In Virginia, when someone passes away their affairs must be settled. Their debt must be paid, and their property must be transferred to others. Estate administration is the legal process of settling the affairs of a decedent. In Virginia the Circuit Court has jurisdiction over estate matters. VA Code § 64.2-443A. An estate must go through an administration process regardless of whether the decedent left a will. The process generally takes about 6-12 months. To initiate a probate case, a petition must be filed with the Clerk of the Circuit Court in the county in which the decedent had a residence at the time of their death. Note that if the decedent was a resident of a nursing home or other facility at the time of their death, their county of residence would be based on where they lived prior to moving to the facility. VA Code § 64.2-443B
Responsibilities of a Virginia Personal Representative
The job of the personal representative is to make sure all steps are completed that are necessary to take care of the decedent’s unfinished business so that their estate can be closed. VA Code § 64.2-514. In order to get the “job” of personal representative, an application must be submitted to the Circuit Court and the court must approve it. Upon approval, the court will issue a “certificate of qualification”. From there, the court proceeds in a supervisory role. While it is not necessary for the personal representative to go court every day, they must report their activities, get permission from the court to do certain things, and follow the orders for the court. Failure to do can result in removal. The following are the primary, tasks that the personal representative must complete:
Inventorying and appraising probate assets. One of the first jobs of the personal representative is to take control of estate assets and have them appraised. Within 4 months of their appointment the personal representative must file with the Commissioner of Accounts an inventory of estate assets that are under their control. VA Code § 64.2-1300.
Pay estate debt and expenses. One of the primary purposes of estate administration is to ensure that the debts of the decedent are paid. Before the personal representative can pay a debt, the creditor must file a claim against the estate. The personal representative is required to pay claims that it determines to be valid to the extent there are assets in the estate. If there are not sufficient assets, under VA Code § 64.2-528 the personal representative must prioritize the payment of debt and expenses as follows:
- Costs and expenses of administration
- Certain family and homestead allowances
- Funeral expenses
- Federal debts and taxes
- Medical and hospital expenses of the decedent’s last illness
- Debts and taxes owed to the Commonwealth of Virginia
- Debts due where the decedent was acting in a fiduciary capacity for another
- Debts and taxes owed to localities and municipal corporations in the Commonwealth of Virginia
- All other claims
Distribution of property. While beneficiaries and heirs may be anxious for asset distribution, several months may pass before that is possible. In fact, under Virginia law, assets cannot be distributed until at least 6 months have passed after the appointment of the personal representative. VA Code § 64.2-554. In addition, assets cannot be distributed until claims, expenses, and taxes have been settled.
The manner of asset distribution is typically straightforward as the decedent’s last will and testament will provide how the property is to be divided. The decedent would have stated who gets their money, real estate, jewelry, vehicles, and all other property in their estate. If they did not leave a will, then Virginia law provides who gets what. For example, if the decedent left a surviving spouse and children, they would be entitled to inherit the entire estate. VA Code § 64.2-200.
Probate Disputes in Virginia
Disputes sometimes develop during the process. Typically, the Commissioner of Accounts works with the parties to settle them. However, sometimes that is not possible, and the parties must go before the Circuit Court judge for a resolution.
Common types of probate disputes include:
- Will contests
- Disputes with fiduciaries
- Guardianship disagreements
- Objections to the final accounting
- Will construction
Regardless of the reason for a probate dispute, it can have a significant impact on the administration process including extending its timeframe for the process.