Probate in Virginia: A Complete Guide

Virginia probate runs through the local Circuit Court Clerk's Office under the supervision of a court-appointed Commissioner of Accounts. It's a structured process with predictable timelines and modest fees — but the Commissioner's accounting requirements add formality that surprises many first-time executors. This guide explains every step.

Does Virginia Always Require Probate?

No. Assets that pass outside probate include those held in a revocable living trust, accounts with payable-on-death or transfer-on-death designations, life insurance and retirement accounts with named beneficiaries, real estate held with a Transfer-on-Death Deed, joint tenancy property with right of survivorship, and property held by spouses as tenants by the entirety.

The Circuit Court Clerk's Office

Virginia probate is opened in the Circuit Court Clerk's Office of the city or county where the deceased was domiciled at death. The Clerk's Office handles the qualification of the executor or administrator, issues Certificates of Qualification (Virginia's version of Letters Testamentary), and assigns the case to a Commissioner of Accounts for ongoing supervision.

How to Open Probate in Virginia

1. Bring the original will, a certified death certificate, a list of heirs (with addresses and relationships), and a preliminary list of estate assets to the Circuit Court Clerk's Office.
2. The Clerk reviews the will, administers the executor's oath, and issues Certificates of Qualification — typically the same day. You'll usually be required to post a surety bond unless the will waives bond.
3. The case is assigned to the Commissioner of Accounts for that locality, who supervises the inventory and accountings.

Small Estate Affidavit

If the entire personal estate is $75,000 or less (excluding real estate), Virginia allows a Small Estate Affidavit (Va. Code § 64.2-601) 60 days after death. The affidavit is presented directly to the institution holding the asset (bank, broker, etc.) — no formal probate is opened. Virginia raised this threshold from $50,000 to $75,000 in recent legislative sessions, so if you've seen the older $50,000 figure elsewhere, it's out of date.

Virginia Probate Tax and Fees

Virginia imposes a state probate tax of 10 cents per $100 of estate value (about $1 per $1,000, or 0.1%), under Va. Code § 58.1-1712. This tax does not apply to estates of $15,000 or less. Localities may add up to one-third of the state tax on top. Local Clerk's Office fees are modest — typically $25–$50 for filing, plus per-page fees for documents. There are no statutory attorney fees; rates vary by attorney.

The Inventory and Accountings

Virginia's Commissioner of Accounts system is its distinctive feature. Within four months of qualification, the executor must file an Inventory listing all probate assets at fair market value. Then, on each anniversary of qualification, the executor must file an Accounting showing every receipt, disbursement, and asset change during the period. The Commissioner reviews each filing and may require corrections. This continues until the estate is closed.

Creditor Claims in Virginia

Virginia does not have a single non-claim statute that cuts off all creditor claims at a fixed date. Instead, the personal representative is expected to identify known creditors, pay valid debts in the statutory order of priority, and use the Commissioner of Accounts process to document those payments. In practice, most personal representatives wait approximately one year before final distribution so that latent claims have time to surface, and the Commissioner of Accounts may decline to approve a final accounting if substantial debts remain unresolved. An experienced Virginia probate attorney can help analyze claim priority and whether to publish a Notice for Debts and Demands.

Intestacy in Virginia

If there is no will, Virginia's intestacy statute (Va. Code § 64.2-200) applies:

• Surviving spouse, and all children are also the spouse's children: Spouse inherits everything.
• Surviving spouse, and children from outside the marriage: Spouse takes 1/3; children share the remaining 2/3.
• No spouse: Children inherit equally; if no descendants, parents take next, then siblings, then more distant relatives.

Virginia Family Allowances

Virginia provides several allowances for the surviving spouse and minor children that come off the top before general creditors are paid, under Va. Code §§ 64.2-309 through 64.2-311:

• Family allowance (§ 64.2-309): up to $30,000 as a lump sum, or up to $2,500 per month for up to a year.
• Exempt property (§ 64.2-310): up to $25,000 in household furniture, vehicles, appliances, and personal effects.
• Homestead allowance (§ 64.2-311): $25,000, in lieu of (or topped up to) whatever the spouse or minor children receive under the will or intestacy.

These figures were increased in 2025 legislation, so if you've seen an older figure of $20,000 across the board, it's stale. Together, these allowances make small Virginia estates substantially more spouse-protective than they appear on paper.