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Frequently Asked Questions Regarding Estate Administration
1. What do the following terms mean?
a.
Administrable Estate: All property of the decedent (the individual
who has died) owned or controlled at his or her death that is
administered by the personal representative. It does not include
property that passes to others by contract or operation of law
upon the decedent's death such as insurance proceeds or jointly
owned property with right of survivorship.
b.
Administrator: A person or corporation that qualifies to administer
the estate of a decedent where the decedent did not leave a will.
c.
Beneficiary: One receiving an inheritance in a will.
d.
Bond: A certificate or evidence of a debt with a sum fixed as
a penalty, which contains a written agreement binding the parties
to pay the penalties. It contains a condition, however, that the
payment of penalty may be avoided by performance by some one or
more of the parties of certain acts.
e.
Codicil: A supplement or an addition to a will; it may explain,
modify, add to, subtract from, qualify, alter, restrain or revoke
provisions in an existing will.
f.
Commissioner of Accounts: Person(s) appointed by the Court to
oversee the reports and activities of personal representatives.
g.
Decedent: Deceased person.
h.
Executor: A person or corporation that was named in the will of
the decedent to administer the estate of the decedent and who
qualifies to do so.
i.
Fiduciary: A person in a position of trust with respect to another's
property; a general term used to refer to executor, administrator,
or trustee.
j.
Heirs at Law: Persons who would inherit the decedent's estate
if the decedent died without a will.
k.
Intestate Estate: An estate to be administered without a will.
l.
Letter of Administration or Qualification: A document issued by
the circuit court clerk by which the executor or administrator
is authorized to take charge of the goods of the decedent.
m.
Personal Representative: An executor or administrator. This term
does not include a trustee.
n.
Probate: Procedure whereby a will is admitted to record in the
clerk's office.
o.
Taxable Estate: All property in which the decedent had an interest
less the allowable deductions.
p.
Testate Estate: An estate to be administered pursuant to a will.
q.
Testator: One who dies leaving a will.
r.
Trustee: A person or corporation that administers a trust.
s.
Will: Individual's declaration of property disposal after death.
2.
What decisions need to be made upon death of a loved one?
Prior to probate, there are numerous decisions that must be made
by a family member or other close person immediately when an individual
(referred to as the "decedent") dies. These decisions
include the following:
a. Organ Donation: Instructions on organ donations should be followed
to the extent practical. Procedures for making organ donations
are governed by the applicable sections of the Virginia Code (statutes
enacted by the Virginia General Assembly). Under these sections,
persons may make organ donations ("anatomical gifts")
or refuse to do so by any document of gift. This is often found
on the decedent's driver's license. But a document of gift may
also include the will or other writing. In addition, the next
of kin may make the gift if the decedent has not made an unrevoked
refusal at the time of his or her death.
b. Autopsy: The Code of Virginia contains sections that govern
autopsies where an official inquiry into a death is authorized
or required by law, and also contains separate sections that set
forth procedures for the next of kin to authorize an autopsy to
determine the cause of death. The factors that should be considered
in requesting an autopsy include: (i) qualification for accidental
death benefits under an insurance plan; (ii) possible evidence
of capacity at the time of executing a will; and (iii) possible
evidence for medical malpractice, wrongful death, or other actions,
such as for black lung disease or asbestosis.
c. Funeral Arrangements: These arrangements should be made on
the date of death. The body should be buried in accordance with
the decedent's prearrangements or wishes. These may be expressed
in a written letter or sometimes in a will. If no written instructions
are found regarding burial and no arrangements were previously
made, the surviving spouse or next of kin should make such arrangements.
d.
Payment of Funeral Expenses: The estate (generally including the
property owned by the decedent at his death) is liable for the
funeral and burial expenses. Often, the funeral and burial will
take place before the will is read or even found. If the will
has already been located, it is usually not admitted to probate
until after the funeral. However, even before an executor (the
individual or corporation named in the will to administer the
estate) has qualified, the executor does have the power to provide
for burial of the decedent and to pay the reasonable funeral expenses.
