PROBATE AND BEING AN EXECUTOR OR EXECUTRIX FAQ

 

 

1. What is probate?
2. When is probate necessary?
3. What is the basis of probate jurisdiction?
4. Where do you go to probate a decedent’s estate?
5. What is an executor or executrix?
6. Can an out of state resident be an executor or executrix?
7. What is the first thing that you should do if you believe you are someone’s executor or executrix?
8. Prior to being appointed as the executor or executrix, what may you do?
9. Should one be careful with respect to funeral expenses?
10. After locating the decedent’s will, what should you do?
11. How can you tell if a will was made to be self-proved?
12. Who needs to be present to get the will probated?
13. What do you do if the witnesses to the decedent’s signing of the will are deceased and the will is not self-proved?
14. How do you arrange to get the will probated?
15. Before whom does the executor or executrix qualify?
16. What if the will does not name anyone or the person named has died, refuses to qualify, or fails to give bond?
17. What if the decedent did not have a will?
18. Is there ever a situation where the surviving spouse cannot be the administrator of the estate of a decedent who dies without a will?
19. After being appointed executor or executrix, what should you do?
20. Does the decedent’s property need to be valued?
21. How much time do you have before you must invest or loan the principal you collect?
22. What is the order in which debts of the decedent are to be paid?
23. What are some of your other duties as executor or executrix?
24. How much is the probate tax in Virginia?
25. Is the probate tax on all of the decedent’s assets?
26. Which of the decedent’s assets are subject to United States and Virginia estate taxes?
27. What are the duties of the Commissioner of Accounts?
28. When may a personal representative be compelled to make a distribution?
29. What kind of checking account may the Commissioner of Accounts require in order to approve an accounting?
30. When must a personal action be brought against someone who has died?


 

1. What is probate?

Probate is a court supervised process for winding up the affairs of an individual who has passed away. The decedent’s debts are paid, the decedent’s taxes are filed and paid, the decedent’s property divided among his or her designated heirs according to decedent’s will, or if there is no will, according to intestacy law.

2. When is probate necessary?

Probate is necessary if the decedent owned real property which does not pass to another by survivorship.

Probate is also necessary if the decedent owned personal property which was titled in his or her name alone and title cannot pass under certain remedial statutes whose purpose was to reduce expense in the handling of small estates.

These remedial statutes address:

(1) an account in a bank if it is less than or equal to $15,000.00 (Va. Code § 6.1-71),

(2) securities issued by a corporation whose value is less than or equal to $15,000.00 (Va. Code § 64.1-123.1), and

(3) a car (Va. Code § 46.2-364), or an account at a credit union if it is less than or equal to $10,000.00. (Va. Code § 6.1-208.4)

Regardless of whether probate is necessary, many recommend that the decedent’s will be probated since assets might be discovered later on.

3. What is the basis of probate jurisdiction?

The basis is the death of the decedent. Circuit court clerks require death certificates to be presented before granting probate.

4. Where do you go to probate a decedent’s estate?

Virginia’s circuit courts, their clerks, and their deputy clerks handle probate. The rules for determining which circuit court to go to are as follows:

(1) in the county or city wherein the decedent has a mansion house or known place of residence;

(2) if he or she has no such house or known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and

(3) if there be no such real estate, then in the county or city wherein he or she dies or a county or city wherein he or she has estate. (Va. Code § 64.1-75.)

Where the decedent had because of advanced age or impaired health either voluntarily or involuntarily become a patient in a nursing home, a convalescent home, or a similar institution, the place of legal residence of such person shall be presumed to be the same as it was before he or she became such a patient; provided, however, that such presumption may be rebutted by competent evidence. (Va. Code § 64.1-76.)

5. What is an executor or executrix?

An executor (male) or executrix (female) is a person who is appointed by the will of another person who dies. The executor or executrix carries out the decedent’s directions contained in his or her will concerning the disposition of his or her property.

6. Can an out of state resident be an executor or executrix?

Yes, provided that (1) you give bond with surety, (2) an instate resident qualifies at the same time as you, or (3) the amount coming into the hands or possession of the personal representative, guardian of a minor, conservator or committee does not exceed $10,000 and the clerk consents in his discretion. Va. Code §§ 26-4 & 26-59.

