Virginia Estate Lawyers

This post is the first in a series of blog posts outlining the duties of the Personal Representative of the estate of a Decedent who died while he/she was a resident of Virginia.  Their purpose is to provide general instructions with regard to the performance of the duties of a Personal Representative, both before and after a person has been appointed and qualified as such.  As these instructions are intended to be general in nature, some of them may not apply to a particular Decedent’s estate.

This blog series will begin with an outline, in very general terms, of the duties of the Personal Representative of a Decedent’s estate.  It will then define certain basic terms used in this and future blogs posts on this topic.  Next, the blog will focus on actions that may be taken before the person has qualified as Personal Representative.  Finally, it will describe how a person may qualify as the Personal Representative of a Decedent’s estate.

1.  Duties of Personal Representative.  In general terms, once you have been appointed and qualified as Personal Representative of a Decedent’s estate your duties are (i) gather the assets, (ii) pay debts, taxes and expenses of administration, (iii) distribute the assets, and (iv) close out the estate.

2.  Definitions.  Following are the definitions of certain basic terms that will appear in these blogs:

“Personal Representative” of a Decedent’s estate refers to the Executor or Administrator, whichever is applicable.

“Executor” is the person appointed as such in the Decedent’s will.

“Administrator” is the person appointed as such by the appropriate circuit court, clerk or deputy clerk when the Decedent either dies intestate (without a will) or all the executors appointed in the will fail to qualify or cease to serve (a person must ask the court or clerk to be appointed and qualified as the Administrator of a Decedent’s estate).

“Residuary Beneficiaries” refer to the people or institutions who receive the balance of the Decedent’s estate after all debts, taxes, expenses of estate administration and any specific gifts under a will have been made.

3.  Actions One is Permitted to Take Prior to Being Appointed and Qualifying as Personal Representative.

A.  An Executor appointed under a will may provide for the burial of the Decedent, pay reasonable funeral expenses and preserve the estate from waste, but otherwise does not have the powers of an Executor until he qualifies by taking an oath and giving bond in the court in which or before the clerk by whom the will or an authenticated copy thereof is admitted to record.

B.  An Administrator may not take any action on behalf of the Decedent’s estate until he has been properly appointed and qualified.

4.  How to Probate the Will and be Appointed and Qualified as the Personal Representative of the Decedent’s Estate.

A.  If the Decedent had a will, typically the Executor will probate the will at the same time he qualifies as Executor in the Circuit Court clerk’s office in the county or city in Virginia where the Decedent resided; if he has no such house or known place of residence, then in a county or city where there is any real estate that is devised or owned by the Decedent; and if there be no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.  Therefore, the Executor will need to take the original will with him to the court or clerk’s office when he probates the will and qualifies as Executor.

B.  The Administrator would generally be appointed and qualified in the same city or county where the Decedent’s will would have been probated, had there been one.  During the first thirty days following the intestate Decedent’s death, the clerk may grant administration (i) to a sole distributee or his designee or (ii) in the absence of a sole distributee, to any distributee or his designee who presents written waivers of right to qualify from all other competent distributees.  After thirty days Virginia law provides for a certain order in which the court or clerk may appoint and qualify Administrators.

C.  When he qualifies, an Executor shall take an oath that the writing admitted to record contains the true last will of the Decedent, so far as he knows or believes, and that he will faithfully perform the duties of his office to the best of his judgment.

D.  When he is appointed and qualifies, an Administrator shall take an oath that the Decedent has left no will, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment.

E.  Generally the Executor will have to post a bond in the amount determined by the clerk or court, with corporate surety, unless the will waived the corporate surety requirement or all of the Residuary Beneficiaries under the will are also  Executors.  Generally the Administrator will have to post a bond in the amount determined by the clerk or court, with corporate surety, unless all of the distributees of the Decedent’s estate are also Administrators.  A corporate surety would generally be an insurance company that would charge a premium for providing this service which must be arranged beforehand by the Personal Representative.

F.  The Personal Representative will also have to pay a state and local probate tax that is based on the value of the estate.  The Personal Representative must provide the clerk or court with an estimate of the value of the estate at the time of qualification.  For every $100 of value, or fraction of $100, a probate tax of 10 cents is imposed by the state and a tax of 3.33 cents may be imposed by the city or county where the Personal Representative is qualifying.

G.  The Personal Representative must also file a List of Heirs that identifies the heirs of the Decedent in existence on the date of the Decedent’s death and pay a fee of $50 for recording this list.

H.  The Personal Representative must also provide the clerk or court with other general information about the Decedent and Personal Representative, as well as a copy of the death certificate.

I.  The clerk or deputy clerk will generally prepare all of the forms necessary to probate the will and qualify the Personal Representative from information provided by the Personal Representative unless the Personal Representative has done so beforehand.

Greg Johnson, the author of this post, is a C.P.A. and an attorney who serves as the head of the Business, Corporate, and Tax section of MartinWren, P.C.  For more information about Estate Administration or serving as an executor or administrator of an estate in Virginia, please contact Greg at 434-817-3100 or by email at [email protected].