In circumstances where there is no will, a family member generally
advances the money to pay for expenses and later seeks reimbursement
once someone does qualify as an administrator (the individual
or corporation appointed to administer the estate where there
is no will).
The
person making these arrangements must carefully monitor the expenses
particularly if there is reason to believe that the decedent's
estate will be insufficient to cover all of the claims against
it. The priority limitation on the amount of estate assets that
can be used to cover such expenses when the assets of the decedent's
estate are insufficient is $2,000.
e. Death
Certificates: The funeral home will generally obtain the death
certificates and should be advised of the number that will be
needed. These will be used to verify death in order to initiate
probate proceedings, transfer assets, and collect on insurance
policies.
f. Obituary
and Notification of Family: The family should notify all close
family members of the death and funeral arrangements. And although
the executor may incur reasonable expenses for an obituary notice
before qualification, it is wiser for the family to undertake
this responsibility.
g. Locating the Will: There are several places where the decedent's
original will may be found. The decedent's safe deposit box is
the first logical choice. If the box is held in joint tenancy,
the surviving joint tenant will have access to the box. If there
is no surviving joint tenant, Virginia law does provide for access
after the death of the holder to look for a will. And once an
executor or administrator has been appointed, he or she will have
access to the box.
Another
possible location for the original will is a corporate fiduciary
who is named in the will. Although it is possible an attorney
may possess the original will, most attorneys who draft wills
do not retain the original wills.
If a person
in possession of the original will refuses to produce it, an order
to compel production may be obtained from the circuit court.
h. Securing
Assets: Under Virginia law, the executor of the estate has the
power to preserve the estate from waste even before his or her
qualification. It is very important for the executor to secure
the home and business of the decedent including providing security
on the day of the funeral if advisable. Jewelry, works of art,
and other valuable items should be secured.
Other steps
should be taken to secure assets including termination of home
deliveries, withholding delivery of mail, obtaining insurance
coverage to protect persons concerned such as fiduciaries, and
arranging for care or removal of perishable property such as pets
and plants.
3.
What is probate?
Technically,
probate refers to the procedure whereby a will is admitted to record
in the clerk's office. However, the term has also been used to refer
to qualification of a personal representative (an executor where
there is a will or an administrator where there is no will) and
the entire process of administering a person's estate. In Virginia,
you are permitted to record the will without the qualification of
a personal representative.
4.
Is probate or qualification of a personal representative necessary
to transfer the decedent's assets?
In order
to determine whether probate or qualification is necessary or advisable,
an identification of probate assets must be made. Probate assets
are those in which the decedent had an interest that do not pass
by operation of law or by contract to another upon the decedent's
death. For example, probate assets would not include insurance proceeds
with a named beneficiary or property held jointly with another with
right of survivorship.
Real Estate.
The will must be probated if the decedent owned real estate that
did not pass to another person by right of survivorship. If the
will does not dispose of the real estate, then the list of heirs
must establish the ownership. Probate of a will solely to pass title
does not require qualification of a personal representative.
Personal
Property. The will must be probated and a personal representative
must be appointed to transfer personal property owned solely by
the decedent unless a specific exception applies. For example, the
Virginia Small Estates Act authorizes indebtedness owed the decedent,
tangible personal property, stock, and other intangible property
owned by the decedent to be paid or transferred to the decedent's
successor upon being presented an affidavit by the successor stating
that (a) the decedent's entire personal probate estate does not
exceed $15,000; (b) at least 60 days have passed since the death;
(c) no personal representative has been appointed and no applications
for appointment are pending; (d) any will of the decedent has been
probated and a list of heirs filed; and (e) the claiming successor
is entitled to the requested payment or delivery, and on what basis.
Other exceptions are contained in the Code of Virginia. The applicable
section must be reviewed, but some exceptions include the following:
Bank account balance not exceeding $10,000 can be paid to spouse
or other individual entitled under the law if there has been no
qualification and 60 days have passed since death;
Transfer of vehicles and watercraft can be made where there has
been no qualification;
Tangible personal property is often distributed to beneficiaries
on an informal basis absent disagreement;
Miscellaneous payments are authorized under the Code of Virginia
without appointment of a representative for sums up to $10,000 or
$15,000 depending on the statute (payments from the Commonwealth
of Virginia, the United States, labor union, or employer; transfers
by a corporation of stock; payments from a trust or estate, etc.).