7. What is the first thing that you should do if you believe you are someone’s executor or executrix?

You should locate and obtain possession of the decedent’s will.

8. Prior to being appointed as the executor or executrix, what may you do?

Prior to being appointed, you may search for the decedent’s will, provide for the burial of the decedent, pay reasonable funeral expenses, and preserve the decedent’s assets (estate) from waste.

Since you have no authority to use funds of the decedent, you should keep in mind that if you are concerned about whether the decedent’s estate has enough money in it to pay all of his or her debts, you might not get repaid.

Va. Code § 64.1-157 - 3 only provides for a priority not to exceed $2,000 for funeral expenses.

And that priority is trumped by a family allowance, exempt property, and a homestead allowance. See, Va. Code §§ 64.1-157 - 1 & 2.

9. Should one be careful with respect to funeral expenses?

Yes. The reasonableness of funeral expenses typically can become an issue. See Va. Code §64.1-136.1. Written approval of funeral expenses should be obtained from the residuary beneficiaries where payments seem excessive.

If the beneficiaries are minors or incapacitated and cannot consent, the Commissioner of Accounts will typically follow the rule set forth in Scott Funeral Home v. First Nat. Bank, 211 Va. 128, 130-131, 176 S.E.2d 335, ___ (1970), wherein the Supreme Court stated:

"In determining the reasonableness of funeral expenses, each case must rest on its own particular facts and circumstances. However, in arriving at what is reasonable the prevailing rule is that the amount of funeral expenses allowable against a decedent's estate ‘must correspond with decedent's station in life and matters in relation thereto, and with the value of the estate.’"

10. After locating the decedent’s will, what should you do?

You should determine whether the will meets the statutory requirements to be a valid will.

The will can be solely in the decedent’s handwriting and signed by him. (Va. Code § 64.1-49.)

Or the will can be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature of the decedent; and moreover, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. (Va. Code § 64.1-49.)

You should also determine whether the will was made to be self-proved.

You should determine whether security will be required on the executor’s or executrix’s bond or was waived in the will.

You should determine whether you need to probate the will.

You should contact the clerk and determine what else the clerk may require to admit the will to probate. Generally speaking, you may also have to produce a Memorandum of Facts about the decedent, a List of Heirs, a Probate Tax Return, evidence of death, and fees and taxes.

11. How can you tell if a will was made to be self-proved?

There are two ways to make a will self-proved.

First, a will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of this Commonwealth or the laws of the state where acknowledgment occurred or before an officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed, and evidenced by the officer's certificate, attached or annexed to the will. The officer's certificate shall be substantially as follows in form and content:

"STATE OF VIRGINIA

"COUNTY/CITY OF ____________

"Before me, the undersigned authority, on this day personally appeared ________, ________, and _______, known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, _____, the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of said will, and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory.

"_______________________

Testator

"_______________________

Witness

"_______________________

Witness

"Subscribed, sworn and acknowledged before me by __________, the testator, and subscribed and sworn before me by ________________ and __________, witnesses, this ____ day of ________, A.D., ________.

"SIGNED _______________________________________

"(OFFICIAL CAPACITY OF OFFICER)"

The sworn statement of any such witnesses taken as herein provided, whether before, on or after July 1, 1986, shall be accepted by the court as if it had been taken ore tenus before such court, notwithstanding that (i) the officer did not attach or affix his official seal thereto or (ii) the acknowledgment was before an officer authorized to administer oaths under the laws of another state. Any codicil which is self-proved under the provisions of this section which also, by its terms, expressly confirms, ratifies and republishes a will except as altered by the codicil shall have the effect of self-proving the will whether or not the will was so executed originally. (Va. Code § 64.1-87.1)

Second, this alternative format may be used:

"STATE OF VIRGINIA

"CITY/COUNTY OF __________

"Before me, the undersigned authority, on this day personally appeared __________, __________, and __________, known to me to be the testator and the witnesses, respectively whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, __________, the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed, that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who in his presence and at his request and in the presence of each other did subscribe their names thereto as attesting witnesses on the day of the date of said will and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory.

"Sworn and acknowledged before me by ________, the testator, and _________ and __________, witnesses, this _____ day of ______ A.D., _____.

"SIGNED __________________________

"_________________________________

"(OFFICIAL CAPACITY OF OFFICER)" (Va. Code § 64.1-87.2.)

