The Mechanics of Probate in Virginia

Erin A. Smith, Esq.

Many of my clients express their desire to avoid probate or to make probate easier for their family members at the time of their demise. By understanding the probate purpose and process, it can help an individual craft their ideal estate plan.

Assets that are in the decedent’s name alone go to probate. Those assets with a survivorship interest, payable on death beneficiaries, transfer on death beneficiaries, or those assets that are in a trust do not go through probate.

Probate is the process through which title is transferred to heirs on all of the assets that are in the decedent’s probate estate. It is also an opportunity for interested persons – for example, creditors of the estate or a disinherited spouse or child – to make claims. A person’s estate is probated whether he dies with or without a will.

The basic outline of the process is as follows:

1.     The executor files the will with the Clerk of Court where the decedent was domiciled at death. The Clerk “qualifies” the executor to handle the administration.

2.     The executor pays the probate tax and posts a bond to cover the value of the estate. Surety, which is insurance, is required on the bond in some cases. It can be waived in a will. However, it will always be required if there is an executor who lives out of state.

3.     The executor is then required to prepare an inventory of all assets in probate within 4 months of their qualification.

4.    The executor must account to the court for all receipts, checks, and disbursements from the estate to the penny.

5.      Debts, expenses, allowances, taxes, filing fees, bonding fees and fiduciary commissions are all paid first. Then once expenses and debts are paid, the assets can finally be distributed to the beneficiaries. At that point, the executor can file a final accounting. 

Probate can be long, usually a minimum of one year, but can also remain open for much longer in some cases. Everything done in probate is considered a public record, so confidential information is available to the public, which is enough to discourage many people from the process.

There are ways to avoid probate, namely, by holding title jointly with rights of survivorship or always establishing a payable on death beneficiary. The most effective way to avoid this process is by creating and funding a trust.

Understanding Dementia

Helena S. Mock, Esq.

Most people confuse dementia with Alzheimer's Disease. Although Alzheimer's is the most common type of dementia, it is not the only one. There are actually four different types of dementia: Alzheimer's Disease, Vascular Dementia, Frontotemporal Dementia, and Normal Pressure Hydrocephalous. However, just because a loved one is experiencing some memory loss doesn't mean he has dementia. Some memory loss is common with age. Dementia, however, is caused by damage to the brain cells which can occur from any number of things, such as a traumatic brain injury, head trauma, stroke, or disease, just to name a few.

Identifying the type of dementia will help determine the best care and treatment going forward.  Here are some of the warning signs to look for.

1.    With Alzheimer’s, the individual will have difficulty remembering recent conversations, names, or events. He will often also suffer from apathy or depression.  And, as the disease progresses, his ability to communicate becomes increasingly impaired.  Over time, the individual will also develop difficulty walking, speaking, and swallowing (which may eventually lead to death because of the inability to eat).

2.     With Vascular Dementia, the individual will have difficulty making decisions, planning, and organizing.  Judgment will also be impaired.  Unlike Alzheimer’s, vascular dementia doesn’t necessarily involve memory loss; it is more about loss of judgment and manifests itself in poor decision-making.  Vascular dementia is the second most common type of dementia and normally occurs after a stroke.

3.     With Frontotemporal Dementia, there is nerve cell loss in the temporal lobe.  It is most recognizable by a change in personality and/or behavior.  Some also experience an inability to remember simple language functions, and there may be changes in muscle memory or motor function as well.  An individual suffering from frontotemporal dementia might behave erratically or anger easily.  She also may “overreact” to small issues or minor inconveniences.

4.     With Normal Pressure Hydrocephalous, the person will have difficulty walking and balancing because it is caused by a build-up of fluid in the brain.  There is usually a decline in thinking skills or processing information and often loss of bladder control.  Caught early, this type of dementia may be reversible, or it may be possible to at least relieve some of the symptoms.  The symptoms are often confused with Alzheimer’s, though, so it is important to seek medical attention early.

One in three seniors will experience some form of dementia prior to death.  Diagnosis of the proper type of dementia is key to proper treatment, which, in many cases, can slow the progression of the disease.  A diagnosis of any type of dementia is a warning sign which indicates that the window of opportunity for long-term care planning will be closing.  It is time to meet with your estate planning or elder law attorney to ensure your estate plan, especially your medical and property powers of attorney, are up to date and to discuss options available to protect assets against the costs of long-term care.  After incompetency, your options are far more limited and become more complicated and costly.