Death and Dying are difficult topics to deal with for each of us.  But, some thoughtful planning for that event eases the transition for your loved ones and survivors.

 Basic estate documents which everyone should have prepared include: 

* Last Will and Testament – expresses your wishes for how to distribute your estate upon your death.
 * Power of Attorney for Financial Affairs – allows a loved on to take care of your financial matters while you are alive, but incapacitated.
 * Medical Directive and Natural Death Directive – allows a loved to make medical decisions for you should be become incapacitated.
 * Directive for Disposition of Remains - allows a loved one to control the disposition of the remains of a deceased person.

*Probate - "Probate" refers to the process of proving before a proper court that a document offered offered as the last will and testament of a deceased person is genuine.  The Court, or the clerk or the Register of Wills of that Court, has jurisdiction over the probate of wills in the City or County where the decedent had a house or residence, and if none, where any real estate lies that is devised or owned by the decedent, and if none, the City or County where the decedent’s estate assets.

The original will must be presented to the clerk, who reviews the document to confirm that it meets the requirements under the state’s law for a valid executed and properly proven will and if so, the will is received for recordation by the clerk.

A valid will must be in writing, signed by the testator, or some other person in the testator’s presence and at his or her direction. Additionally, the testator’s signature must be made or acknowledged by the testator in the presence of at least two competent witnesses, who are present at the same time.

The probate estate includes the assets (real property and personal property) which were held in the decedent’s name at death, and those which pass under the will.  This excludes two general categories of assets: jointly-owned property, and assets with a named beneficiary.

The probate process is designed to ensure your creditors are paid.  Thus, creditors of the estate have the opportunity to file claims against the estate and receive payment of those claims. After the administration fees and creditor claims are paid, the asset distribution takes place. The probate process can last anywhere from nine months to a year or more. A lawyer who is experienced in probate can navigate this sometimes difficult process for the family and executor of the estate.

In Virginia, real estate (which is not held jointly) passes directly to the beneficiaries named in the will, and is not part of the probate estate in Virginia unless the will authorizes the executor to sell it.  It is important to note that some of these items which are not part of the probate estate are counted as part of the taxable estate for Federal estate tax purposes.

Probate can be avoided with proper estate planning. A simple will does not avoid probate. However, a will coupled with the use of a revocable trust or the Uniform Non-Probate Transfer on Death Act would ensure your estate to pass outside of probate.

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