Probate is the process by which a deceased person’s estate is divided and distributed to his or her heirs or beneficiaries. This process is started by a qualified person being made the executor or administrator of the estate. In cases in which there is a will, this person is named to serve as the executor.
In Cases With No Will:
Any individual who is related to the decedent may petition the court to be the administrator of the estate. It is not uncommon that there may be more than one person who petitions to be the administrator. In those cases, the court must determine between the petitioning parties who should serve in that capacity.
The executor or administrator must provide to the court an accounting to list all of the assets which the decedent had at death and who the heirs or beneficiaries are. In a case where the decedent had a will, the executor makes distributions of the assets to the named beneficiaries and provides an account to the court as to what was distributed and to whom. In a case without a will, the administrator must distribute the assets to those individuals who would receive as heirs according to the Code of Virginia.
The administrator cannot make any distributions contrary to the code without written direction through a valid will prepared by the decedent. Sometimes the only way for the assets to be divided properly is to sell some of the assets and then divide the proceeds between the heirs and beneficiaries.
Also, an heir or other interested party may seek to challenge a will that has been presented through probate. It may be that the document is fraudulent or has been tampered with. It may also be that it was created by the decedent while under undue influence by another party. Such an action will seek to preserve the assets from waste or distribution until such time that the decedent’s wishes, if there were any, can be determined.