Frequently Asked Questions about Probate, Estate, Trust & Conservatorship Sales
This information is provided as an aid to the general public in understanding the basic procedures involved in probate and the administration of estates. This guide is not intended to be inclusive, as the laws in Virginia regarding probate and estate administration are complex and subject to change. Furthermore, this information is not intended to take the place of legal counsel provided by an attorney.
In order to commence the formal administration of a decedent’s estate there must be a probate of the decedent’s last will and testament and a qualification as Executor of that will, or qualification as Administrator of an intestate decedent’s estate.
A testate estate is one in which the decedent had a valid will.
An intestate estate is one in which the decedent died without a will.
What is Probate?
Probate is the offering at local Circuit Court Clerk’s office of a document, or multiple documents, as the decedent’s true last will and testament. The will and any codicils thereto, are filed with the Clerk of Court and placed on the public records maintained in the record room of the Clerk’s office.
What is Qualification?
Qualification is a request to the Clerk of Court, usually made at the time of probate, for appointment of a person to administer the decedent’s estate. This is either an Executor, if the decedent had a will, or an Administrator, if the decedent died without a will. Both Executor and Administrator will be called the “Personal Representative” and lot of the time people use all three of these names interchangeably.
Where do Probate and Qualification Occur?
In the office of the local Clerk of the Circuit Court. Here are some links to local Circuit Court Probate Websites.
How do I determine where to probate the will or qualify as personal representative?
Jurisdiction is determined by the last place of residence prior to death. If the decedent was in a nursing home at the time of death, jurisdiction is determined based on the residence occupied before the decedent became a resident of the nursing home.
How to Schedule Probate and Qualification.
Call the deputy clerk of the Circuit Court, probate section to schedule an appointment and to obtain additional information regarding the (i) forms to be filed; (ii) fees to be paid and (iii) documents required to be presented at the time of probate.
Is Probate of a Will Required?
Generally yes. It is a felony criminal offense to fraudulently conceal or destroy a will or codicil with the intent to prevent probate. Section 18.2-504, Code of Virginia (1950), as amended.
However, if all assets of the decedent were titled with another person with the right of survivorship, or were payable on death according to the terms of the instrument to a named beneficiary (i.e. life insurance), qualification may not be necessary.
Even if no qualification is necessary, it is a good practice to probate the decedent’s will. The probate notifies a title examiner that title to real estate has passed due to the death of a co-owner when the property was jointly titled, with survivorship.
Is Qualification Required?
Generally yes, however in many cases qualification may not be required. If assets were held in the decedent’s name only, qualification is almost always required in order for someone to be authorized by the Court to act as executor or administrator of the estate and to have the authority to demand delivery of the decedent’s assets from the person or company holding the decedent’s assets.
Generally banks, brokerage firms, life insurance companies and others will not pay the assets to anyone other than a properly qualified executor or administrator with “letters testamentary” (This is a term referring to the qualification certificate received from the Clerk of Court at the time of qualification).
For “small estates” you may try to obtain relatively small amounts in bank accounts, credit unions and other institutions by application of the VIRGINA SMALL ESTATE ACT, Section 64.2-600 and following sections, Code of Virginia.This section should be consulted for the requirements to be satisfied to obtain small assets through this procedure. The Commissioner of Accounts’ Office has no jurisdiction in regard to the use of the Small Estate Act in lieu of qualification, and will not give advice on the use of this procedure or compliance with the Virginia Code. If you believe this section may apply to the estate with which you are involved, it is suggested that you consult with an estate attorney.
How do I decide whether or not I should probate a will or qualify as Executor or Administrator of an estate ?
There are several reasons why a will should be probated (or recorded). The three basic reasons are:
- There may be assets that need to be administered by a personal representative (i.e., assets in the decedent’s name alone, not held jointly with a right of survivorship)
- The decedent may have owned real estate, either alone or jointly with someone.**
- The will, once probated, would become a matter of public record, thereby serving as a formal genealogical link to the decedent’s family.
If the decedent died with a will, the personal representative is strongly advised to record the will in the Circuit Court Clerk’s Office, even if qualification is not necessary. By recording the will, it becomes a permanent record available for review by all family members as well as potential beneficiaries and creditors. Furthermore, if additional assets are discovered which require the personal representative to qualify, the process of recording the will will have already been accomplished.
**If the decedent died without a will and held only real estate at the time of his/her death, the real estate passes to the heirs at law in accordance with the laws of intestate distribution. Although qualification is not necessary under these circumstances, it is necessary to file a Real Estate Affidavit (form CC-1612) in order for the Tax Assessor’s records to be properly updated and to reflect the intestate transfer of property in the Court’s land records.
Do I need an Attorney to assist me with qualification and the probate process??
No, you are not required to have a lawyer.
HOWEVER, THE SERVICES OF AN EXPERIENCED ESTATE ADMINISTRATION ATTORNEY IS OFTEN RECOMMENDED AND DESIRABLE.
Many legal questions arise in the administration of an estate, large or small, which require the opinions and advice of an estate attorney. The initial evaluation of the need to probate a will and qualify as personal representative often justifies the engagement of an estate attorney to make that determination.
An estate attorney will be experienced in dealing with the Court, Clerk’s office and the Commissioner of Accounts’ office. Procedures can be simplified, errors avoided and difficult legal questions resolved without the complications that may otherwise develop without such assistance. We can provide you with some recommendations of Attorneys that work with Estate Administration or you can find one in the local telephone directory.
