A Guideto the Administrationof Decedents’ Estatesin Virginia

A cooperative projectof The Wills, Trusts and Estates Sectionof The Virginia Bar Associationand the Wills, Trusts and Estates Legislative Committeeof The Virginia Bar Association

This manual was prepared as a cooperative project of the Wills, Trusts and Estates Section and theWills, Trusts and Estates Legislative Committee of The Virginia Bar Association as a public service.The subcommittee in charge of the project recognizes and appreciates the assistance of pastchairpersons of the Wills, Trusts and Estates Section of The Virginia Bar Association and its LegislativeCommittee; and the many other members, past and present, of the Legislative Committee whoproofed, read and commented on the text.

The first (1996) and second (1998) printings of this publication were financially assisted by the VirginiaLaw Foundation.

The Subcommittee,

Nan L. Coleman, ChairpersonRoanoke

Robert H. Powell, IIINorfolk

Fielding L. Williams, Jr.Richmond

© 2005 (Revised) The Virginia Bar Association

Acknowledgments

701 East Franklin Street, Suite 1120Richmond, Virginia 23219

(804) 644-0041 • Fax (804) 644-0052 • www.vba.org

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Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2

A Word About Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3

Chapter I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4Funeral and Burial Arrangements; Pre-Qualification Responsibilities of the Executor

Chapter II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6Locating and Reading the Will

Chapter III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7Probate and Qualification

Chapter IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 11Notifying the Beneficiaries

Chapter V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 13Rights of the Surviving Spouse and Children

Chapter VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16Administration of Small Estates

Chapter VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 18Paying Debts and Claims Against the Estate

Chapter VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 19Paying Taxes

Chapter IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 21Responsibilities, Powers and Rights of the Personal Representative

Chapter X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 25Estates of Decedents Who Die Without a Will

Chapter XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 27Special Assets

Chapter XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 30Compensation and Reimbursement of the Personal Representative

Chapter XIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 31Advisors

Chapter XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 32Conflicts of Interest

Chapter XV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 34An Estate Administration Checklist

Table of Contents

This manual is intended to assist persons whoare involved in the administration of a decedent’sestate in Virginia. It is particularly directed tothose persons who desire to know in a generalway what is involved before agreeing to serve asa personal representative of a decedent’s estateand to those persons for whom the time has cometo assume the responsibilities of administeringan estate who need additional information. Thefollowing chapters discuss the various stepsinvolved in probating a will, paying debts andclaims, filing tax returns, and carrying out otherduties and responsibilities of a personalrepresentative of a decedent’s estate.

Certain exceptions to the general rules andprocedures described in this manual have beenomitted, as well as some general rules which mayapply only in certain circumstances. Accordingly,the material will not necessarily be applicable orcomplete with respect to any particular estate,and it is not intended to be a substitute for specificlegal or tax advice applicable to a particularcircumstance. It is designed to assist thelayperson in carrying out some of the routinerequirements of estate administration without thenecessity of consulting an attorney every step ofthe way and to point the way in those areas whereexpert advice should be solicited. We hope it willgive you an idea of duties you may carry out onyour own and help you to be an informed clientfor those duties that you delegate to attorneys orother professionals.

Introduction

The opinions expressed herein are those of theauthors, whose reference point is Virginia lawand practice as of July 1, 2005. Laws are subjectto change and the reader is advised always to seekupdated information on specific issues. There willcertainly be local variations in some of theprocedures described. Your local Clerk’s Officehandling probate should have additionalinformation and instructions available to you atthe time of probate and qualification.

The material is provided with the understandingthat the authors and The Virginia Bar Associationwill not be liable for any direct, indirect, orconsequential damages resulting from the use ofthis material. It is not to be construed as providinglegal, accounting or tax advice to the user.

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Some of the words or phrases used in thefollowing chapters may be unfamiliar to thereader but are frequently used in the context ofestate administration. Many of the words areexplained In the text, but in case the readerreviews only certain chapters or skips about inthe manual, a brief description of some of the keywords used follows:

Administrator: the person appointed by andqualified before the Clerk to administer thedecedent’s estate when the decedent has no willor has a will which does not name an executor ornames an executor who for some reason does notserve.

Beneficiary: a person or organization entitled toreceive a portion of the estate.

