Must a will be probated in order to make a small estate affidavit?
Full Question:
Answer:
In our prior answer to you, our attorney outline the general principles involved in making a claim for small estate administration in Virginia. This is the typical procedure when someone dies without a will and his/her total assets are $50,000 or less. To collect that property, a small estate affidavit is executed by an interested party, so long as it has been more than 60 days since the death.
The relevant Virginia statute does not require a will to be filed prior to the affidavit being submitted. In many cases, a will exists and that is why the form you were reviewing contains that reference.
Please see #4 below:
§ 64.1-132.2. Collection of personal property by affidavit.
A. Sixty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent may make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
1. The value of the entire personal probate estate, wherever located, does not exceed $50,000;
2. At least sixty days have elapsed since the death of the decedent;
3. No application for the appointment of a personal representative is pending or has been granted in any jurisdiction;
4. The will, if any, was duly probated and the list of heirs required by § 64.1-134 was duly filed; and
5. The claiming successor is entitled to payment or delivery of the property, and the basis upon which such entitlement is claimed.