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1. The decedent (solely) owns real estate in Loudoun County, Virginia. What will happen to the interest the decedent has in this real estate?

If the decedent dies Testate (with a Will), then by operation of Virginia Law, the real estate passes automatically to the beneficiaries named in a Will. The Will must be probated for this title transfer to occur, and probate fees and taxes will apply.

If the decedent dies Intestate (without a Will), then by operation of Virginia Law, the real estate passes to the heirs at law of the decedent. A Real Estate Affidavit (PDF) must be recorded in the Probate Division for this title transfer to occur, and probate fees will apply.

2. The decedent owns real estate (jointly, with right of survivorship) in Loudoun County, Virginia. What will happen to the decedent’s interest?

To remove the decedent’s name from the title to the real estate, you would need to make an appointment with the Probate Division to do the following: 

• Testate Estate: the Will must be admitted to Probate before the Clerk. Once the Will has been admitted to Probate, the real estate will pass directly and automatically to the joint owner.
• Intestate Estate: A Real Estate Affidavit must be recorded in the Probate Division. The fee to record a Real Estate Affidavit (PDF) is $69, payable to Clerk of Circuit Court. 

3. What should I do if the decedent did not reside in Loudoun County, and probate has been opened in another jurisdiction, but the decedent owned an interest in real estate in Loudoun County?

Testate Estate

An exemplified (or triple sealed) copy of the Will and other related Probate documents from the jurisdiction in which Probate was opened, must be obtained and recorded in Loudoun County. Recording fees and probate tax will apply. 

Intestate Estate

A Real Estate Affidavit must be recorded in Loudoun County. The fee to record a Real Estate Affidavit (PDF) is $67, payable to Clerk of Circuit Court.

4. Does an Executor have the authority under Virginia law to sell the decedent's real estate?

Unless the will specifically directs the executor to sell the real estate, the qualified executor has no legal authority as part of his/her administration of the estate to sell the decedent's real estate.

5. Does an administrator have the authority under Virginia law to sell the decedent's real estate?

A qualified administrator has no authority to sell the decedent's real estate. If the administrator wishes or needs to sell the real estate in order to pay the decedent’s debts or otherwise, the administrator must petition the court (a Judge) requesting the court to grant power to sell.