Clerk or Clerk’s Office: the Clerk of the CircuitCourt that has jurisdiction to probate the will andappoint the administrator or executor of theestate.

Commissioner of Accounts: the personappointed by the Court to oversee the reports andactivities of personal representatives.

Court: the Circuit Court which has jurisdictionto probate wills and qualify administrators andexecutors.

Creditor: a person or organization owed moneyby the decedent.

Decedent: the deceased person.

Estate: the decedent’s property, including realestate, personal property and any other assetsowned or controlled by the decedent at the timeof his or her death.

Executor: the person named in the decedent’s willto administer the estate who accepts appointmentby qualifying before the Clerk.

A Word About Terminology

Fiduciary: a person in a position of trust withrespect to another’s property; a general term usedto refer to executor, administrator or trustee.

Heirs/Heirs at Law: determined at the time ofthe decedent’s death, the persons who wouldinherit the decedent’s estate if the decedent diedwithout a will.

Intestate: dying without a will.

Intestate succession: the order, as provided byVirginia law, in which family members are in lineto inherit property from a decedent who diedintestate.

Legatee: a person who may inherit propertyunder a will; a more technical name forbeneficiary.

Notice of Probate: the requirement to give noticeof certain information to beneficiaries and heirs.

Personal Representative: a term used to meaneither the executor or the administrator of theestate, as the context requires.

Probate: the procedure whereby a will isadmitted to record in the Clerk’s Office; theprocess of qualifying a person as executor oradministrator of an estate; also sometimes refersto the entire process of administering an estate.

Qualification: the procedure whereby a personis appointed by the Clerk to serve as executor oradministrator of a decedent’s estate.

Testate: dying with a will.

Testator: a person who makes a will.

Will: a written document that directs how, when,and to whom, the Testator wants his or herproperty distributed after death.

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Q: Who is responsible for making the funeralarrangements and how should funeralarrangements be handled?

A: Virginia law provides that a person maydesignate in a writing, signed and notarized andaccepted in writing by the individual sodesignated, an individual to make arrangementsfor his or her burial or the disposition of his orher remains upon death. The individual sodesignated, if any, is responsible for making thearrangements.

If the decedent gives instructions in a will or in aseparate letter to the executor or to a familymember, the body should be buried in accordancewith those instructions to the extent practical andreasonable under the circumstances. The personnamed in a will as executor has the power toprovide for the burial even before qualifying asexecutor to administer the estate.

If no instructions are found regarding thedisposition of the body or if arrangements werenot made in advance, the surviving spouse ornext of kin should make the funeralarrangements. Payment is discussed in the nextquestion.

The person making the arrangements may needto locate the deed or other evidence of ownershipof the family cemetery plot to determine thedecedent’s right to burial there.

CHAPTER I

Funeral and Burial Arrangements;Pre-Qualification Responsibilitiesof the Executor

Q: Who is responsible for the payment of funeraland burial expenses?

A: Often the funeral and burial take place beforeanyone locates and reads the will or qualifies toadminister the estate. If there is a will, it usuallyis not admitted to probate until after the funeral.This means that there may not be access to thedecedent’s money in order to pay for the funeralat the time the arrangements are made.However, the person who is named as executorin a will has the power to provide for the burialof the decedent and to pay reasonable funeralexpenses even before that person has beenformally qualified as executor.

If there is no will and no other means of access tothe decedent’s accounts, a family member usuallyadvances the necessary money and then seeksreimbursement from the person who laterqualifies as administrator and who then isauthorized to use the decedent’s assets to pay thebill or to reimburse the family member whoadvanced the money.

If the decedent has left no funeral or burialinstructions, the person making arrangementswith the funeral home should be careful aboutthe amount of funeral expenses incurred forwhich that person will later seek reimbursementfrom the decedent’s estate. Normally theexpenses should be “reasonable,” which willdepend upon the decedent’s financial andpersonal situation. However, if there is reason tothink that the decedent’s debts are greater thanhis or her assets, then it is possible thatreimbursement of the funeral expenses will be

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limited to $2,000 and no further reimbursementor payment can be made by the personalrepresentative of the estate for funeral expenses.The limitation on the amount of estate assets thatcan be used to cover funeral and burial expensesoccurs when the assets of a decedent’s estate arenot sufficient to satisfy all of the demands andclaims against the estate. In such case, Virginialaw specifies an order of payment of debts. Notfollowing the order of payment set by law cancause the personal representative to be personallyliable to creditors of the decedent.