ESTATE ADMINISTRATION CAN BE VERY COMPLEX. Many rules of interpretation and statutes govern the administration of estates. You are encouraged to seek the guidance of competent legal counsel. You may discuss issues with the office of the Commissioner of Accounts, but this office cannot, and will not, serve as your legal representative. Legal fees for matters outside of the expertise of the executor or administrator are generally payable from the estate, if reasonable. If you have any question about charging the fees to the estate, you should contact the Commissioner’s office before incurring such costs. Such fees must be “reasonable” in the determination of the Commissioner of Accounts in order to be approved as a proper expense of administration of the estate.
How do I estimate the estate and real property value?
Include all property (real and personal) that was in the decedent’s name alone at the time of his/her death. Do not include property held jointly with a right of survivorship or property payable to a named beneficiary (e.g., life insurance policies with a named beneficiary). Include tangible personal property as well as intangible assets (e.g., stocks, bonds, etc.). Estimate the fair market value of the assets as of the decedent’s date of death. DO NOT DEDUCT debts owed, loans, or mortgage amounts. Compute separate totals for personal property and real property. Personal Representatives can use the tax assessment of value for the initial inventory but if the actual sales price is far off, then an amended inventory will be required which will cause the estate to incur additional costs. We offer free Market Analysis for all of our clients to make sure they have the most accurate estimates of value saving the estate money down the road from not having to redo inventories and in turn increasing the proceeds to the heirs.
What are Bond and Surety and Are They Required?
Bond is a promise in writing given by the person being appointed (executor or administrator) in an amount set by the Clerk of the Circuit Court, for the faithful performance of the duties regarding the estate. If the person administering the estate fails to properly perform his duties, he can be required to pay to the estate the sums lost to, or taken from, the estate. Bond is required on all qualifications.
NOTE: Once you qualify and bond is set based on the value of the estate’s assets you declare to the Clerk of Court, your bond will not be reduced until after your inventory has been filed, reviewed and approved by the Commissioner’s office. For example, if you declare $50,000 in estate assets when qualifying before the Clerk, bond will be set based on your declaration. If the next day you find out that the $50,000 was in a survivorship account and that no qualification was required, you may not return to the Clerk’s Office and “unqualify” or obtain a bond reduction. You will have to file an inventory with the Commissioner of Accounts with proof that the account was a survivorship account. At that time the Commissioner may review the bond and surety, if any, and the further need to account. (Section 8.01-120 B., Code of Virginia (1950), as amended.
Surety is a person or corporation promising to pay the estate for the failures or defaults of the fiduciary who gives the bond at qualification. This is most always a bonding company engaged in the business of acting as surety, for a premium payment payable by the estate. Check with the Clerk of the Circuit Court to see if surety will be required on your bond at the time of qualification. Surety may be waived under the terms of the decedent’s will. If surety is required by the Clerk’s office, the bonding agent will need to be present at the time of qualification.
How do I arrange for surety?
If it is determined that surety on a bond is required, a bonding company should be contacted to act as surety. We can provide you with some recommendations or you can find bonding and/or insurance companies that provide for fiduciary bonds in the local telephone directory.
What powers does the Personal Representative have with respect to Real Estate?
This is an area of frequent mistake and misunderstanding:
Testate Estates (Decedents dying with a Will)
- If the will of a decedent directs the fiduciary to sell real estate then it is to be sold and the proceeds added to the estate as directed by the will.
- Wills generally include the power of sale by specific language or by the incorporation by reference of Section 64.2-105, Code of Virginia (1950)(previously 64.1-57, Code of Virginia), as amended. This is not an order to sell. If the estate has sufficient assets to pay its debts and all specific bequests, and the personal representative does not need to sell the real estate to satisfy a mortgage or to pay other debts and expenses of the estate, it is generally not necessary for an executor to sell real estate. The reason for this is that real estate is the last asset of a decedent which is looked to for the payment of the decedent’s debts. Personal property must be exhausted before real estate is sold to pay the decedent’s obligations.
- Quite often it is desirable for the executor who has power of sale to sell the real estate rather than have the real estate pass to the named beneficiary. If the beneficiary is a minor it is generally undesirable to have a minor own real estate, especially a very young beneficiary. It is recommended that the fiduciary obtain the approval of the Commissioner of Accounts for the sale of the minor’s property rather than a distribution of the real estate to the minor. In that manner the minor receives the benefit of the real estate but in the form of cash which is held in trust, or in a custodial or guardianship account until the minor reaches the age of majority (18) or distribution as provided by the will.
Often there are many beneficiaries of the real estate. If the residuary provisions of the will have many beneficiaries inheriting real property, it is unlikely that those beneficiaries will be able to agree on the disposition of the real estate or they may not wish to own a minority interest in the real estate. With the consent of the Commissioner of Accounts and/or the written consent of all residuary beneficiaries, the executor may sell the real estate (provided he has power of sale) and administer the net proceeds as part of the estate, saving the residuary beneficiaries from the tedious process of circulating sales contracts, listing agreements, deeds and other documents for the consent of all to obtain the sale.
- NOTE : Specifically devised real estate should not be sold by the executor except in very rare situations, which should be discussed with legal counsel.
Intestate Estates (Decedents dying without a Will)
- Intestate succession to real estate is a completely different situation. The administrator of an estate of a decedent who died without a will has no power of sale over real estate without specific order of the Court. This order may be obtained by petition to the Court requesting the power to administer and sell real estate. This is necessary only where the real estate is needed to satisfy debts and obligations of the estate or satisfy an existing mortgage. The services of an attorney are necessary in determining if it is prudent to request the power of sale, and if so in filing the petition and obtaining the order. Without that order, an administrator has no control over the real estate of a decedent. It is not part of the probate estate and will pass by operation of law to the intestate beneficiaries, subject to being taken by the administrator under Court order granting the power of sale. Do not try to sell real estate as an administrator without having received the authority of the Court to do so.
Consult with an attorney to determine if petitioning for the power to sell is prudent.