Executor’s Guide to Virginia Probate
If you have recently been appointed as an executor of an estate in Virginia or if you are drafting your will now and trying to decide whom to choose to administer your estate, this guide is for you.
What is Probate?
Probate is a procedure by which a decedent’s estate is gathered, assessed, and distributed to any valid creditors left behind and to the beneficiaries of the deceased person’s estate.
Not all assets will be considered a part of the decedent’s estate for the purposes of probate. A properly set up and funded trust will keep named assets out of probate, and they can be distributed immediately and without court approval in accordance with the trust terms and instructions.
Virginia does not have a separate probate court, as some states do. Instead, all probate matters are processed through the circuit court of the city or county where the decedent was domiciled. The average probate administration can take between six and eighteen months, depending on the complexity of the estate. In circumstances when the decedent died owning no real estate and with personal property valued less than $50,000, probate may not be necessary.
What is an Executor?
In the Commonwealth of Virginia, the person responsible for administering an estate is called the “executor.” Although the executor is named in a deceased person’s will, the role is actually conferred by the Circuit Court. The appointed person must take an oath that he or she will perform the duties required of the executor and give bond at least in the amount of the estate’s value. Most Virginia wills waive the requirement that surety bond be paid by the executor. However, if the executor(s) are non-Virginia residents, surety can be required.
The executor is responsible for administering the will on behalf of the decedent in accordance with the terms of the will. Throughout the probate process, the executor is held responsible for protecting the decedent’s assets (including his or her home, savings, personal property, and any other probatable asset). This legal responsibility, or fiduciary duty, requires that the executor must at all times act and make decisions in the best interest of the estate.
Who is Qualified to be an Executor in the Commonwealth of Virginia?
An executor may be an individual (usually a trusted friend or relative), bank, or trust company. To be qualified as an executor, however, this person (or entity) must meet the following requirements:
Over the age of 18
Mentally and physically capable of serving as the executor
What Does an Executor Do Throughout the Probate Process?
Serving as an executor can be a lot of pressure (especially if the will is contentious, assets are difficult to locate, heirs are anxious to receive their inheritances, or there are a lot of creditors seeking to be paid out of the estate), and there is a lot to do. The best way to get through the process is to remain organized and follow each step of the process methodically.
In order to fulfill his or her administrative duties under Virginia law, the executor must:
Obtain the decedent’s Death Certificate. The executor is often responsible for the funeral and/or burial arrangements. The funeral home can issue as many death certificates as are needed.
Find estate planning and other important documents. If the decedent had a will, the executor needs to locate and submit it to the court. There is no set timeframe during which the executor must initiate the probate process. Generally, probate begins between one and four weeks after the decedent’s funeral. To do so, the executor must first make an appointment with the Clerk’s Office of the Circuit Court. The executor may be given forms to complete prior to the appointment. Then, the executor should bring the original will to the Clerk’s Office along with a list of the probate assets, the value of those assets, and a copy of the Death Certificate.
The executor should also attempt to find paperwork related to insurance, investment accounts, funeral plans, bank accounts, real property, valuables (and documents that verify the value of antiques and collectibles), business interests, and any other documents that can help value the estate.
Identify and properly value the decedent’s probate assets. The executor must take inventory of all real property, investments, bank accounts, personal property, and any other probatable assets that comprise the decedent’s estate. Sometimes, the deceased person will leave the executor a list of assets and where to find them. However, it is not always this easy.
The documents listed above, as well as any other information regarding assets, may be found in a file cabinet or safe deposit box. If there is no clear place where documents are held, the executor should check with the attorney who drafted the decedent’s will. He or she may have a record of assets on file. Once a list has been found or created, the executor will need to determine the total value of the estate.
Give notice to all probate heirs, beneficiaries, and relatives within thirty days of qualification as executor.
Determine the liabilities of the estate. The executor is responsible for ensuring that all debts (including taxes) are paid out of the probate assets.
Within four months, the executor should file a complete inventory of the estate with the Commissioner of Accounts. The Commissioner of Accounts is generally an attorney appointed by the circuit court to oversee the probate process.
Defend the estate from improper claims and pay all valid claims. The estate is responsible for paying the valid creditor claims of the deceased person. If the amount of all valid claims exceeds the total value of the estate assets, the heirs are not responsible for covering the balance. However, Virginia law prioritizes the creditors if there are not enough assets to cover all valid creditor claims. Absolutely no distributions should be made to heirs before the Commissioner of Accounts determines that all creditors have been paid.
Hire any professionals needed to properly administer the estate (including attorneys, CPAs, appraisers, and investment advisors).
File any required tax returns and pay any outstanding taxes due.
Pay the expenses associated with administering the estate.
Distribute all remaining assets in accordance with the will.
Settle the probate estate with the court.
This is not an exhaustive list of the duties that fall to Virginia executors; however, it does provide an overview of the kinds of responsibilities required.
When Does the Probate Process End?
After all valid claims have been paid and the remaining assets have been distributed in accordance with the will, the executor may finalize the legal closing of the estate. To do so, he or she may file a final Order of Distribution.
Can an Executor be Compensated for His or Her Work?
In the Commonwealth of Virginia, the executor is entitled to compensation from the estate for his or her services. Generally, compensation is permitted up to five percent of the total value of the estate. The executor is also entitled to reimbursement for reasonable expenses such as the cost of death certificates, travel costs, engaging professional services, etc. All compensation paid to the executor must be approved by the Commissioner of Accounts.
Can an Executor Hire Professionals to Help?
It is highly recommended that executors do not attempt to navigate this process alone. A team of professionals with the proper experience can make the probate process a much smoother and more manageable one and can help avoid costly mistakes.
An experienced probate attorney can ease the process and guide the executor through each step. He or she can also serve a valuable communications role when dealing with family members and beneficiaries.
A tax professional will likely be necessary to file any final tax returns and assess tax liabilities that may arise from the inherited assets.
Appraisers will also likely be necessary to determine the fair market value on real estate, antiques, collectibles, and any other assets of undetermined value.
Ask a Virginia Estate Planning Attorney for Assistance
If you have been named as an executor under a Virginia will or if you are deciding who to choose as the executor for your own will, feel free to reach out to us at Wakefield Law. Even in the simplest of probate estate matters, many legal issues can arise. To learn more about administering a probate estate in Virginia, give us a call at our Leesburg office, at (703) 771-9740!