Avoiding Probate in Virginia & Washington D.C.

If you live in or around the D.C. Beltway, it can often seem like one state with lots of traffic. Of course, the D.C. Metro area is comprised of the State of Maryland, the Commonwealth of Virginia, and the District of Columbia. Each one is a separate and distinct jurisdiction with its own sovereign laws. Driving through one to another, the laws of these jurisdictions may not be immediately noticeable. Yet, there are massive differences when you actually have to deal with the court systems in these respective jurisdictions. Moving from Bethesda to McLean is not very far as the crow flies, but it could make a world of difference in terms of the probate process. Simply put, the probate laws and court rules that apply in Maryland do not apply in D.C. or Virginia. While there are similarities in each jurisdiction, there can be significant differences too. Luckily, there are some universal ways to avoid probate.

As a general legal principle, probate assets are those assets which are solely the property of the decedent at the time of their death. This could include houses, cars, stocks, bank accounts, or anything of value which is owned by the decedent and does not transfer automatically at the time of the decedent’s death. The more probate assets, the larger the probate estate. The larger the probate estate, the longer the probate estate generally takes to work through the courts – not to mention that there are additional expenses associated with larger probate estates.

The probate process can be largely avoided with proper estate planning – no matter what jurisdiction you live in. In particular, you want to avoid the probate process and the possibility of intestate succession in Virginia. As an initial concern, there are potential taxes associated with property which passes as part of the probate process, but there are no taxes on probate estates valued at $15,000.00 or less.

Also, intestate succession in Virginia is fairly complicated. Intestate succession occurs when a decedent dies without a will. The court then follows a certain set of laws which directs the distribution of probate assets through a process called intestacy. In an effort to strengthen the position of surviving spouses facing intestate succession scenarios, Virginia has established a complex formula for determining the “augmented estate” of the decedent – which even includes the value of certain property transfers made during the life of the decedent. The surviving spouse is then entitled to one-third of the augmented estate (if the decedent left surviving children or grandchildren). Trying to figure out the shares to surviving heirs requires two additional layers of analysis.

Such legal complexities create a financial and emotional situation which most people find undesirable; thus, these individuals want to ensure heirs are not victim of probate. A sound estate plan protects your family after you're gone. You and your family must work together to avoid probate fees and taxes, and avoid the unbending procedures and frustrations of intestate succession.

If you are in a blended family, imagine the frustration associated with the lack of an estate plan when your second spouse is receiving added value to their surviving spouse share because of a gift which you made to your own child or grandchild, such as for their wedding or college education. Flatly put, these situations can create a toxic family dynamic. But if you had a simple will, a strong trust which holds your significant assets, along with fair, reasonable trust distribution requirements, then your family would save money and focus on celebrating your life and legacy.

In Washington, D.C., the general rules of probate assets apply. However, potential intestate succession is a bit different. If a decedent passes with a surviving spouse but no heirs or parents, then the surviving spouse gets the entire estate. But the rules change if surviving heirs are involved. If the surviving heirs are represented by children of the surviving spouse, then the surviving spouse gets two-thirds of the estate and the heirs get one-third of the estate. However, the surviving spouse only gets one-half of the estate if there are heirs who are not descendants of the surviving spouse.

As usual, the intestate succession and the probate processes provide cold, unbending formulas to address complex family dynamics. Relatively-simple steps can ensure that intestate succession does not happen, and while simultaneously minimizing your probate estate and saving money. Avoiding intestate succession is as simple drafting a proper will. Avoiding probate in general requires more involved steps such as: 1) putting marital assets in the names of both spouses, 2) making sure any beneficiary designation forms on IRAs or insurance policies are current, 3) drafting trust documents – especially if you are widowed or single, 4) placing your significant assets in the name of your trust, and 5) making sure to amend your will and trust documents to ensure that they work together and reflect significant changes in your life. Particularly in Virginia, you should also ensure that a surviving spouse is provided for under any estate plan. Otherwise, there could be a probing, complicated probate process to determine what the surviving spouses’ share of the estate might be.

You can streamline or functionally eliminate the probate process by contacting a skilled estate planning attorney for guidance. The Maryland estate planning attorneys at Altman & Associates serve clients around the D.C. Beltway – including Virginia and Washington, D.C. They are experienced in providing strategies to save you and your family money and frustration. For reliable estate planning guidance, contact the Maryland estate planning attorneys at Altman & Associates by phone at (301) 468-3220 or online to schedule a consultation. Office locations in Columbia and Rockville.

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