There is no set time frame in which a will must be probated or estate administration must be started. The death of a loved one is a particularly emotional, stressful, and busy time. The probate of the will can usually wait until a week
or so after the funeral. It is recommended that the initial steps in the estate process star t within 30 days after death. If any questions exist, call your attorney or your local Circuit Court Clerk’s Office.
First, the will (original) must be taken to the Clerk’s Office of the Circuit Court in your local jurisdiction. It is recommended that an appointment be made with the Clerk or a deputy clerk. You might be given some forms
to fill out prior to the appointment. Second, the person offering the will for probate or seeking to qualify should know all the assets owned by the deceased and, as accurately as possible, the value of those assets. A copy of
the death certificate should be taken to the court. This document contains much of the information that will be needed by the Clerk or deputy clerk assisting you.
Your brother would not be able to take everything if there was a probate and without filing the will. If there is in fact no will then the estate will be distributed by intestate succession (state law). If a person dies without a will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts and cost of administration):
1) all to the surviving spouse, unless there are children (or their descendants) of someone other than the surviving spouse in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children.
2) if no surviving spouse, all passes to the children and their descendants.
3) if none, then all goes to the deceased’s father and mother or the survivor.
4) if none, then all passes to the deceased’s brothers and sisters and their descendants.
5) (there are further contingent beneficiaries set out in the Virginia statutes.)
If the assets were taken without proper authority then you need to hire an estate attorney and you might have a cause of action against whomever took the assets without authority.
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