Virginia Probate Process: Step-by-Step Guide
How to administer a Virginia estate under VA Code Title 64.2 — from qualifying before the Circuit Court Clerk through the Commissioner of Accounts final settlement and Order of Discharge
Virginia is one of the few states that uses a Commissioner of Accounts — a court-appointed officer separate from the judge who independently supervises all estate accounting. After qualifying before the Circuit Court Clerk, the Executor files all inventories and annual settlements with the Commissioner, pays the Commissioner's review fee, and must obtain the Commissioner's approval before the estate can close. This is mandatory for all estates that do not qualify for the Small Estate Affidavit.
Virginia Probate at a Glance
Overview: How Virginia Probate Works
Virginia probate under VA Code Title 64.2 involves two distinct oversight bodies: the Circuit Court Clerk (who accepts the qualification and issues Letters Testamentary) and the Commissioner of Accounts (who supervises all estate accounting after qualification). This dual-oversight system makes Virginia probate more structured — and more accountable — than most neighboring states.
Key Features of Virginia Probate
- Circuit Court — not a separate Probate Court: Virginia has 31 judicial circuits, each with a Circuit Court. Probate is handled by the Circuit Court Clerk's office in the circuit where the deceased was domiciled.
- Commissioner of Accounts: A court-appointed officer (VA Code § 64.2-1200 et seq.) who independently reviews all estate inventories and settlements. The Commissioner charges a fee (2–5% of estate income) and must approve accounts before closing.
- 1-year creditor period: Virginia's creditor period runs 1 year from qualification (VA Code § 64.2-528) — significantly longer than NC (3 months), SC (8 months), or TN (4 months).
- 4-month Inventory: Filed with the Commissioner of Accounts within 4 months of qualification (VA Code § 64.2-1300).
- First settlement due 16 months after qualification: The first annual settlement covers months 1–16 and is filed with the Commissioner.
- No publication required: Standard Virginia estates do not require newspaper publication of Notice to Creditors.
- May 1 tax deadline: Virginia income tax (Form 760 / Form 770) is due May 1, not April 15.
Determine Whether Probate Is Required
Before opening an estate in the Circuit Court, determine whether the estate qualifies for the Small Estate Affidavit or another non-probate transfer option.
Small Estate Affidavit (VA Code § 64.2-601)
If the total personal property probate estate is $50,000 or less and there is no real estate, the Small Estate Affidavit may eliminate the need for formal probate. No waiting period. Present the notarized affidavit directly to each asset holder. See our VA Small Estate Affidavit guide for full details.
Non-Probate Assets (Pass Without Court)
- Joint tenancy / tenancy by the entirety — passes to surviving owner
- POD/TOD accounts — passes to named beneficiary
- Life insurance and retirement accounts with named beneficiaries
- Revocable living trust assets
Probate Assets (Require Circuit Court)
- Real estate titled solely in the deceased's name
- Bank and investment accounts without beneficiary designations
- Vehicles without survivorship title
- Personal property and business interests without succession plans
Qualify Before the Circuit Court Clerk
Qualification is the formal act of accepting appointment as Executor before the Circuit Court Clerk. After qualification, the Commissioner of Accounts is assigned to supervise the estate.
Virginia Will Requirements
| Will Type | Requirements | Valid in VA? |
|---|---|---|
| Attested will (standard) | Written, signed by testator, signed by 2 witnesses | ✅ Yes |
| Self-proved will | Notarized acknowledgment — witness testimony not needed at probate | ✅ Yes (preferred) |
| Holographic will | Entirely in testator's handwriting, signed — no witnesses | ✅ Yes (VA Code § 64.2-403) |
| Electronic will | Not currently recognized | ❌ No |
Qualification Process
- File the will and application for probate with the Circuit Court Clerk in the circuit of domicile
- Submit original will and certified death certificate
- Pay the probate tax — $0.10 per $100 of the gross estate (minimum $1)
- Take the oath before the Circuit Court Clerk (qualify as Executor)
- Post bond if required (will may waive; Clerk may require for intestate estates)
- Receive Letters Testamentary — request 8 certified copies
- Note the Commissioner of Accounts assigned to supervise the estate
Virginia has 31 judicial circuits. Each circuit serves one or more counties or independent cities. File in the Circuit Court of the circuit where the deceased was domiciled at death. Find your circuit court at vacourts.gov. Virginia's 38 independent cities each have their own Circuit Court — the city of domicile (not the county surrounding it) is the correct filing location for city residents.
Notice to Creditors — 1-Year Creditor Period Begins
Virginia does not require newspaper publication of a Notice to Creditors for standard estates. The Executor must mail direct written notice to all known creditors. The creditor period is 1 year from the date of qualification.
Virginia's creditor period of 1 year from the date of qualification (VA Code § 64.2-528) is significantly longer than every neighboring state: NC (3 months), MD (6 months), WV (60 days from publication), TN (4 months), KY (6 months). This means no final distributions to heirs for at least 12 months after you qualify. Do not confuse this with the 16-month first settlement deadline — the creditor period and the settlement deadline are separate.
