Estate Administration

Before dealing with the legal system take care of yourself and your loved ones. If you are alone calling a close family member or a friend is recommended during the initial shock.  Once it has subsided you may start calling other friends and family as well as advisors and religious leaders.

Determine if your loved one had any minors or dependents in his care. Hopefully the will is nearby and names a legal guardian or godparent. Otherwise the executor and next of kin should make a temporary decision.

Contact family and close business associates regarding closely held businesses to ensure their temporary sustainability until a succession plan is found.

If you have an interest as a beneficiary or have a role to play as a fiduciary a qualified estate attorney will guide you through this stressful process to make it easier on everyone. You may want to do this even before a will is located.

A funeral home can help the burial designee make the necessary arrangements. Many of which may be listed in a thorough estate plan.

Your attorney can easily guide you through the processes of making claims to Social Security, Veteran's Administration, Employers, and other Insurance and Benefit Providers.

If you are a responsible party for the deceased property you should make efforts to secure any assets and real property you are responsible for. Your should notify the executor and deliver any Wills to the Executor or otherwise the Circuit Court Clerk.

This meeting should provide you a plan forward to make this process much easier and less time consuming. A qualified estate attorney will advise you on the timeline of estate administration and how to obtain certain assets faster. They can explain to you how to provide proper oversight of an executor and help contest or challenge a fraudulent will. Most importantly they will advise you on whether to make certain elections by the 6 month deadline that could save you thousands.

If you are a beneficiary or dependent you may

Depending on the size of an estate, the number of debtors, and composition of a family several elections must be made these include:

1. The Family Allowance
2. The Exempt Property Allowance
3. The Spousal Share 
4. The Homestead Allowance

There is a 6 month deadline to appeal the admission of a will to probate..

Generally it is good practice to allow the executor some additional time except in cases of specific tangible property and other specific legacies.

If a will was made fraudulently there is a 1 year statute of limitations from qualification to contest it.

If an executor or personal representative are breaching fiduciary duties such as:

1. Commingling assets
2. Committing waste due to negligence
3. Committing Self-Dealing

then you may petition the court to have them replaced and request damages from the representative and his surety.

If you are a responsible party for the deceased property you should make efforts to secure any assets and real property you are responsible for and deliver any Wills to the Executor or otherwise the Circuit Court Clerk if they are in your possession. Securing property may also including taking debit cards away from signatories or accessing a computer or cell phone. An attorney can provide proper guidance.

If you are named as an executor, the deceased should have left you copies of their will and hopefully a list of assets, advisors and other persons to contact. If not, you should attempt to contact anyone you know that may have access to such documents.

This meeting should provide you a plan forward to make this process much easier and less time consuming. A qualified estate attorney will advise you on the timeline and requirements of an executor. The attorney can advise you how to find and secure assets, determine which assets are probatable, how to minimize taxes and other expenses.

Estate attorneys can advise on how to handle any conflicts of interest with siblings or others. They can explain any compensation and fees, and  provide assistance to make a complicated process easy. 

Please provide the attorney with the supporting documentation he requests so that  the estate may be handled with due care.

Your attorney and the Clerk of the Circuit Court will need the following:

1. Will and any codicils
2. Death Certificate
3. List of probatable Assets, Accounts, and Property
4. List of heirs under law such as children or siblings
5. List of heirs in the will.
6. Executor Personal Information

A named executor, other petitioner or an estate attorney will need to contact the Clerk of the Circuit Court for the jurisdiction where the deceased last resided and schedule a meeting to qualify the executor or personal representative and make it official with the Court. 

If there is a will naming an executor you will need to file a petition with the court to be qualified as the official executor. If there is no will you will need to file a petition to be named personal representative of the estate of the deceased.

You will need to provide a list of heirs at law such as spouse and children, or if none, other descendants, siblings or parents.

You will also need to provide a list of heirs specifically named in the will.

