Probate and Qualification
PROBATE AND QUALIFICATION
THE CLERK OF THE HENRICO CIRCUIT COURT HAS JURISDICTION REGARDING PROBATE OF WILLS AND QUALIFICATION OF PERSONAL REPRESENTATIVES.
THE COMMISSIONER OF ACCOUNTS HAS NO JURIDICTION IN THIS AREA AND CANNOT ANSWER INDIVIDUAL QUESTIONS REGARDING PROBATE AND/OR QUALIFICATION. AN ESTATE ATTORNEY IS BEST CONSULTED IF YOU HAVE LEGAL QUESTONS.
THE CLERK’S OFFICE SHOULD BE CONTACTED TO SCHEDULE AN APPOINTMENT IF YOU DECIDE TO PROBATE A WILL AND QUALIFY AS EXECUTOR OR ADMINISTRATOR.
In order to commence the formal administration of a decedent’s estate there must be a probate of the decedent’s last will and testament and a qualification as Executor of that will, or qualification of an Administrator of an intestate decedent’s estate.
A testate estate is one in which the decedent had a valid will which is admitted to probate by the Clerk of Court, or in rare instances, by order of the Court.
An intestate estate is one in which the decedent died without a will.
What is Probate?
Probate is the offering at the Henrico Circuit Court Clerk’s office of a document, or multiple documents, as the decedent’s true last will and testament. The original will and any codicils thereto, are presented to the Clerk of Court, who determines that all statutory requirements for the probate of the documents have been established, at which time they are accepted for probate and placed on the public records maintained in the record room of the Circuit Court Clerk’s office.
What is Qualification?
Qualification is a request to the Clerk of Court, usually made at the time of probate, for appointment of a person to administer the decedent’s estate. This is either an Executor, if the decedent had a will, or an Administrator, if the decedent died without a will. Death with a will is referred to as dying testate, and dying without a will is referred to as dying intestate.
If the will establishes a trust for the benefit of a beneficiary (a testamentary trust), qualification of the trustee named in the will at the time of qualification of the executor will save a return trip to the clerk’s office when distribution is to be made to the trust. Distribution to a testamentary trustee cannot be made before she/he has qualified and posted bond before the Clerk of Court.
Where do Probate and Qualification Occur?
In the office of the Clerk of the Henrico County Circuit Court, Hungary Spring and Parham Road, Henrico County, Virginia.
How to Schedule Probate and Qualification.
Call the deputy clerk of the Circuit Court, probate section, (804) 501-4316; (804) 501-4546; or (804) 501-5327 to schedule an appointment and to obtain additional information regarding the (i) forms to be filed; (ii) fees to be paid and (iii) documents required to be presented at the time of probate.
Is Probate of a Will Required?
Generally yes. It is a felony criminal offense to fraudulently conceal or destroy a will or codicil with the intent to prevent probate. Section 18.2-504, Code of Virginia (1950), as amended.
However, if all assets of the decedent were titled with another person with the right of survivorship, or were payable on death according to the terms of the instrument to a named beneficiary (i.e. life insurance), qualification may not be necessary.
Even if no qualification is necessary, it is a good practice to probate the decedent’s will. The probate notifies a title examiner that title to real estate has passed due to the death of a co-owner when the property was jointly titled, with survivorship.
Is Qualification Required?
Generally, yes, however, in many cases qualification may not be required. If assets were held in the decedent’s name only, qualification is almost always required in order for someone to be authorized by the Court to act as executor or administrator of the estate and to have the authority to demand delivery of the decedent’s assets from the person or company holding the decedent’s assets.
Without a POD, TOD or Beneficiary designation, banks, brokerage firms, life insurance companies and others will not pay the decedent’s assets to anyone other than a properly qualified executor or administrator with “letters testamentary”. (This is a term referring to the qualification certificate received from the Clerk of Court at the time of qualification).
Note: Virginia does not issue “letters testamentary”. A qualification certificate stamped with the seal of the Court is issued showing that an executor or administrator has been qualified, posted bond and has authority to act on behalf of the estate.
QUALIFICATION FOR SMALL ESTATE
Section 64.2-1411, Code of Virginia, allows for a qualification, without the requirement of surety, where the total assets coming into the possession of the personal representative will be $25,000 or less. If such qualification is permitted by the Clerk of the Henrico Probate Section, a qualification certificate will be issued, which on its face states that any person may deliver to the fiduciary an asset having a value of no more than $25,000, that the certiciate may be used only once, and that it is effective only upon presentation of the original certificate issued by the Clerk with the Clerk’s seal.
This type of qualification is done before the probate clerk of the Henrico Circuit Court. It is
designed to obtain and administer assets totaling no more than $25,000, and is not a
substitute for qualification on an estate in excess of $25,000.
A representative qualifying under a Small Estate Qualification does not report to the Commissioner of Accounts, but such person is still charged with the proper administration of the assets received.
