In Virginia, the person assigned to serve as executor has the great responsibility of performing the activities required to close the estate of a decedent. Another term for “executor” is “personal representative.” If the decedent did not name an executor in their will or did not leave a will at all, the executor is referred to as the estate administrator. The personal representative is a considered a fiduciary. Their actions are supervised by the Circuit Court as in Virginia the Circuit Court has jurisdiction over probate matters. VA Code § 64.2-443A. The Clerk of the Court and the Commissioner of Accounts work closely with the personal representative throughout the estate administration process. The process must be initiated with the Clerk of the Court in the county in which the decedent had a house or residence.
Personal Representative Qualification
If the decedent left a will, the will indicates who will service as personal representative. However, that person must still seek qualification from the Clerk of the Court. VA Code § 64.2-506. Qualification involves the Clerk of the Court swearing in the personal representative and issuing them a document called a “certificate of qualification,” sometimes referred to as “letters testamentary.” The document serves as evidence that the personal representative has the legal authority and responsibility to go about the business of settling the decedent’s estate.
In order to qualify as the personal representative, the person must be at least 18 years old. A bond may be required to protect the estate from any loss that results from improper actions on the part of the person in their role as executor.
Duties and Responsibilities of the Personal Representative
Once qualified, the personal representative’s duty is to wrap up the estate of the decedent. Within 30 days of qualification, the personal representative must provide written notice of probate and qualification to beneficiaries and heirs. VA Code § 64.2-508. Then they must take control of the assets, pay debts and expenses, and distribute assets.
Take control of assets. One of the first tasks of the personal representative is to identify estate assets. Their appointment by the court gives them authority to take over management of them. They must also appraise the assets in the estate to determine their value as of the date of death. Within 4 months of qualification, the personal representative must file with the Commissioner of Accounts an inventory listing all the assets.
Pay estate debts and expenses. Another important job of the personal representative is to pay estate debts. If the estate does not have sufficient assets to pay all debt, debt and expenses are paid in the following order of priority:
- Costs of administration
- Certain family and homestead allowances
- Funeral expenses
- Debts and taxes given priority under federal law;
- 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 Virginia
- All other claims
The personal representative is not personally liable for paying estate debt. However, if they fail to pay debt as required by the order for priority of if they acted in bad faith, they may be personally liable.
Distribute estate assets. The final major responsibility of the personal representative is asset distribution. The personal representative must wait for at least 6 months after qualification to distribute assets. In addition, they must also have filed an accounting with the Commission of Accounts and the Commissioner of Accounts must have filed a report of the debts.
The, the personal representative must file a motion with the court, asking it to issue a show cause order. A show cause order is an order requiring all creditors or those having claims against the estate to show why asset distribution should not be made. Once the court issues the order, the personal representative can distribute assets.
Personal Representative Compensation
Personal representatives are not expected to work for free. They are entitled to reasonable compensation unless the will provides otherwise. The personal representative is also entitled to reimbursement for reasonable expenses that they incurred related to the administration of the estate. VA Code § 64.2-1208.