Understanding how wills are admitted and what a summary probate means in Virginia

Short answer: What many states call “probate in common form” is a summary admission of a will that creates prima facie proof of its validity but remains open to later challenge. In Virginia, wills are admitted and estates administered through the circuit courts under Title 64.2 of the Code of Virginia. Virginia’s process allows for routine clerk admissions and subsequent will contests in court — functionally similar to the historical “common form” admission used elsewhere. For the governing law, see the Code of Virginia, Title 64.2 (Wills, Trusts, and Administration of Estates): https://law.lis.virginia.gov/vacode/title64.2/.

Detailed answer — How the process works in Virginia

Many readers will have seen two historic labels in other states: “common form” and “solemn form” probate. Historically the difference was:

• “Common form” — a clerk or judge admits the will after routine proof (often testimony or affidavits). That admission is prima facie (sufficient on its face) but can be attacked later by a formal will contest; and
• “Solemn form” — a full, contested admission (often with witnesses produced or a jury) that gives a stronger, often conclusive, adjudication of the will’s validity.

Virginia’s probate system achieves the same practical outcomes using the circuit court process governed by Title 64.2 rather than always labeling an admission “common” or “solemn.” Key points:

• The circuit court admits wills to probate and issues letters testamentary (if there is an executor) or letters of administration (if there is none). The probate statutes and procedures are in Title 64.2 of the Code of Virginia: https://law.lis.virginia.gov/vacode/title64.2/.
• An executor or personal representative typically presents the original will to the circuit court (often the clerk’s office) with a death certificate and a petition for probate. If the court accepts the proof, it will admit the will and authorize the representative to act for the estate.
• An ordinary admission based on routine proof creates prima facie evidence that the will is valid but does not prevent someone from later filing a contest or other challenge in the circuit court. In practice this is equivalent to “probate in common form” in other jurisdictions.
• If a party wants a definitive trial on the will’s validity (for example, alleging forgery, fraud, lack of capacity, or undue influence), they can file a will contest in circuit court. The contest proceeds through the court system with full trial process, and the court can then make a conclusive determination (similar to a “solemn” proceeding elsewhere).
• The estate administration duties that follow admission (inventory, creditor notice, paying debts, distribution to heirs) are statutory and supervised by the circuit court. See Title 64.2 for administration, accounts, and the duties of personal representatives: https://law.lis.virginia.gov/vacode/title64.2/.

Hypothetical example

Suppose Jane Doe dies leaving an original will naming Tom as executor. Tom files the original will and a death certificate with the circuit court and asks the clerk to admit the will and issue letters testamentary. The clerk admits the will after routine proof and issues letters so Tom can act. Two months later, an heir claims Jane lacked capacity and files a will contest. The contest proceeds in circuit court; the prior admission gave Tom authority to act immediately but did not conclusively prevent the heir’s challenge.

What this means for you

• If you are the nominated executor, you can and should present the original will promptly to the circuit court to obtain authority to manage the estate.
• If you suspect the will is invalid, you may still file a will contest in circuit court after an initial admission. Acting quickly is important because there are practical and procedural consequences: the admitted executor may already have started distributing assets and meeting obligations.
• If you want a definitive adjudication before the executor acts, you should seek immediate court relief (for example, asking the court to stay distributions or appoint a receiver) and consult a probate attorney about filing a formal challenge.

Where to read the law and get court forms

• Code of Virginia, Title 64.2 — Wills, Trusts, and Administration of Estates: https://law.lis.virginia.gov/vacode/title64.2/
• Virginia’s judicial branch (circuit courts handle probate matters): https://www.vacourts.gov/

Helpful Hints

• Locate the original will and certified death certificate before you go to the court clerk.
• If you were named executor, file for letters promptly so you can access bank accounts and preserve estate property.
• If you plan to challenge a will, move quickly. Although a clerk’s admission permits immediate administration, it does not bar a later contest — but delay can make successful relief harder to obtain.
• Keep careful records: inventories, notices to heirs and creditors, receipts for estate expenses, and communications with beneficiaries are critical during probate and any later contest.
• Consider a consultation with a Virginia probate attorney early if there are unusual facts (suspected incapacity, undue influence, disputed beneficiaries, large estates, or out-of-state property).
• Smaller estates may qualify for simplified procedures — check with the circuit court clerk about small-estate options and any statutory thresholds in Title 64.2.

Disclaimer: This article explains general principles of Virginia probate law and is for educational purposes only. It is not legal advice. For advice about a particular situation, consult a licensed Virginia attorney.