Notice Requirements
| Requirement | Details |
|---|---|
| Newspaper publication | Not required for standard estates |
| Direct written notice | Required — mail to all known creditors promptly after qualification |
| Creditor period | 1 year from date of qualification (VA Code § 64.2-528) |
| No-distribution rule | No final distributions before 1 year from qualification |
File Inventory with Commissioner of Accounts (4 Months)
The Executor must file an Inventory of all estate assets with the Commissioner of Accounts within 4 months of qualification (VA Code § 64.2-1300). The Commissioner reviews the Inventory and may contact the Executor with questions.
Inventory Requirements
| Asset Category | Required Information |
|---|---|
| Real property | Address, legal description, county tax assessment, FMV at date of death |
| Bank accounts | Bank name, account type, balance at date of death |
| Investment accounts | Institution, account type, value at date of death |
| Vehicles | Make, model, year, VIN, FMV (Kelley Blue Book) |
| Business interests | Entity name, ownership %, estimated value |
| Personal property (high value) | Jewelry, art, collectibles — appraisal recommended |
| Life insurance | Company, policy number, face value (if payable to estate) |
Unlike some states where the Inventory is filed with the court clerk and largely ignored, Virginia's Commissioner of Accounts actively reviews the Inventory. The Commissioner may send an inquiry if values appear low, assets appear to be missing, or if the estate's situation raises questions. Be thorough and accurate — include all probate assets with documented values.
Manage the Estate During Administration
During the 1-year creditor period, the Executor manages all estate assets, collects income, pays ongoing obligations, and maintains meticulous records — all of which will be reported in the annual settlement.
- Collect and deposit all estate income (interest, dividends, rents)
- Pay ongoing estate expenses (mortgage, insurance, maintenance)
- Keep separate accounting for all receipts and disbursements
- Evaluate and respond to creditor claims — do not pay disputed claims without verification
- If estate real estate needs to be sold, obtain Circuit Court approval if required
Pay Debts and Taxes
After the 1-year creditor period expires, evaluate and pay valid creditor claims. Virginia follows a priority order for payment of claims similar to other states:
Priority of Claims (VA Code § 64.2-528)
| Priority | Category |
|---|---|
| 1st | Costs of administration (court fees, Executor commissions, attorney fees, Commissioner's fee) |
| 2nd | Funeral expenses (reasonable) |
| 3rd | Family allowance (surviving spouse and minor children) |
| 4th | Debts owed to the Commonwealth of Virginia |
| 5th | Federal taxes |
| 6th | Debts secured by liens (mortgages) |
| 7th | All other creditors (unsecured) |
Virginia has no state estate tax and no inheritance tax. File the deceased's final Virginia Form 760 (individual income tax, due May 1) and Form 770 (fiduciary income tax) if the estate earns income. Note that Virginia's income tax due date is May 1 — one month later than the federal April 15 deadline.
| Tax Filing | Form | Due Date | Notes |
|---|---|---|---|
| Deceased's final VA income tax | Form 760 | May 1 | Top rate 5.75% on income over $17,000 |
| Estate fiduciary income tax | Form 770 | May 1 | If estate earns income during administration |
| Deceased's final federal return | Form 1040 | April 15 | Standard federal filing |
| Estate federal income tax | Form 1041 | April 15 | If estate gross income > $600/year |
| VA estate tax | N/A | N/A | No VA estate tax |
| VA inheritance tax | N/A | N/A | No VA inheritance tax |
File First Annual Settlement with Commissioner (16 Months)
The first annual settlement covers all estate activity from the date of qualification through the end of the first accounting period, and is due 16 months after the qualification date. The Commissioner reviews all receipts and disbursements, charges a fee, and may schedule a hearing.
Commissioner of Accounts Settlement Contents
| Element | Details |
|---|---|
| Opening inventory | Same values as the Inventory filed at month 4 |
| Receipts | All income received: interest, dividends, rents, proceeds from asset sales |
| Disbursements | All payments: debts, taxes, administration costs, distributions to heirs |
| Closing balance | Current estate balance after all receipts and disbursements |
| Commissioner's fee | Typically 2–5% of estate income (receipts excluding inventory items) |
| Receipts from distributees | Signed receipts required if distributions made during the period |
The Commissioner of Accounts may schedule a hearing to review the settlement, particularly for larger estates, complex asset situations, or if there are questions about the accounting. The Executor must appear and explain any questioned items. The Commissioner's approval is required before the estate can close.
Distribute Assets and Close the Estate
After all debts, taxes, and settlements are satisfied and the Commissioner approves the final settlement, distribute the remaining assets to heirs and receive the Order of Discharge from the Circuit Court.