Even if qualification
of a representative is not necessary, it is advisable to admit the
will to record so as to establish clear evidence of title to property.
In addition, if there is a surviving spouse, the spouse's right
to claim the elective share will not expire until six months after
the later of the admission of the will to probate or the qualification
of an administrator in an intestate estate.
5.
Are there any reasons for the appointment of a personal representative
even when it is not required to transfer assets?
There are
some advantages to be gained by appointing a personal representative.
These include: (a) To test the validity and amount of any claims
against the decedent, and orderly dispose of all such claims; (b)
To effect an orderly disposition of assets remaining after payment
of claims, with the interests of the beneficiaries protected by
a fiduciary; (c) To create a public record so as to provide interested
parties with notice and opportunity to object thereby providing
protection to the fiduciary for his or her actions.
6.
When should the will be probated or the personal representative
appointed?
There is
no deadline by which a will must be probated or estate administration
must be started. The death of a loved one is a particularly emotional,
stressful, and busy time. The probate of the will can usually wait
until a week or so after the funeral. But it is recommended that
the initial steps in the estate process start within thirty (30)
days after death.
7.
Where is the will probated and the personal representative appointed?
Virginia does not have a separate probate court. The will should
be probated in the Circuit Court of the city or county where the
decedent resided or where the decedent owned real estate; or if
none, where the decedent died or has any estate. If the decedent
died in a nursing home or similar institution, then that person's
residence is presumed to be where he or she resided prior to becoming
a patient at such home.
8.
Who may qualify as adminstrator of an estate where there is no will?
To qualify,
an individual must be eighteen years of age or older, and if surety
on the bond is required, able to obtain that surety. The Court or
Clerk must be satisfied that the person is suitable and competent
to perform the duties of the office. There is an order of preference
with the surviving spouse being given first preference.
9. How is the process of probate and qualification
initiated?
In general,
it is advisable to contact the local Clerk's Office for forms and
local procedure.
It may also be necessary to make appointment with Clerk of Circuit
Court. All executors and/or administrators should qualify together.
Be prepared to produce the following documents before Clerk:
- original
will and all codicils
- affidavits
or depositions of witnesses if will not self-proving (one that
contains specific language required by law at the end of the will)
- death
certificate
- memorandum
of facts
- list of
heirs
- notice
of probate
- affidavit
of probate
- probate
tax return
- inventory
- If named
executor declined, letter refusing qualification and letter of
nomination for personal representative from heirs and beneficiaries
- check
for payment of probate taxes and clerk's fee
10.
What are the basic duties of an administrator or executor?
First and foremost, the administrator or executor must ascertain
and take possession of the decedent's property over which the executor
or administrator has responsibility or control. The fiduciary (executor
or administrator) must also determine the liabilities (debts) of
the estate and determine the value of the estate over which the
fiduciary does not have control (for tax-accounting reasons). In
addition, the fiduciary must see to the payment of debts of the
decedent and the estate (including taxes) and the sale or distribution
of the property of the estate in accordance with the dictates of
the will and Virginia law. Generally, the fiduciary must file a
complete inventory for the estate within four months of qualification
with the Commissioner of Accounts. The Commissioner of Accounts
is a local person (generally an attorney) appointed by the Circuit
Court to oversee and to ensure that estates are properly handled.
The fiduciary must also give written notice of qualification or
probate to the heirs and beneficiaries of the estate or those who
would have been the heirs, within thirty days after qualification
or probate.
Finally, the fiduciary must make an accounting (generally a list
of all assets of the estate, all distributions and all assets on
hand) on a yearly basis until a final accounting can be made. Often,
a first and final accounting can be made at the conclusion of the
first year following qualification.
You may review
forms, instructions and samples related to estate administration
on the Virginia's
Judicial System Forms web page.
It is important
to note that there are more than two hundred sections of the Code
of Virginia pertaining to the administration of estates. Therefore,
only some basic and very general information is provided here.
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information contained in these web pages is not legal advice. The
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