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Where There Is a Valid Will There Is a Proper Way to File in Probate Court

The term probate may evoke foreboding thoughts among many who hear it, but essentially the word means the act of validating and recording the will of a deceased person with the court that has jurisdiction. In the case of the commonwealth of Virginia, that court is the Circuit Court, and it is the proper filing of a will with the court, or more specifically, the clerk of the court, that will help determine whether probate will be a relatively smooth or contentious process.

Under Virginia law, a person is considered to have died testate if he or she left a will; otherwise the decedent is considered intestate, which means that the person did not have a valid will at the time of death. And if a person dies intestate, Virginia law will determine who the heirs are and therefore who receives property from the decedent’s estate.

The will may be handwritten by a person, known as the testator, who must sign the will under Virginia law. The handwriting of such so-called holographic wills must be verified at the time of probate by two disinterested witnesses to be accepted. However, the clerk of the court will accept a will if it is self-proving, i.e., it has a properly executed affidavit attached to it.

Only an original will may be presented to the clerk of the court who, if the will has been determined to be validly executed and properly proven, will receive it for recording. In any case, an attorney can review a will to determine whether it is valid and self-proving and can offer advice on whether probate, which is based the specific circumstances of the estate, is even required.

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