File the decedent's final federal income tax return (Form 1040) and Virginia individual income tax return (Form 760) for the period from January 1 through the date of death. Virginia imposes a graduated income tax. A surviving spouse may file jointly.
File estate income tax return (Form 1041 and Virginia Form 770) if applicable
If the estate earns more than $600 in gross income during administration, file federal Form 1041 and Virginia Fiduciary Income Tax Return (Form 770). The estate is a separate taxpayer.
File estate tax return (Form 706) if applicable
If the gross estate exceeds the federal estate tax exemption, file federal Form 706 within nine months of death. Virginia does not impose a separate state estate or inheritance tax. Form 706 may be filed for portability.
Review and pay valid creditor claims
Evaluate all claims presented within the one-year claims period. Pay valid claims from estate funds in the order of priority established by Virginia Code Section 64.2-528: costs of administration, funeral expenses, debts due the Commonwealth, debts with federal preference, and all other claims.
Distribute specific bequests
Distribute any specific gifts or bequests identified in the will, such as jewelry, heirlooms, specific dollar amounts, or particular assets to named beneficiaries. Obtain signed receipts from each beneficiary. Ensure adequate reserves are maintained for taxes, administration costs, and any pending creditor claims before making distributions.
Distribute residuary estate to beneficiaries
After all debts, taxes, expenses, and specific bequests have been satisfied, distribute the remaining estate assets to the residuary beneficiaries as directed by the will or Virginia intestacy law (Virginia Code Section 64.2-200). Virginia provides the surviving spouse an augmented estate elective share. The family allowance and exempt property rights also apply. Obtain signed receipts from all beneficiaries.
Close the estate bank account
After all distributions are complete and the final accounting is approved, close the estate bank account. Ensure all outstanding checks have cleared and no further transactions are pending. Retain all financial records for at least seven years for tax and audit purposes.
If the decedent owned Virginia real estate but was domiciled elsewhere, an ancillary qualification is required in the Virginia Circuit Court for the county/city where the property is located. The foreign executor typically files an authenticated copy of the will and qualifies in Virginia.
Most Virginia estates close in 12-18 months. The 1-year creditor claim period from date of death is the main driver, plus Commissioner of Accounts review time. Contested estates or those with real estate sales can extend 2+ years.
Virginia charges a probate tax of $0.10 per $100 of estate value (plus possibly a local add-on) and Circuit Court filing fees of $50-$500 depending on county and estate size. Executor commission typically follows the Fairfax schedule (5% on first $400K, scaling down). Attorney fees commonly run $3,000-$8,000 for uncontested estates.
Virginia's Small Estate Act allows an affidavit when the probate estate (personal property only) does not exceed $75,000. At least 60 days must have passed since death and no personal representative may have been appointed.
Virginia does not require an attorney, and many simple qualifications are handled by the executor with the Circuit Court Clerk's help. Larger estates with real estate, business interests, or family conflict almost always benefit from counsel, particularly because the Commissioner of Accounts will scrutinize the inventory and accountings.
Yes. Common tools include revocable living trusts, joint tenancy with right of survivorship, tenancy by the entirety (between spouses), Transfer on Death deeds (Va. Code §§ 64.2-621 to 64.2-638), POD/TOD accounts, and beneficiary designations.
Virginia does not impose a strict number-of-days deadline for filing a will, but practical realities (creditor claims, family conflict, the 6-month elective share window from probate, and the 1-year creditor claim period from death) make prompt qualification important.
No state estate tax or inheritance tax. Virginia does impose a small probate tax of $0.10 per $100 of estate value (estates under $15,000 are exempt). Only the federal estate tax applies for transfer tax purposes — 2026 federal exemption is $15M individual / $30M married.
Yes. Virginia adopted the Uniform Real Property Transfer on Death Act (Va. Code §§ 64.2-621 to 64.2-638). A properly executed and recorded TOD deed transfers Virginia real estate outside probate.
This page is informational, not legal advice. Probate rules, thresholds, fees, and tax exemptions change. For your specific situation, consult a licensed Virginia probate attorney.