Does Every Will Go Through Probate in Virginia?

What Happened

A recently published article from PJI Law, appearing in ARLnow on October 20, 2026, addresses one of the most persistent misconceptions in Virginia estate administration: that having a will automatically triggers probate. The piece clarifies that whether an estate enters probate depends primarily on how assets are titled at death, not on whether the decedent left a will.

The article walks through the Virginia probate process at a high level, explaining that the circuit court in the decedent's locality oversees probate proceedings. A personal representative receives authority from the court to collect assets, pay debts and taxes, and distribute property according to the will or, in the absence of one, Virginia's intestacy laws. The article also highlights that certain assets transfer automatically outside of probate entirely, including jointly held property with survivorship rights, accounts with named beneficiaries, and assets held in a funded revocable living trust.

The piece also draws attention to Virginia's small estate affidavit procedure, which allows qualifying personal property valued at $75,000Va. Code § 64.2-600Verified Sep 9, 2026View source or less to transfer without a full probate proceeding. The article notes that this simplified route applies only to personal property and not to real estate. The publication frames these details as practical guidance for families navigating estate administration after a loss, and notes that early legal consultation helps personal representatives avoid missed deadlines and procedural missteps.

What It Means

For Virginia families, the distinction between probate and non-probate assets carries real financial and logistical weight. Virginia does not offer independent administration, meaning the probate process here involves court oversight at multiple stages. A personal representative files an inventory within 120 daysVa. Code § 64.2-1300Verified Sep 15, 2026View source of qualifying, and the first accounting is due within 16 months. Creditors have 6 monthsVa. Code §§ 64.2-554, 64.2-556(A) (six months from qualification before distribution may be compelled or ordered over creditors), 64.2-508.1(C)(4) (elective published notice: claims due at least six months from first publication); § 64.2-529 (separate 12-month personal-liability shield for the personal representative); § 64.2-550 (debts-and-demands hearing before the commissioner of accounts)Verified Sep 9, 2026View source to present claims. The typical Virginia probate proceeding runs 9 months to 12 months, and attorney fees generally fall in the range of 2.5%Va. Code §§ 64.2-105(B)(12) (fiduciary employs and compensates counsel), 64.2-1208(A) (commissioner of accounts allows reasonable expenses; no statutory percentage)Verified Sep 9, 2026View source to 3.9%Va. Code §§ 64.2-105(B)(12) (fiduciary employs and compensates counsel), 64.2-1208(A) (commissioner of accounts allows reasonable expenses; no statutory percentage)Verified Sep 9, 2026View source of the estate's value. On a $500,000 estate, combined professional costs can reach $29,411Va. Code §§ 64.2-105(B)(12) (fiduciary employs and compensates counsel), 64.2-1208(A) (commissioner of accounts allows reasonable expenses; no statutory percentage)Verified Sep 9, 2026View source. Families who understand which assets require probate before a death occurs are better positioned to manage those costs. You can estimate Virginia-specific probate costs using the free probate cost calculator.

The small estate affidavit route the article references received a significant update effective July 1, 2025, when the personal property threshold increased from $50,000 to $75,000Va. Code § 64.2-600Verified Sep 9, 2026View source. Families using this procedure must wait 60 daysVa. Code § 64.2-600Verified Sep 9, 2026View source after death before presenting the affidavit, and all known successors must sign. The affidavit is verified before a notary and presented to the holder of the asset, such as a bank or brokerage. A separate, narrower route allows a holder to pay a small asset of $35,000 or less to any successor after 60 days without an affidavit at all, provided no personal representative has been appointed. Critically, real estate falls outside both of these procedures entirely. A Virginia home titled solely in the decedent's name requires either probate or a separate transfer mechanism, such as a transfer-on-death deed recorded before death. Virginia does recognize transfer-on-death deeds for real property, which allows owners to name beneficiaries who receive title automatically at death without probate. Understanding these distinctions before death occurs gives families far more options. For a broader look at why avoiding probate matters, the article 7 Reasons for Bypassing Probate outlines the core tradeoffs families face.

The asset ownership structure a person maintains during life directly shapes the probate footprint their estate carries at death. Accounts with named beneficiaries, jointly held property with survivorship rights, and assets funded into a revocable living trust all transfer outside of probate. Virginia has adopted the Uniform Trust Code, which provides a structured framework for trust administration. A will, by contrast, only controls assets the decedent held individually without a designated transfer mechanism. This means a person can have a detailed, carefully drafted will and still leave behind an estate that requires months of court supervision if their assets were never aligned with that plan. Virginia does not impose a state estate or inheritance tax, which removes one layer of complexity from estate settlement. At the federal level, portability allows a surviving spouse to carry over unused federal estate tax exemption, currently $15,000,00026 USC 2001(c), 2010; P.L. 119-21 §70106Verified Sep 15, 2026View source per individual, which benefits married couples with larger estates. The interaction between asset titling, beneficiary designations, and the will itself determines what probate actually looks like for a given family, and that picture can differ substantially from what most people expect when they sign a will. For more on how a trust fits into this picture, Avoid Probate with a Trust explains how proper trust funding changes the outcome.

Context from SimplyTrust

Virginia's probate process involves multiple court filings, commissioner of accounts oversight, and a creditor window that keeps estates open well past the point most families expect. The $75,000Va. Code § 64.2-600Verified Sep 9, 2026View source small estate affidavit threshold covers a meaningful portion of modest estates, but families with real estate, business interests, or individually titled accounts above that threshold face the full probate process. The probate cost calculator provides a state-specific estimate based on estate value, helping families understand what administration costs they may encounter before they begin. For families who want to understand what probate involves from the beginning, What Is Probate? provides a plain-language overview of the process and why so many families work to minimize their estate's exposure to it.

Estate planning works best when the documents and the asset ownership structure align. A will alone does not avoid probate, and a trust that was never funded provides no probate protection either. Virginia families who take the time to review how each asset transfers at death, whether through a designated beneficiary, joint ownership, a trust, or probate, give their families the clearest path forward during an already difficult time. The estate inventory checklist offers a practical starting point for cataloging assets and identifying which ones carry probate exposure.

Source: Does every will have to go through probate in Virginia? | ARLnow.com