12. Who needs to be present to get the will probated?

If the will is self-proved, no witnesses are needed to prove the will.

If the will is not self-proved, at least one of the witnesses must be located and arrangements made with him or her to attend the probate.

If the will is solely in the decedent’s handwriting, two disinterested witnesses must be found who recognize the decedent’s handwriting and arrangements made for them to attend the probate. (Va. Code § 64.1-49.)

13. What do you do if the witnesses to the decedent’s signing of the will are deceased and the will is not self-proved?

You must prove their signatures by two witnesses at probate.

14. How do you arrange to get the will probated?

You call up the clerk of the appropriate circuit court and make an appointment.

You then arrange to have any necessary witnesses present.

Finally, if security is needed, you arrange to have a surety bond posted.

15. Before whom does the executor or executrix qualify?

An executor or executrix nominated by a will may be appointed and qualify before the clerk. (Va. Code § 64.1-77.) No notice need be given to the beneficiaries.

16. What if the will does not name anyone or the person named has died, refuses to qualify, or fails to give bond?

Either the court or the clerk may grant administration to a residual or substantial legatee under a will or his or her designee. (Va. Code § 64.1-77.)

17. What if the decedent did not have a will?

Either the court or clerk may qualify an administrator giving preference generally speaking to the surviving spouse and then to the distributees. (Va. Code § 64.1-118.)

18. Is there ever a situation where the surviving spouse cannot be the administrator of the estate of a decedent who dies without a will?

Two old Virginia cases indicate that when a surviving spouse has by a prenuptial agreement or an antenuptial settlement relinquished all of that spouse’s marital rights to the decedent’s property, then, unless and until the agreement or settlement is cancelled and annulled, neither the surviving spouse nor any other person designated by him or her, has the right of administration of the decedent’s estate.

These cases may still be good law and are cited in the case notes following Va. Code § 64.1-118 entitled "What clerk or court to appoint administrator of estate; who to be preferred." In part, it provides:

"A. The court or the clerk who would have jurisdiction as to the probate of a will, if there were a will, shall have the jurisdiction to hear and determine the right of administration of the estate in the case of a person dying intestate. Administration shall be granted as follows:

"1. During the first thirty days following the intestate'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."

But most prenuptial agreement contain language specifically stating that the surviving spouse cannot be the executor or administrator.

19. After being appointed executor or executrix, what should you do?

You should obtain an EIN number for the estate (file an SS 4 form or call (866) 816 – 2065) and begin to collect the assets of the deceased.

If the assets passing under the will or by intestacy exceed $5,000.00, as a personal representative of a decedent's estate or as a proponent of a decedent's will when there is no qualification, you are required to provide written notice of qualification for probate within 30 days, and notice of entitlement to copies of wills, inventories, accounts, and reports, to the following persons:

(1) The surviving spouse of the decedent, if any;

(2) All heirs at law of the decedent, whether or not there is a will;

(3) All living and ascertained beneficiaries under the will of the decedent, including those who may take under § 64.1-64.1 and beneficiaries of any trust created by the will; and

(4) All living and ascertained beneficiaries under any will of the decedent previously probated in the same court. See, Va. Code § 64.1-122.2.

The decedent’s personal property will need to have its ownership transferred to the "Estate of the [decedent]." Banks and other entities will want the Estate’s EIN number.

20. Does the decedent’s property need to be valued?

As executor or executrix, you are responsible for determining the value of all of the assets of the decedent.

This includes both probate assets and non-probate assets.

The value of every item in the gross estate is its fair market value at the date of death (or the alternate valuation date 6 months later).

You may use an expert as is necessary to determine the value. See IRS Regulation 20-2031-1 and Form 706 (United States Estate Tax Return) which offer detailed instructions for determining fair market value.

21. How much time do you have before you must invest or loan the principal you collect?

You have four (4) months after you collect any principal to invest or loan the same.

Virginia Code § 26-39 provides "Whenever a guardian of an estate, conservator or other fiduciary charged with the investment of funds collects any principal he shall have a reasonable time not exceeding four months to invest or loan the same, and shall not be charged with interest thereon until the expiration of such time."

