Probate and Estate Administration Flashcards
Probate
“Probate” refers to the proceeding in which a testamentary instrument is judicially established as the duly executed last will of the decedent or, if there is no will, the proceeding in which the decedent’s heirs are judicially determined.
Jurisdiction
Circuit courts have jurisdiction over all probate matters
Missing Persons - When Death is Presumed
A person is presumed dead if they have been absent from Virginia and have not been heard from for at least 7 Years
Time Limit for Probate
There is no time limitation for offering a will for probate. However, if the will is not offered for probate within one year after the testator’s death, a bona fide purchaser of real property from an heir or a devisee under a prior will is protected.
Executor
Personal representative named in a will
Administrator
A personal representative appointed by the court is an administrator.
Persons Entitled to Appointment as Administrator
After an intestate decedent’s death, the following have priority for appointment as administrator during the first 30 days:
(1) a sole distributed or their designee, or
(2) any distributed, or their designs, who presents written waivers of the right to qualify from all other competent distributees.
Nonresident Personal Representative
A nonresident individual may serve as a personal representative of a decedent’s estate but must appoint a resident agent for service of process. or agree to allow the clerk to be served on their behalf.
A corporation not authorized to do business in Virginia cannot serve as a personal representative.
Duties and Powers of Personal Representative
The personal representative is charged with the duty of marshaling the decedent’s assets, giving notice to creditors and paying valid claims, filing the decedent’s tax forms, winding up the decedent’s affairs, and distributing the remaining assets according to the decedent’s will or the intestacy statutes.
Creditor’s Claims
If the assets in the estate are not sufficient to pay all debts and claims against the estate, creditor’s claims are paid in the following order:
1) Expenses of administration
2) Family allowance, exempt property, homestead allowance
3) Funeral expenses up to $4,000
4) Debts and taxes with preference under federal law
5) Medical expenses of the last illness up to a certain dollar amount
6) Debts and taxes due in Virginia
7) Debts incurred in a fiduciary capacity
8) Debts for child support arrearages
9) Debts and taxes due for localities and municipal corporations of Virginia, and
10) All other claims
Abatement
If assets owned at death are not sufficient to pay all of testator’s debts and also satisfy all of the gifts made in the testator’ will, absent a contrary will provision, the source of payment of claims is as follows:
1) Personal property passing by intestacy
2) Personal property in the residuary estate
3) general legacies, which abate pro rata
4) Specific and demonstrative bequests of personal property, and
5) If the personal property is exhausted, the real property abates in the same order
Apportionment of Estate Taxes
Unless the will contains a contrary provision, each person interested in the estate is charged with a pro rata portion of the estate taxes.
What is a Small Estate
Under Virginia law, a small estate is valued at $50,000 or less and includes only personal property.
A small estate cannot include real property or non probate property.
Procedure for Small Estates
An informal affidavit procedure is used instead of formal estate administration. If 60 days have elapsed since the decedent’s death and no one has applied to be or has been appointed the personal representative, personal property must be delivered to the decedent’s successor upon being presented with the affidavit.