The Commissioner does not advise on this type of qualification, so you must review the statute or
discuss this procedure with legal counsel, as the Commissioner’s office will not provide any more
information than is provided by this text.
Do not call the Commissioner’s office for advice on qualification.
VIRGINIA SMALL ESTATE ACT
The above referenced Qualification for a Small Estate should not be confused with the Virginia Small Estate Act, which provides a procedure to claim, without qualification, small assets of a decedent.
If the decedent’s total estate, exclusive of real estate, wherever located, does not exceed $50,000.00, you may be able to obtain total amounts not exceeding $50,000.00, in bank accounts, credit unions and other institutions, by use of the VIRGINA SMALL ESTATE ACT, Section 64.2-600 and following sections, Code of Virginia. A proper affidavit may have to be presented to be effective. The affidavit must include all of the information included in the statute, so an estate attorney should be consulted for the requirements to be satisfied to obtain small assets through this procedure.
The Commissioner of Accounts’ Office has no jurisdiction in regard to the use of the Small Estate Act in lieu of qualification, and will not give advice on the use of this procedure or compliance with the Virginia Code. We will not prepare or provide a Small Estate Affidavit. If you believe this section may apply to the estate with which you are involved, it is suggested that you consult with an estate attorney.
What are Bond and Surety and Are They Required?
Bond is a promise in writing given by the person being appointed (executor or administrator) in an amount set by the Clerk of the Circuit Court, for the faithful performance of the duties regarding the estate. If the person administering the estate fails to properly perform his duties, he can be required to pay to the estate the sums lost to, or taken from, the estate. Bond is required on all qualifications and cannot be waived by the will.
NOTE: Once you qualify and bond is set based on the value of the estate’s assets you declare to the Clerk of Court, your bond will not be reduced or raised until after your inventory has been filed, reviewed and approved by the Commissioner’s office. For example, if you declare $50,000 in estate assets when qualifying before the Clerk, bond will be set based on your declaration. If the next day you find out that the $50,000 was in a survivorship account and that no qualification was required, you may not return to the Clerk’s Office and “unqualify” or obtain a bond reduction. You will have to file an inventory with the Commissioner of Accounts with proof that the account was a survivorship account. The Commissioner will review the bond and surety, if any, and the need for a reduction or increase in the bond, and further need to account. (Section 8.01-120 B., Code of Virginia (1950), as amended.
Surety is a person or corporation promising to pay the estate for the failures or defaults of the personal representative who gives the bond at qualification. This is most always an insurance bonding company engaged in the business of acting as surety, for a premium payment payable by the estate. Check with the Clerk of the Circuit Court to see if surety will be required on your bond at the time of qualification. Surety may be waived under the terms of the decedent’s will. If surety is required by the Clerk’s office, the bonding agent will need to be present at the time of qualification. Check the will to see if surety is waived.
What Forms Are Required for Probate and How Do I Get the Forms?
Standard forms approved by the Virginia Supreme Court are required to be completed prior to or at probate and/or qualification and are available on this website as follows:
- Probate Information Form (CC-1650)
- Memorandum of Fact-Probate (CC-1660)
- Probate Tax Return (CC-1651)
- List of Heirs (CC-1611)
- List of Heirs Real Estate Affidavit (CC-1612)
- Notice to Heirs and Beneficiaries (CC-1616)
- Affidavit of Notice to Heirs and Beneficiaries (CC-1617)
- Waiver of Notice of Probate or Qualification (CC-1618)
- Power of Attorney for New or Additional Bond (CC-1619)
Do I Need an Attorney to Assist Me with Probate and/or Qualification as Personal Representative?
No, you are not required to have a lawyer.
HOWEVER, THE SERVICES OF AN EXPERIENCED ESTATE ADMINISTRATION ATTORNEY IS OFTEN RECOMMENDED AND DESIRABLE.
Many legal questions arise in the administration of an estate, large or small, which require the opinions and advice of an estate attorney. The initial evaluation of the need to probate a will and qualify as personal representative often justifies the engagement of an estate attorney to make that determination.
An estate attorney will be experienced in dealing with the Court, Clerk’s office and the Commissioner of Accounts’ office. Procedures can be simplified, errors avoided and difficult legal questions resolved without the complications that may otherwise develop without such assistance.
ESTATE ADMINISTRATION CAN BE VERY COMPLEX. Many rules of interpretation and statutes govern the administration of estates. You are encouraged to seek the guidance of competent legal counsel. You may discuss issues with the office of the Commissioner of Accounts, but this office cannot, and will not, serve as your legal representative. Legal fees for matters outside of the expertise of the executor or administrator are generally payable from the estate, if reasonable. If you have any question about charging the fees to the estate, you should contact the Commissioner’s office before incurring such costs. Such fees must be “reasonable” in the determination of the Commissioner of Accounts in order to be approved as a proper expense of administration of the estate.