Q: What should be done to keep safe thedecedent’s assets?

A: Steps to preserve and safe-keep the decedent’sassets should be taken as soon as possible. Evenprior to qualification before the Clerk, theexecutor named in the will has the power topreserve the estate from waste.

If the decedent lived alone, remove perishableproperty, arrange for the care of pets andsafeguard the premises until the remainingproperty can be removed. As soon as possible,make sure that all personal property, especiallyjewelry, antiques, silver and valuable works ofart, is securely and safely stored and adequatelycovered by casualty insurance.

All home deliveries should be terminated if thedecedent’s house is unoccupied. Cancel allnewspaper and magazine subscriptions anddetermine whether a refund is available forunused subscriptions. If necessary, direct the postoffice to withhold delivery of the decedent’s mailuntil the personal representative has beenappointed. Upon appointment, the personalrepresentative can then make an appropriatechange of address with the post office.

Q: Who should be notified of the fact of death?

A: The requirement to notify beneficiaries andheirs at law is discussed in Chapter IV. Inaddition, the Social Security Administration, theDepartment of Veterans’ Affairs (for any deceasedveteran), other similar agencies, and employersthat may have been sending monthly checks tothe decedent should be notified to discontinuethe payments. There may be death benefitspayable by Social Security, the Department ofVeterans Affairs, or the decedent’s last employerthat will be processed only after notice is given.If monthly benefits were being paid via directdeposit, notify the bank of the death so that anyamounts paid in error after the death can bereturned.

Notify insurance companies with which thedecedent maintained life insurance policies sothat the company can contact the designatedbeneficiaries and begin to process the insuranceclaims. Request Form 712 from each insurancecompany.

Consider sending a letter to all creditors notifyingthem of a possible delay in payment of amountsowed the creditors because of the death. Requestverification and evidence of the nature andamount owed.

If the decedent executed a power of attorneyduring lifetime naming an agent to handle his orher financial affairs, notify the agent under thepower of attorney that the power of attorneyterminated as of the decedent’s death.

CHAPTER I: FUNERAL AND BURIAL ARRANGEMENTS;PRE-QUALIFICATION RESPONSIBILITIES OF THE EXECUTOR

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Q: Where is the will likely to be found?

A: Wills are frequently kept in safe deposit boxesat banks, at home in a lock box or similar placewhere valuable papers might be maintained, orat the office of the attorney who prepared the will.Begin the search at the decedent’s home. If thewill is not located there, see if the decedent renteda safe deposit box and check it. If anyone otherthan the decedent was authorized to enter thebox, that person is entitled to open the box afterthe decedent’s death to look for the will. If onlythe decedent (or the agent acting under a powerof attorney whose authority terminated at thedecedent’s death) had access to the box, Virginialaw allows a bank to permit certain other peopleaccess to the box for the sole purpose of locatingthe will.

After the personal representative is appointed,he or she will be allowed into the safe depositbox for the purpose of inventorying, removing,and securing any papers or property in the box.

If the decedent had no safe deposit box, or itslocation is undetermined, check with other familymembers, financial and legal advisors, local bankpersonnel, and friends to determine where a willmight have been kept.

If no will is found but the family believes that thedecedent had a will, a family member or otherperson may have to call or write all local banks,trust companies, and lawyers’ offices to inquirewhether the decedent left a will in theirsafekeeping.

CHAPTER II

Locating and Reading the Will

Q: What happens if the will cannot be found?

A: If the original of the will cannot be found butit is believed that it was signed and never revokedor destroyed by the decedent, there is a procedureunder which a copy of a lost will may be admittedto probate. There is also a procedure for dealingwith a will that is unexpectedly found after theestate has been administered under the incorrectassumption that a will did not exist. Theseprocedures involve filing a petition with theCourt.

Q: If the will is located, does it have to be read tothe family members?

A: There is no requirement in Virginia for a“reading of the will” that is frequently seen inmovies. If a will is located, however, it may behelpful provide a copy to family members orother beneficiaries or to read it to them while theyare available around the time of the funeral. Thisis not required by law and may not be practicalin every situation. This should be considered asa way to reduce curiosity and questions about itscontents and to eliminate suspicions thatsomething is being hidden. The legalrequirements for notifying heirs and beneficiariesnamed in the will are discussed in Chapter IV.

