Do we have to go through probate to sell the house?

Not always. A house held with survivorship, in a trust, or under a transfer on death deed skips probate. If the house was in your parent's name alone and there's a will, the will has to be probated for title to pass under it.

This post covers probate in Virginia. If there's no will, the house passes to the heirs without probate, but someone still records a list of heirs or a real estate affidavit, and an administrator is often appointed to handle the rest of the estate. Who owns the house after a parent dies? covers which situation you're in.

How probate works in Virginia

Virginia has no separate probate court. The clerk of the circuit court handles probate, and a judge is involved only if there's a dispute.

1. Probate the will. The executor makes an appointment with the probate office of the circuit court where your parent lived and brings the original will and a death certificate.
2. Qualify. The executor qualifies and receives a certificate of qualification, which is what a bank or title company asks for. Without a will, an administrator qualifies instead.
3. Pay the probate tax. On estates over $15,000, the state tax is 10 cents per $100 of value, and localities may add a local tax equal to one-third of the state tax. It's paid before the executor can qualify.
4. Give notice. The executor notifies the heirs and beneficiaries and files an affidavit of notice.
5. File the inventory. Within four months of qualifying, the executor files an inventory of the estate with the Commissioner of Accounts.
6. Account for the estate. The first accounting is due within 16 months of qualifying, and the Commissioner of Accounts reviews it.

Can we sell before probate is finished?

Usually, yes. The estate doesn't have to be closed. What has to be in place is the authority to sign: a qualified executor with a power of sale, or every owner on board. Who can sign to sell the house after a parent dies? covers that, including the extra steps for a sale within a year of death.

How long it takes

In my experience, an executor can usually qualify within a few weeks of the death, depending on the clerk's schedule, and the house can be listed long before the estate closes. Settling the full estate takes longer, often more than a year given the 16-month accounting deadline.

Sources: Virginia Department of Taxation, Probate Tax; Fairfax County Circuit Court, Administration of Estates. This is general information about Virginia probate, not legal advice. Confirm the steps and deadlines with the clerk's office or an estate attorney.

For more on selling a home after a death, see how I approach estate sales.

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