Must a will be probated in order to make a small estate affidavit?

Full question:

About two weeks ago, I asked this question and did not get a clear answer of what to do. My husband died suddenly, and did not leave a will. The small estate form for Virginia takes it for granted that a spouse has awill to work with. What can I do to receive my husband's investment from an investment firm. They state they will send it to me when they receive a notarizeed small estate form, a death certificate, and a letter stating my claim. There was no will. Can the Virginia small estate form be modified to work when an individual died intestate?

Answer:

In our prior answer to you, our attorney outline the general principles involved in making a claim for small estate administration in Virginia. This is the typical procedure when someone dies without a will and his/her total assets are $50,000 or less. To collect that property, a small estate affidavit is executed by an interested party, so long as it has been more than 60 days since the death.

The relevant Virginia statute does not require a will to be filed prior to the affidavit being submitted. In many cases, a will exists and that is why the form you were reviewing contains that reference.

Please see #4 below:

§ 64.1-132.2. Collection of personal property by affidavit.

A. Sixty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent may make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:

1. The value of the entire personal probate estate, wherever located, does not exceed $50,000;
2. At least sixty days have elapsed since the death of the decedent;
3. No application for the appointment of a personal representative is pending or has been granted in any jurisdiction;
4. The will, if any, was duly probated and the list of heirs required by § 64.1-134 was duly filed; and
5. The claiming successor is entitled to payment or delivery of the property, and the basis upon which such entitlement is claimed.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

In Virginia, there is no specific deadline to file for probate after a person's death. However, it is advisable to initiate the probate process as soon as possible, typically within a few months. Delaying may complicate the distribution of assets and could lead to issues with creditors or heirs. If you are the executor or administrator, timely action helps ensure that the estate is settled efficiently.