I was told by the county clerk that since my father only had real estate in his name we did not have to go through probate. If we file a real estate affidavit will this turn the property over to us so that it can be sold to pay funeral expenses?
Estate Planning Attorney
It sounds like you probably received good advice, but there are some necessary follow-up questions in this case. First and foremost, did your father have a Last Will and Testament? If not, then the Circuit Court Clerk is most likely correct.
Virginia has ancient hold-over laws regarding how real estate passes to a decedent's heirs. The old legal saying among Virginia lawyers is that "real estate drops like a rock through probate." That means that unless the real estate is specifically devised in a deceased person's Last Will and Testament, then the surviving heirs take the real estate (sometimes despite what the Will says). If your father had a Will which properly states he wants the real estate to go to someone else, then what the Clerk told you is not correct.
If there was no Will, then the Clerk at the Circuit Court for your county gave you good advice; No Probate is necessary. You will file a real estate affidavit (also known as a "List of heirs") which shows the people who are to inherit the property of the decedent. In Virginia, if a spouse is surviving, and the decedent had no children other than by the surviving spouse, then the surviving spouse receives it all. If there is no surviving spouse, then the children receive it, per stirpes.
Once you file the real estate affidavit/List of heirs, you (the rightful heirs, and assuming that is the children from your question) are the owners of the property subject to the claims of any creditors that may appear. That is the sticking point. You may have to post a bond in order to sell the property if your father's death is under a year from the date of sale.
You should definitely seek the advice of an attorney to make certain there are no surprises when you find a buyer for the real estate. You do not want a cloud on the title to delay closing and risk scaring away a buyer (especially in this market).
Although I am licensed to practice law in Virginia, the information that I am giving you is of a general nature and does not constitute legal advice. Further, no attorney-client relationship is established by my sharing this general information. You should seek the advice of a qualified attorney in your area. If you need help finding an attorney, I would be happy to help you. Also, the Virginia State Bar Association (www.vsb.org) has an attorney referral service on their website.
Best of luck.