Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
If you need estate records—such as bank statements, deeds or tax returns—during an open probate proceeding, you can secure a court-ordered subpoena duces tecum. In Virginia, this tool compels a witness or custodian to produce documents or tangible evidence at a hearing or deposition.
1. Confirm an Open Estate Case
Before seeking a subpoena, ensure the decedent’s estate is before the Circuit Court. If a will has petitioned for probate or you’ve filed for letters of administration, you satisfy this requirement.
2. Identify the Records and Custodian
List the exact documents you need and name the custodian—often a bank, brokerage, or government agency. Narrow scope to avoid objections for overbreadth.
3. Prepare the Subpoena Form and Motion
Obtain the standard Virginia subpoena form from the Clerk’s Office or online. Complete the document with case caption, hearing or deposition date, location, and the records description. File a motion for issuance if the court requires justifying the subpoena.
4. Obtain Court Signature
Under Virginia Code § 8.01-391 (link), the clerk or judge signs and issues the subpoena. This action transforms your draft into an enforceable order.
5. Serve the Subpoena Properly
Serve the subpoena according to §§ 8.01-390 to 8.01-391 (definitions). You must:
• Deliver it to the custodian personally or via certified mail.
• Serve all parties in the case with a copy.
6. Collect and Review the Records
The custodian must produce documents by the date specified—usually 21 days after service. Review them promptly. If the custodian objects or fails to comply, file a motion to compel under § 8.01-420.
7. Use Records at Hearing or Deposition
Introduce the records as evidence in your hearing or deposition. Authenticate them through the custodian’s testimony or an affidavit, in accordance with Virginia’s Evidence Code.
Helpful Hints
- Begin early: Subpoenas take time to draft, file and serve.
- Be specific: Limit requests to relevant documents to avoid objections.
- Follow service rules: Improper service voids enforceability.
- Keep records: Maintain proof of service and any motions filed.
- Consult counsel: An experienced probate attorney can help navigate complex issues.