Probate in Virginia: small estates, no will, and skipping court

Updated 2026-10-18

The short answer

In Virginia, family can skip probate with a small estate affidavit if the personal probate estate is $75,000 or less, at least 60 days after death. A house can pass outside probate by a recorded transfer-on-death deed. Virginia has no estate or inheritance tax, but it charges a small probate tax.

When someone dies in Virginia, the family's first question is usually practical. Do we have to go to court, and how long will it take?

Often the answer is no, or not for long. This page covers Virginia's simpler paths, plus who inherits if there is no will. It is part of our guides to estate planning by state. If the word is new, start with what probate is.

Can my family use a small estate affidavit in Virginia?

Yes, if the estate fits the limits. Under Virginia's Small Estate Act, the decedent's entire personal probate estate, wherever located, must be worth $75,000 or less at date of death (Va. Code 64.2-601).

The other conditions:

At least 60 days have passed since death.
No application to appoint a personal representative is pending or granted anywhere.
Any will has been probated.
All known successors sign an affidavit, on the form from the Office of the Executive Secretary of the Supreme Court of Virginia, naming one designated successor.

The designated successor can then collect each small asset, such as bank and brokerage accounts, securities, tax refunds and belongings. Real estate isn't included.

There is an even simpler rule for small items. After 60 days, a bank or other holder of an asset worth $35,000 or less may pay any successor without an affidavit, if no personal representative application is pending or granted (Va. Code 64.2-600 to 64.2-602).

Older articles show a $50,000 limit. The current figure is $75,000.

Who inherits if there's no will?

Virginia's intestacy law decides. Virginia is not a community property state (Va. Code 64.2-200).

A surviving spouse takes everything, unless the person who died had children or descendants who are not also the spouse's. In that blended-family case, the spouse takes one-third and those children and their descendants take two-thirds.

With no spouse, the estate passes in this order:

Children and their descendants.
Parents, or the surviving parent.
Brothers and sisters and their descendants.
Half to each parent's side of the family: grandparents, then aunts and uncles and their descendants, and further out from there.

If neither side has kin, it goes to the family of the most recent spouse, and then to the Commonwealth. Half-siblings inherit only half as much as full siblings (Va. Code 64.2-202).

Friends never appear on this list. A gift to a friend, a charity or the neighbor who feeds the cat needs a will or trust. Our post on dying without a will covers what happens when the list runs short.

A handwritten will can be valid in Virginia without witnesses, if it is wholly in your handwriting and signed. At probate, two disinterested witnesses must prove the handwriting (Va. Code 64.2-403).

Who serves as personal representative?

With a will, the named executor qualifies before the circuit court or its clerk. If no executor is named or the named one can't serve, a main beneficiary may step in (Va. Code 64.2-500).

Without a will, Virginia uses time windows rather than a ranked list (Va. Code 64.2-502):

First 30 days: a sole heir, or any heir with written waivers from all the others.
After 30 days: the first heir who applies, though all heirs who gave notice must be heard first.
After 45 days: a nonprofit that served as the person's guardian or conservator.
After 60 days: a creditor or anyone else, after a diligent search and notice to any sole heir.

A personal representative is a fiduciary: legally required to act in the estate's interest and follow what the will says.

Can an executor live outside Virginia?

Yes. Any nonresident individual may be appointed (Va. Code 64.2-1426). There are two conditions.

First, they consent in writing to legal papers being served on the circuit court clerk or a Virginia agent. Second, they post a bond with surety, unless a Virginia resident serves alongside them or surety is waived.

How long do creditors have?

New in 2026, a personal representative may publish a notice to creditors once a week for two weeks, and mail it to known disputed creditors. Debts must then be presented by the later of six months after first publication or 90 days after mailing (Va. Code 64.2-508.1).

A personal representative who follows this in good faith isn't personally on the hook for late debts beyond what is still on hand. Separately, after six months the court can issue an order to show cause against distribution, which protects a personal representative who distributes under it (Va. Code 64.2-556).

Are there simpler options for modest estates?

Yes. When the personal estate is $35,000 or less and an heir, beneficiary or larger creditor qualifies, the clerk must waive the inventory and settlement of accounts (Va. Code 64.2-1302). This isn't available if there is real estate the person could sell.

When all heirs or residuary beneficiaries are also the personal representatives, they can file a statement in lieu of a full settlement of accounts after six months, once all charges are paid (Va. Code 64.2-1314). Inventories and accounts otherwise go to a "commissioner of accounts."

Our post on the probate process walks through the steps, and how long probate takes covers timing.

How much is the personal representative paid?

Virginia allows "reasonable compensation," often as a commission on receipts, set by the commissioner of accounts (Va. Code 64.2-1208). The Code has no percentage schedule. Our post on what an executor gets paid compares approaches.

Can my house skip probate?

Yes, with a transfer-on-death deed under Virginia's Uniform Real Property Transfer on Death Act (Va. Code 64.2-621 to 64.2-638).

What to know:

It needs the formalities of a recordable deed and must say the transfer happens at your death.
It must be recorded in the land records where the home sits before your death.
Joint owners must all sign.
You can always revoke it, and the beneficiary doesn't need to be told or accept it.
It is exempt from recordation tax unless given for payment. The Code includes an optional form.

A living trust is the other common way to keep a home out of court; our post on what a trustee does explains that role, and how to avoid probate compares the options.

Will my heirs owe Virginia estate or inheritance tax?

No. Virginia Tax states that Virginia no longer has an estate tax or inheritance tax (Virginia Department of Taxation).

Virginia does charge a probate tax when a will is probated or administration is granted: 10 cents per $100 of estate value, with no tax on estates of $15,000 or less (Virginia Tax, Probate Tax).

Which path fits?

Situation	Likely path in Virginia
Single asset of $35,000 or less, after 60 days	Holder may pay a successor without an affidavit
Personal probate estate of $75,000 or less, after 60 days	Small estate affidavit
Home with a recorded transfer-on-death deed	Passes to the beneficiary outside probate
Larger estate, or real estate without a deed or trust	Qualify before the circuit court clerk

Here is a typical case, a composite. Joan, 77, lived in Roanoke and never married. Her house had a recorded transfer-on-death deed naming her niece, and her accounts totaled about $60,000. Sixty days after Joan died, her niece used the small estate affidavit.

Some people would rather not leave this to a niece in another state. Trella Trust Company, through a Kinly membership, can be named as executor or trustee, first or as backup to someone you choose. If it steps in and settles the estate, that work is charged by the hour, and you see the rates before anything starts.

Before death, the papers that matter most are your powers of attorney. See our Virginia financial power of attorney guide and Virginia medical power of attorney guide.

Common questions

What is the small estate limit in Virginia?

$75,000 or less in personal probate estate, wherever located, and the family must wait at least 60 days after death. Real estate isn't included.

Does a surviving spouse inherit everything in Virginia?

Only if there is no will and the person who died had no children or descendants outside the marriage. If they did, the spouse takes one-third.

Can someone who lives in another state be an executor in Virginia?

Yes. A nonresident must consent to service of legal papers and usually post a bond with surety, unless it is waived or a Virginia resident serves too.

Does Virginia have an inheritance tax?

No. Virginia has no estate or inheritance tax. It does charge a small probate tax of 10 cents per $100, with none on estates of $15,000 or less.

Does Virginia allow transfer-on-death deeds?

Yes. The deed must be recorded in the local land records before death, and you can revoke it at any time.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

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