Personal Representatives in Virginia Probate Cases
When somebody qualifies as an executor or personal representative of an estate, their general duties include marshaling the assets, paying any legally enforceable debts, filing income tax returns, and distributing the remaining assets of a loved one who has passed away according to the laws of the Commonwealth of Virginia or pursuant to their last will and testament.
The personal representative must also provide notice to certain individuals who are entitled to such notice. Virginia law details what information any required notice must contain and the manner in which such notice must be reported to the court. In certain cases, an inventory and accounting of all assets is also required. In Virginia, an order of priority is typically used when an individual dies without a last will and testament. This order of priority details who may be qualified to serve as a personal representative. It can be a complicated process appointing a personal representative in Virginia probate cases, and an experienced probate attorney will be essential help in the process.
Qualifying as a Personal Representative
To qualify as personal representative, executor, or administrator in the Commonwealth of Virginia, someone 18 years of age or older and able to be bonded, if bonding is required, may serve as a special administrator. A qualified individual may be a resident or non-resident of Virginia. However, if they are a non-resident, they will be required to bring a resident of Virginia with them to co-qualify. They must also establish to the clerk of the court that they are capable of fulfilling the duties of a personal representative.
In some circumstances, institutions such as banks or trust companies also serve in as personal representatives in the Commonwealth of Virginia.
Considerations and Requirements Before Petitioning to be Appointed
Before petitioning to be appointed representative, an individual should consider whether or not they will qualify for such an appointment. They should also carefully consider the duties of a representative and whether or not they are willing and able to perform them. Being a representative is a considerable responsibility, and any individual considering appointment as a representative should first fully consider all duties that such an appointment entails.
In Virginia, an individual must go in person to the clerk of the court to qualify as a personal representative. The basic duties of an executor or an administrator are first to marshal all of the assets of the decedent to pay any legally enforceable debts and then to distribute the property pursuant to the will or to laws of Virginia. There are other requirements for some estate administrations that require a fiduciary or a complete inventory to be filed with the commissioner of accounts. There may also be a requirement for full accounting to be filed.
Generally, the fiduciary obligations of a special administrator include marshaling all assets, paying any legally enforceable debts, filing applicable tax returns, and distributing remaining assets, pursuant to either the terms of the last will and testament or to the Virginia law.
If an individual fails to meet the standard or fails to comply, it is possible that they will be removed by the court, after which other ramifications may follow, depending on the nature of the breach of fiduciary obligation.
Unable to Fulfill Responsibilities
In general, moving to another state will not prevent the personal representative from continuing to act on behalf of the estate. However, it is possible that they may need to appoint a resident agent Virginia to accept service on their behalf.
If the personal representative chooses to resign or is unable to fulfill their duties during the administration, then the court will or can appoint somebody else to continue to serve on behalf of the estate. If the main personal representative wants to be removed after their appointment, they will be required to petition the court for removal and another individual will have to qualify to take their place.
Filing Tax Returns
Generally, when someone passes away, there are several tax systems that may be applicable for the estate, such as the estate tax.
Currently, Virginia does not have a free standing estate tax for a decedent. However, there may be an applicable federal estate tax return due if an individual’s assets rise to the level of the filing threshold. There may also be final personal income tax returns due and fiduciary income tax returns due for the Commonwealth of Virginia.
Working with a Probate Attorney
An attorney can help a personal representative by assisting them during the initial meeting at which they are appointed. Moreover, an attorney can act as an integral resource during the process of marshaling the assets of the estate and preparing the required inventory, accountings, and tax returns. A personal representative’s duties can be broad and complex. An experienced lawyer not only has full knowledge of these duties, but considerable experience in carrying them through to fulfillment.