My last post was the start of a series of posts on the basics of administering a Virginia estate in probate. This is part II. I will be focusing on the personal representative including a definition, requirements needed to qualify to become a personal representative and the process to become a personal representative.
When someone dies leaving property, a personal representative is required to administer the decedent’s estate, which involves resolving any debts and handling the distribution of property. In short, the personal representative works to wind up the decedent’s affairs. A personal representative is also a fiduciary to the estate meaning they are in a position of trust in representing the estate. A personal representative must provide a surety bond unless posting a bond was waived by the decedent in the will.
A personal representative can be appointed by court, nominated by will, or selected by the person involved. A personal representative that is nominated by a will was called an executor/executrix or one that was appointed by the court was called an administrator/administratrix. However, over the years, the term personal representative has supplanted both terms and will be used going forward.
The first issue for a personal representative is to actually become the personal representative. That means the person needs to qualify by going to the probate department of the Clerk of the Circuit Court (usually in the county where the decedent owned a home or resided at death), meet the requirements of qualifications under the law, provide the required information about themselves, and pay the required fees.
It is a low barrier to qualify as personal representative. A personal representative must be over 18 years of age and must be able to obtain surety on their bond. A non-resident can be a personal representative but a surety is required unless a resident co-personal representative is appointed. The one caveat is that Clerk can deny appointment of the personal representative because they feel the personal representative is not suitable and competent to perform the duties of being a personal representative.
Generally, if a decedent has a will, the person nominated in the will would be considered qualified, barring one of the above issues. If the person named in the will fails to qualify or decides to turn down the appointment of personal representative, the Clerk can appoint someone else to be the personal representative. However, a spouse or parent who is barred from an interest in the estate because of desertion or abandonment under the law will not be appointed if a beneficiary of the estate objects.
If the decedent died without a will, otherwise known as dying intestate, or a nominated person turns it down the nomination, the Virginia Code provides some guidelines to who can become a personal representative. Persons entitled to be appointed personal representative are in a particular order based on their relationship to the decedent and calculated from a certain time frame after the death of a decedent.
Within the first 30 days after the death of the decedent, the preferred appointment to the position of personal representative has the following priority:
- surviving spouse who is the sole distributee,
- surviving spouse who has written consent of the decedent’s competent children and descendants of any deceased children,
- any distributee that is a sole beneficiary, and
- any distributee who secures the written consent from all other competent distributees.
If no one has been appointed personal representative within 30 days after the death of the decedent, the Clerk can appoint any distributee as it sees fit.
If no one has been appointed personal representative within 60 days after the death of the decedent, a creditor to the estate or any other person can be appointed by the Clerk, as long as certain steps have been taken to find any preferred parties has been made.
At the time of qualification, the Clerk will seek certain information regarding the estate. The information includes:
- general information about the person seeking appoint, like name, address, etc.,
- general information about the decedent,
- an estimate of the value of the assets of the decedent’s estate,
- the decedent’s heir at law, and
- proof of death of the decedent in the form of a death certificate or obituary if no death certificate has not been received
Since the personal representative is a fiduciary to the estate, the personal representative will have to give an oath that they will faithfully uphold the duties of their position to the best of their judgment, and if a will is probated, that the writing is the true last will of the decedent. If a bond has not been waived the personal representative will need to post a surety in the amount of the value of the estate and/or the value of any real estate owned by the decedent. A surety bond is necessary, in case, the personal representative distributes an asset to the wrong person and the right beneficiary makes a claim against the estate that needs to be satisfied.
Lastly, the personal representative needs to pay the necessary fees to open the probate. Those fees include recording costs, Clerk’s fees and the probate tax. The probate tax is assessed on all probate assets (click here for Estate Planning/Probate 101) on estates over $15,000. The probate tax rate is ten cents per $100 on estates valued at more than $15,000, including the first $15,000 of assets. For example, an estate valued at $100,000 would pay $100 in probate tax. Localities may also impose a local probate tax equal to 1/3 of the state probate tax.
Being appointed personal representative is a serious issue and with it comes a number of powers. Next post, I’ll detail those powers.