Closing Process
- Confirm 1-year creditor period has expired (1 year from qualification date)
- Confirm all valid debts and taxes are paid
- Distribute remaining assets to heirs — obtain signed receipts from each distributee
- Transfer real estate — record Personal Representative's Deed or Memorandum of Transfer with the Circuit Court Clerk in the county/city where the property is located
- Transfer vehicle titles at the VA DMV
- File final settlement with the Commissioner of Accounts — summarize all transactions and final distribution
- Obtain Commissioner's approval — Commissioner reviews final settlement
- Receive Order of Discharge from the Circuit Court — formally closes the estate
- Close estate bank account after final distribution
Key Virginia Probate Statutes
| Statute | Subject |
|---|---|
| VA Code Title 64.2 | Wills, Trusts, and Fiduciaries (primary probate statute) |
| VA Code § 64.2-403 | Holographic will requirements |
| VA Code § 64.2-528 | 1-year creditor period from qualification; priority of claims |
| VA Code § 64.2-601 | Small Estate Affidavit — $50,000 personal property threshold |
| VA Code § 64.2-1200 et seq. | Commissioner of Accounts — appointment and duties |
| VA Code § 64.2-1300 | Inventory — 4-month deadline; file with Commissioner |
| VA Code Title 64.2, Chapter 7 | Intestate succession |
| VA Code § 64.2-200 | Intestate distribution — spouse and children shares |
6 Common Virginia Probate Mistakes
| Mistake | Consequence | How to Avoid |
|---|---|---|
| Distributing assets before 1-year creditor period | Personal liability for Executor if estate assets are insufficient for creditors | Wait 1 full year from qualification date before final distributions |
| Forgetting the 4-month Inventory deadline | Commissioner may send notice of delinquency; possible sanctions | File Inventory with Commissioner within 4 months of qualification |
| Confusing the Circuit Court Clerk and the Commissioner | Documents filed with the wrong office; delays and refiling required | Inventory and settlements go to the Commissioner; Letters Testamentary come from the Clerk |
| Missing the Virginia May 1 tax deadline | Late filing penalty and interest on VA Form 760 and Form 770 | Set a May 1 reminder — Virginia's deadline is one month after the federal April 15 |
| Failing to record the deed for real estate | Title remains in deceased's name; future sales or mortgages blocked | Record Personal Representative's Deed or Memorandum of Transfer with the correct Circuit Court Clerk |
| Filing in the wrong circuit (county vs. independent city) | Case dismissed; refiling required; timeline delayed | Virginia cities are independent of counties — file in the circuit of the city or county of actual domicile |
VA Probate vs. Neighboring States
| Feature | VA | NC | MD | WV | TN |
|---|---|---|---|---|---|
| UPC State? | No | No | No | No | No |
| Court | Circuit Court + Commissioner | Superior Court Clerk | Orphans' Court / Circuit | County Commission | Probate Court |
| Annual Accounts | ✅ Commissioner review | ✅ Required (Clerk) | ✅ Required | ⚠️ Varies | ❌ No |
| Creditor Period | 1 year from qualification | 3 months from pub. | 6 months from 1st pub. | 60 days from pub. | 4 months from pub. |
| Inventory Deadline | 4 months | 3 months | 3 months | Varies | 60 days |
| Small Estate | $50K personal property | $20K ($30K spouse) | $50K ($100K spouse) | $100K | $50K |
| Estate Tax | None | None | None | None | None |
| Typical Duration | 12–18 months | 9–15 months | 10–16 months | 6–12 months | 6–12 months |
Frequently Asked Questions
Do I need an attorney for Virginia probate?
Not legally required, but strongly recommended for larger estates due to the Commissioner of Accounts review process. The Commissioner is a legally trained officer who will scrutinize the settlement — errors in accounting format or missing items can result in a hearing and required amendments. For smaller estates (under $200,000 with a clear will), many Executors handle the process without an attorney using the Circuit Court Clerk's guidance and the Commissioner's published instructions.
How long does Virginia probate take?
Most Virginia estates take 12 to 18 months. The 1-year creditor period sets the minimum timeline — no final distributions before 12 months. The first settlement is due 16 months after qualification. If the Commissioner requests a hearing or if there are tax complications, the timeline extends further. Complex estates with real estate sales or will contests can take 2–3 years.
What is the Commissioner of Accounts fee?
The Commissioner charges a fee for reviewing the estate settlement — typically 2–5% of the estate's income (interest, dividends, and rents received during the accounting period, not the total estate value). The minimum fee is set by state regulation. The Commissioner's fee is an administration cost paid from the estate before distributions to heirs. The fee schedule varies by circuit — contact your Commissioner's office for the current rate schedule.
Does Virginia require newspaper publication of Notice to Creditors?
Not for most standard estates. Virginia does not require newspaper publication for Notice to Creditors in the typical case — the Executor mails direct written notice to all known creditors, and the 1-year creditor period runs from the date of qualification. In certain specific situations (real estate clearing title, etc.), publication may be advisable — consult the Circuit Court Clerk or an attorney if you have concerns about unknown creditors.
Ready to Start Virginia Probate?
Our step-by-step VA Probate Guide covers every phase — from Circuit Court qualification through the Commissioner of Accounts final settlement and Order of Discharge.