22. What is the order in which debts of the decedent are to be paid?

When the assets of the decedent in the hands of his personal representative are not sufficient for the satisfaction of all demands against him, they shall be applied in the following order to the payment of:

(1) Costs and expenses of administration;

(2) The allowances provided in Va. Code § 64.1-151.1 et seq.;

(3) Funeral expenses not to exceed $2,000;

(4) Debts and taxes with preference under federal law;

(5) Medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him not to exceed $400 for each hospital and nursing home and $150 for each person furnishing services or goods;

(6) Debts and taxes due this Commonwealth;

(7) Debts due as trustee for persons under disabilities, as receiver or commissioner under decree of court of this Commonwealth, as personal representative, guardian, conservator or committee, when the qualification was in this Commonwealth and for moneys collected by anyone to the credit of another and not paid over, regardless of whether or not a bond has been executed for the faithful performance of the duties of the party so collecting such funds;

(8) All other claims. (Va. Code § 64.1-157.)

23. What are some of your other duties as executor or executrix?

Among other things, you will need to prepare an Inventory for the court, determine the necessity of filing United States and Virginia estate tax returns, transfer property to the beneficiaries, pay probate tax, do a final accounting for the court, and distribute the assets to the beneficiaries.

24. How much is the probate tax in Virginia?

It is ten cents ($0.10) on a hundred dollars ($100.00) or one dollar ($1.00) on a thousand dollars.

25. Is the probate tax on all of the decedent’s assets?

No. It is only on those assets that pass under the decedent’s will. It is not on those assets which pass by contract or by operation of law.

For example, the probate tax is not paid on:

(1) assets owned as tenants by the entirety with the right of survivorship,

(2) assets owned jointly with the right of survivorship, e.g., joint bank accounts, etc.,

(3) assets held in trust which pass pursuant to the terms of the trust agreement,

(4) life insurance proceeds which are payable to a beneficiary designated in the policy or on a beneficiary form, and

(5) pension, profit–sharing, Keogh, and IRA accounts which will be paid to the beneficiaries designated on the beneficiary form.

26. Which of the decedent’s assets are subject to United States and Virginia estate taxes?

Both probate and non-probate assets are subject to estate taxation provided their value exceeds the exemption amount in the year the decedent dies.

27. What are the duties of the Commissioner of Accounts?

The Commissioner has 5 basic duties with respect to estates of decedents:

(1) protect beneficiaries,

(2) resolve creditor claims,

(3) make sure Virginia receives the taxes due it,

(4) make the fiduciary do what the testator desired, and

(5) state an account which will provide an appropriate permanent record.

28. When may a personal representative be compelled to make a distribution?

A personal representative shall not be compelled to pay any legacy given by a will or make distribution of the estate of his decedent until after six months from the date of the order conferring authority on the first executor or administrator of the decedent.

Even then he shall not be compelled to make such payment or distribution until the legatee or distributee shall give him a bond with sufficient surety with condition to refund a due proportion of any debts or demands which may afterwards appear against the decedent and the costs attending their recovery. Va. Code § 64.1-177.

29. What kind of checking account may the Commissioner of Accounts require in order to approve an accounting?

A Commissioner of Accounts may require a checking accounting in which the bank returns the actual cancelled checks, showing not only to whom the check was made out, but also whether the check was cashed and by whom.

These actual cancelled checks may have to be produced to the Commissioner.

30. When must a personal action be brought against someone who has died?

If a person against whom a personal action (an action in which a judgment for money is sought for damages to person or property) may be brought dies before the commencement of such action and before the expiration of the limitation period for the commencement thereof,

then a claim may be filed against the decedent’s estate or an action commenced against the decedent’s personal representative before the expiration of the applicable statute of limitations period or within one year after the qualification of the personal representative, whichever occurs later. Va. Code § 8.01-229-B-2.

 

I trust these Questions and Answers have helped clarify your understanding of probate. Due to the rapidly changing nature of the law, information contained in these Questions and Answers can become outdated. These Questions and Answers are intended solely for educational and informational purposes. The information contained herein is general in nature and should not be a substitute for seeking the advice of an attorney. Please remember that individual circumstances may affect the manner in which the law applies to each situation.

These Questions and Answers are not provided for use or reliance by you or any third parties and do not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. They are meant merely to assist you in sharpening the questions you might ask of your legal advisor in your particular case.

Please give me a call should you have any questions.

Tom Leggette