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
- 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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