Virginia Probate Quick Facts
Virginia has no state estate tax and no inheritance tax. All assets pass to heirs free of Virginia state death taxes. Only the federal estate tax (Form 706, for estates over approximately $13.99 million in 2025) potentially applies. 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 during administration.
Virginia's most distinctive feature is the Commissioner of Accounts — a court-appointed officer who independently reviews all estate settlements. Unlike most states where accounts are filed with the probate judge, Virginia Executors file all accounts with the Commissioner of Accounts (VA Code § 64.2-1300 et seq.). The Commissioner charges a fee (typically 2–5% of estate income), schedules hearings when needed, and must approve accounts before the estate can close. This is mandatory — there is no bypass option.
Virginia Small Estate Options
Virginia offers multiple options for transferring assets without full probate, depending on the estate value and asset types:
| Option | Threshold | Wait Period | Court Involved? | Real Estate? |
|---|---|---|---|---|
| Small Estate Affidavit (VA Code § 64.2-601) |
$50,000 personal property | None | No — present affidavit to institution | No — real estate excluded |
| Memorandum of Transfer (real estate, small estates) |
Any value | None | Yes — recorded with Circuit Court Clerk | Yes — specific procedure for real estate |
| Full Probate (VA Code Title 64.2) |
Any value | None | Yes — Circuit Court + Commissioner | Yes |
Virginia's Small Estate Affidavit (VA Code § 64.2-601) applies when the total personal property probate estate is $50,000 or less. No waiting period is required — present the notarized affidavit directly to each bank or financial institution. Real estate does not qualify and requires a separate Circuit Court procedure. For estates with only financial accounts under $50,000 and no real estate, the Small Estate Affidavit eliminates the need for formal probate entirely.
Virginia Probate: 8 Key Phases
File the will for probate and qualify as Executor before the Clerk of the Circuit Court in the circuit where the deceased was domiciled. Pay the probate tax ($0.10 per $100 of gross estate). Take the oath before the Clerk. Receive Letters Testamentary.
Virginia has 31 circuits covering all 95 counties and 38 independent cities — find your circuit court at vacourts.gov.
Apply for the estate EIN at irs.gov the same day you qualify. Open a dedicated estate bank account with Letters Testamentary, EIN, and certified death certificate. Keep all estate funds separate from personal funds.
Virginia does not require newspaper publication of a Notice to Creditors for standard estates. Mail direct written notice to all known creditors. The creditor period is 1 year from qualification (VA Code § 64.2-528) — the longest in the mid-Atlantic and Southeast. No distributions before 1 year from qualification.
Virginia's 1-year creditor period from qualification (VA Code § 64.2-528) is significantly longer than most neighboring states: North Carolina (3 months), Tennessee (4 months), Maryland (6 months), and West Virginia (60 days). Do not make final distributions to heirs before 1 year from your qualification date.
File an Inventory of all estate assets with the Commissioner of Accounts within 4 months of qualification (VA Code § 64.2-1300). Include all probate assets with fair market values as of the date of death. Obtain appraisals for real estate and high-value items. Send a copy to all interested persons.
During the 1-year creditor period, collect all assets, maintain estate property, pay ongoing expenses (mortgage, insurance, utilities), and keep detailed records of all receipts and disbursements. These records form the basis of the annual settlement filed with the Commissioner of Accounts.
The first annual settlement is due 16 months after qualification and covers all estate activity from qualification through the end of the first accounting period. The Commissioner reviews all receipts and disbursements, charges a fee, and may schedule a hearing. Subsequent settlements are filed annually until the estate is closed.
The Commissioner charges a fee for reviewing the settlement — typically 2–5% of the estate's income (interest, dividends, rents) received during the accounting period. This fee is an administration cost paid from the estate before distributions to heirs.
After the 1-year creditor period expires, pay valid creditor claims in priority order. Virginia has no estate tax and no inheritance tax.
| Tax Filing | Form | Due Date |
|---|---|---|
| Deceased's final VA income tax | Form 760 | May 1 (note: NOT April 15) |
| Estate fiduciary income tax | Form 770 | May 1 annually |
| Deceased's final federal return | Form 1040 | April 15 |
| Estate federal income tax | Form 1041 | April 15 annually |
| VA estate tax | N/A | No VA estate tax |
| VA inheritance tax | N/A | No VA inheritance tax |
After all debts, taxes, and settlements are satisfied, distribute remaining assets to heirs. Transfer real estate by recording a Personal Representative's Deed or Memorandum of Transfer with the Circuit Court Clerk in the county/city where the property is located. File the final settlement with the Commissioner of Accounts. The Commissioner approves the settlement, and the Circuit Court enters an Order of Discharge.
Virginia Income Tax Rates
| Taxable Income | VA Rate | Note |
|---|---|---|
| $0 – $3,000 | 2% | Lowest bracket |
| $3,001 – $5,000 | 3% | |
| $5,001 – $17,000 | 5% | |
| Over $17,000 | 5.75% | Top rate; applies to most estates |
Virginia income tax due date is May 1 — one month later than the federal April 15 deadline. File Form 760 for individual returns and Form 770 for estate fiduciary income tax.
Virginia Will Requirements
| Will Type | Requirements | Valid in VA? |
|---|---|---|
| Attested will (standard) | Written, signed by testator, signed by 2 witnesses | ✅ Yes |
| Holographic will | Entirely in testator's handwriting, signed | ✅ Yes (VA Code § 64.2-403) |
| Self-proved will | Notarized acknowledgment eliminates need for witness testimony at probate | ✅ Yes (preferred) |
| Electronic will | Not currently recognized | ❌ No |
Virginia Intestacy (No Will) — VA Code § 64.2-200
| Heirs Surviving | Distribution |
|---|---|
| Spouse only (no children) | Entire estate to surviving spouse |
| Spouse + children of both | All to surviving spouse |
| Spouse + children not of spouse | ⅓ to spouse; ⅔ to children equally |
| Children only (no spouse) | Equal shares to all children |
| No spouse, no children | Parents, then siblings, then next of kin |
Note: When surviving spouse has children from a prior relationship, Virginia gives the spouse only ⅓ of the estate — more protective of children than NC (which starts the spouse at $60,000).
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 | ✅ Required (Commissioner) | ✅ Required (Clerk) | ✅ Required | ⚠️ May be required | ❌ No |
| Creditor Period | 1 year from qualification | 3 months from publication | 6 months from first pub. | 60 days from pub. | 4 months from pub. |
| Small Estate | $50K | $20K ($30K spouse) | $50K | $100K | $50K |
| Estate Tax | None | None | None | None | None |
| Inventory Deadline | 4 months | 3 months | 3 months | Varies | 60 days |
| Typical Duration | 12–18 months | 9–15 months | 10–16 months | 6–12 months | 6–12 months |
Frequently Asked Questions
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