FAQs

Frequently Asked Questions

What You Need to Know

At Johnson, Gasink & Baxter, LLP, our Virginia lawyers have the knowledge and experience to help you with your legal matter. Whether you need advice on drafting an estate plan or you are going through a complicated probate, our firm knows the laws and how to protect your best interests.

When you have questions, read our answers to some frequently asked questions below:

  • Probate questions
  • Estate planning questions

Schedule your personalized consultation when you call our firm at (888) 487-9899. We serve clients throughout Virginia from our offices in Williamsburg and Richmond. (We have satellite offices in Virginia Beach, Stafford, Manassas, and Fredericksburg.

  • Estate Planning

    • Do I need a will? What happens if I do not have one?
      Dying intestate, or without a will, means that your estate will be subject to Virginia laws to determine what your heirs are entitled to. Your family may also have to go through the probate process, if your estate exceeds a certain monetary amount or if you own real estate. Therefore, a will is a very important document to help ensure your wishes are stated and carried out after you have passed.
    • Who will be in charge of my estate after I pass?

      Your executor, trustee, or personal representative is the person that you appoint in your estate planning documents. This person needs to be a trustworthy adult (18 years or older), as they will be in charge of a big responsibility. Many clients chose a family member or a close family friend, and some have even amended their documents as circumstances change.

      Similarly, you need to choose an agent for your medical directive and power of attorney, who will be responsible for your taking care of your affairs if you become incapacitated or otherwise unable to do so yourself.

    • What is asset protection?
      If you are a professional, own your own business, own or rent property, or own a lot of monetary assets, having a protection plan in place can help safeguard your wealth. Asset protection can help protect you from lawsuits, judgments, fraud, and limit your liability. Simply having insurance may not fully protect you or your business. An asset protection plan offers you an additional level of security to guard your hard-earned money.
    • What does a living trust do?
      Having a living trust, or revocable trust, in place can help your family and your heirs avoid the drawn out probate process after you pass. In effect, a living trust works in the same way that a will does in ensuring your final wishes are carried out and your estate is protected. A living trust may also save you money on estate taxes.
    • I am the administrator of an estate. What should I do?
      Estate and trust administration can be complex. Costs and time can depend on a number of issues including the estate’s assets and the court’s schedule. Trusting the administration process to a knowledgeable attorney can save you time, money, and the stress of dealing with the courts, the other heirs, and the myriad of potential pitfalls that can happen in the process.

  • Probate

    • What is probate?
      Probate is the process by which heirs take title to a deceased person’s assets. The court appoints a Personal Representative to make sure heirs and creditors are notified, claims are heard, and assets are properly stewarded and distributed.
    • Do I need an attorney?
      A Personal Representative can act alone without professional guidance in Virginia. In our experience, hiring an attorney saves the executor time, stress, and often money caused by unnecessary fees and delays.
    • I need help with probate. What do I do?
      Johnson, Gasink & Baxter, LLP helps Personal Representatives who want to relieve the stress and confusion of probate by taking advantage of the advice and expertise of our dedicated professionals. By hiring an attorney, you get a guide to help you navigate probate and protect yourself from the liability inherent in being a Personal Representative.
    • How does probate work in Virginia?
      Although the initial meeting happens at the courthouse, subsequent filings are sent to the Commissioner of Accounts, who is an attorney appointed by a judge to review probate filings in a county. The series of filings typically begin a month or so after death and continues for 18-24 months, though the experience of every estate is different.
    • How do I file an accounting?
      You need to file an accounting within 16 months of your initial qualification meeting which shows the Commissioner of Accounts exactly what has happened to each cent of each asset in the estate. The forms are available online but are deceptively complex, and the requirements for documentation can be burdensome.
    • What is a Commissioner of Accounts?
      In many states, probate is a judicial process. Virginia is a unique hybrid. While the Circuit Court opens the probate, the process is quickly turned over to the local Commissioner of Accounts to review and approve (or reject) Inventories and Accountings. A Commissioner of Accounts is the attorney appointed by a judge to review probate filings in a county or city. They serve indefinitely at the pleasure of the head circuit court judge.
    • What is a Personal Representative?
      ‘Personal Representative’ is the modern name for ‘executor.’ An executor executes the instructions left in a Will; an administrator administers an intestate estate (i.e., no Will). The term Personal Representative covers both these offices and some others. It identifies the individual designated by and responsible to the court for an estate.
    • When do I get my share of the estate?
      This is the most common estate question we receive from heirs. In short, you receive your share when everyone else does— after the bills are paid and claims against the estate have had time to develop and be resolved. Typically an estate is closed within two to three years. During that time the beneficiaries may get their share in a few installments.
    • Where do I go first?

      Probate begins when the Will is admitted to the court. To start the process, you call the Probate Clerk at the Circuit Court to make an appointment to admit the Will to Probate and qualify as the Personal Representative. For the qualification meeting, you need to bring the original Will, a raised-seal death certificate, your checkbook to pay initial fees, and identification.

      If you live out of state, you will need to arrange for bond and a local attorney to serve as resident agent. Upon qualification, you get a letter from the court (called a letter of qualification or letter testamentary) empowering you to take control of the assets. In exchange, you promise to personally guarantee the value of the estate.

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