The last two posts on this series dealt with defining probate administration and the process to qualify in Virginia. Part III will deal with the duties and liabilities of the personal representative. As I mentioned in prior posts, being appointed personal representative is an important position with a significant undertaking. Winding up an estate is time consuming exercise that could take as little as 6 – 9 months or it could take years depending on the issues confronting the estate.
The powers and duties of the personal representative are set out by the will. If there is no will, the personal representative’s powers and duties are controlled by applicable probate code. If there is a will, the personal representative must carry out the wishes of the testator i.e. Granddaughter X should get Grandmother’s pearls, etc. If there is no will, the decedent’s property will be distributed by intestate law which, generally, is governed by the familial and spousal relationship to the decedent
The personal representative has the duties and obligations of a fiduciary to the estate. This means the personal representative needs to act in good faith in administering the estate. If the personal representative discharges their duties in a way that would be deemed not in good faith, including participating in transactions that are deemed self-dealing or acting with negligence in administering the estate, the personal representative could be personal liable for any damages incurred from those actions.
The personal representative’s main duty is the marshaling of assets of the estate by trying to locate, identify and take control of all the decedent’s probate assets. The personal representative shall also protect and prudently invest those assets during administration. With assets identified, the personal representative must pay enforceable debts and obligations of the decedent out of the identified probate property. Debts and obligations would include claims from creditors and taxes owed by the decedent. Finally, the personal representative must distribute the remaining assets to the proper heirs and beneficiaries of the decedent as indicated in the will or under intestate succession. All of this must be inventoried and properly accounted for and presented to the court to ensure the personal representative acted accordingly.
The personal representative will be vested with ownership of the decedent’s personal property during probate administration. The big asset that most personal representatives deal with and is treated differently is real property, usually a home residence. If the decedent died with a will, the personal representative is granted certain powers under Virginia Code Section 64.1-57 that permits the personal representative to sell realty. If decedent died intestate, the personal representative will only have control of the personal property and needs to obtain the court’s permission to sell any real property.
Under Virginia law, the personal representative must invest prudential. That means the personal representative must invest income producing assets within four months of qualification.
Next time, I will start getting into the specific process of probate administration.