This is a relatively simple sheet to gather information about the deceased and the person applying as executor of personal representative.

This return establishes the probatable assets of the estate and the tax that is due. It is wise to speak with your attorney about how this is calculated before submission.

The estate will likely need to be secured by a surety or bond.

Once you qualify as executor or personal representative the clerk will provide you official Qualification Letters to provide to banks and other institutions. Now the real work begins!

    The first duty of a representative is to Identify and secure the estate assets. The representative should attempt to put together an inventory of all assets and their values as of the date of death. Hopefully they have been presented an estate portfolio with instructions and a location list. A representative should also sort through hard and digital files to look for rouge accounts. Phones and Computers should be accessed as soon as possible. If this was a wrongful death from a personal injury or medical malpractice the executor also has a duty to protect those claims.

Valuables such as securities, jewelry, firearms and other personal items of substantial value should be kept in a safe place such as a safe deposit box, to which only representatives have access. A will or sometimes a separate attached list may include specific bequests to beneficiaries of this in-kind property. These distributions may be made once the estate is sure they can be paid along with debts and required distributions or an exempt property exemption is elected by a spouse or child.

A claim may need to be filed in order for the representative to obtain certain properties to which the decedent’s estate is entitled, such as life insurance proceeds, employer pension and insurance benefits, Social Security benefits and Veterans’ Administration benefits.

A separate bank account in the name of the estate is not just good practice in avoiding commingling but additionally makes accounting easier. Additionally, a new email just for the estate can help keep those important communications in one place.

If it has not been waived by the will any assets that the executor manages will need to meet the requirements of the Virginia Prudent Investor Act. Cash not needed for expenses will need to be invested in interest bearing accounts.

Unless authority is expressly granted in a will, a personal representative has no authority to sell real estate on behalf of an estate. If selling real estate is necessary to pay debts or make distributions a court order will be required.

Homeowners and other property insurances should be paid and maintained to protect an estates property.

If a closely held business is passing through probate, purchase, employment and operating agreements should be reviewed to ensure operations can continue to protect the business's value.

A qualified attorney will be able to save you thousands settling debts with credit card companies and healthcare providers.

According to Va. Code § 64.2-528, when the assets of the decedent in his personal representative's possession are not sufficient to satisfy all debts and demands against him, they shall be applied to the payment of such debts and demands in the following order:

1. Costs and expenses of administration;

2. Family Allowance

3. Funeral expenses not to exceed $4,000;

4. Debts and taxes with preference under federal law;

5. Medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him not to exceed $2,150 for each hospital and nursing home and $425 for each person furnishing services or goods;

6. Debts and taxes due the Commonwealth;

7. Debts due as trustee for persons under disabilities; as receiver or commissioner under decree of court of the Commonwealth; as personal representative, guardian, conservator, or committee when the qualification was in the Commonwealth; and for moneys collected by anyone to the credit of another and not paid over, regardless of whether or not a bond has been executed for the faithful performance of the duties of the party so collecting such funds;

8. Debts for child support arrearages;

9. Debts and taxes due localities and municipal corporations of the Commonwealth; and

10. All other claims.

No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over a claim not due.

This requires contested creditors to come forward with proof of their debts and demands.

The court will order that the representative may distribute the remaining estate property in accordance with the will and be free from any personal liability to the creditors

You must send all heirs at law or in the will official written notice that you have qualified as executor or personal representative within 30 days.

This confirms to the Court that you sent notices as required.

An inventory is a legal document indicating the fair market value of various probatable assets at the time of death including personal property, real property and bank accounts

This is a relatively simple sheet that avoids an official accounting if the executor and beneficiary are the same person.

Income and estate taxes must be filed within 9 months of death, not qualification. Please speak with a qualified attorney and accountant.

Accountings are financial reports showing the increase and decrease in the value of assets, as well as credits and debits until the balance is 0. This must be done every 12 months after the initial reporting until a final accounting is done.