Disclaimer
This article provides general information and does not constitute legal advice. Court practices vary. Consult an attorney or the Circuit Court Clerk’s office for guidance.
Detailed Answer
In Virginia, you generally must file a certified death certificate to open an estate and obtain letters testamentary or letters of administration. Under Virginia Code § 64.2-306, the clerk of the circuit court requires a certified copy of the decedent’s death certificate before issuing letters. You can review the statute here: https://law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-306/.
An obituary is considered a secondary source and does not carry the same legal weight as a certified vital record. Courts seldom accept an obituary alone as proof of death.
If a certified death certificate is unavailable—such as when the death occurred outside Virginia—you have these options:
- Request a delayed or foreign death certificate. Vital Records can issue a delayed certificate when original records are missing.
- Submit an affidavit or other sworn statements explaining why the certificate is not available.
- Provide alternative proof like an attending physician’s statement, hospital records, or cemetery burial records.
- When estates qualify as small estates (aggregate personal property under $50,000 and no real estate), petition for summary administration under Virginia Code § 64.2-600: https://law.lis.virginia.gov/vacode/title64.2/chapter6/section64.2-600/. Summary administration may allow the court to accept alternative proof of death.
Helpful Hints
- Contact the Virginia Department of Health’s Division of Vital Records to get or replace a death certificate.
- Visit the local Circuit Court Clerk’s office to confirm its documents and proof-of-death requirements.
- If you file an affidavit, include detailed information about why the certificate is unavailable and any supporting documents you have.
- Review local court rules; some circuits have specific forms for delayed certificates or non-availability affidavits.
- Consider consulting a probate attorney if the court questions your proof or if the estate has complex assets.