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Q: What is probate?

A: “Probate” refers to the action of submittingthe will to the Clerk of the appropriate CircuitCourt or to the Court itself and “proving” withappropriate documentation or testimony fromwitnesses that the will is valid (that is, it wasproperly signed and witnessed). The term“probate” is also used to refer in a general wayto the process of qualifying as a personalrepresentative, i.e., as an executor named in a will,or as an administrator if there is no will, to carryout the terms of the will and otherwise administerthe decedent’s estate. The term “probate” is alsoused to refer to the general process ofadministering an estate.

Q: How is a will probated?

A: The person who intends to qualify as personalrepresentative of the estate of the decedent takesthe original will and a certified death certificateto the Clerk’s Office of the Circuit Court that hasjurisdiction over the will. Jurisdiction isdetermined by the decedent’s residency at thetime of his or her death and is discussed later inthis Chapter. In proving that the will is valid, theClerk or Deputy Clerk will review the provisionsof the will and, more particularly, thecircumstances under which it was signed. If itappears from a self-proving affidavit (discussedlater in this Chapter) attached to the will or fromthe testimony of witnesses that the decedentsigned the will in proper fashion, the will isadmitted to probate, or “probated.” The probateprocess includes the completion and filing ofseveral other forms which are discussed later inthis Chapter. In most localities it is advisable tocall the Clerk for an appointment for probate andto determine ahead of time whether there are anyspecial procedures or requirements.

CHAPTER III

Probate and Qualification

There are methods of probate, other than theprocedure described in this Chapter, which willrequire appearance in the Circuit Court rather thanbefore the Clerk of Court. A probate proceedingbefore the Clerk is the method most frequently used.

Q: When is probate required?

A: The probate of a will is not always required.For example, there may be no property whichpasses by will. However, since it is a relativelysimple process, the better approach is to probatethe will. If a person intentionally destroys orconceals a will in order to prevent its probate, heor she is guilty of a felony, and if a person hascustody of a will and refuses to produce it, theCourt has the authority to summons that personand compel the production of the will.

Q: Who is responsible for presenting the will forprobate?

A: Anyone can present a will for probate. Usuallythe person who intends to qualify as executor isthe one who presents the will for probate.

Q: What is required to prove a will?

A: The proving of a will is usually fairly simple.To be valid, the will must be in writing, signedby the decedent or at his or her direction, andeither wholly in the decedent’s handwriting orwitnessed by at least two competent witnesses,both present at the same time.

Some wills are “self-proved” which means thatthe will has an affidavit attached to it in which aNotary Public acknowledges by a recital ofcertain information that the will was properlyexecuted. This is referred to as a “self-provingaffidavit.” The self-proving affidavit is usually aseparate page found at the end of the will.

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Q: In addition to the will itself, what informationdoes the Clerk require in order to probate a will?

A: The Clerk requires that information requestedon several forms be provided. The forms can becompleted ahead of time or with the assistanceof the Clerk at the time of the appointment. TheClerk’s Office will provide blank forms. Theseforms can also be downloaded from theCommonwealth of Virginia website at:www.courts.state.va.us/forms/circuit. Thesegenerally are:

1. Probate Information or Memorandum ofFacts. Information about the decedent isrequested, including the full name, address, placeand date of death and marital status, which canbe found on the death certificate. Otherinformation requested can be found in the willitself, if there is one. Certain personal informationabout the person seeking appointment is alsorequested.

2. Probate Tax Return. If the estate is worth morethan $15,000, the Clerk will assess a tax based onthe estimated value of the decedent’s real estatein Virginia and personal property owned by thedecedent, such as furniture, livestock, machinery,vehicles, cash, bank accounts, stock, bonds, etc.(but excluding certain assets such as lifeinsurance, IRAs and retirement plan benefitswhich pass to a named beneficiary other than theestate; and survivorship property (explained inChapter XI)). This amount is the “probate tax”(different from the “estate tax” discussed inChapter VIII) and must be paid at the time ofprobate.

3. List of Heirs. The List of Heirs identifies thedecedent’s family members who would beentitled to inherit the estate if there were no will.The names, addresses, ages (or at least adesignation whether such persons are 18 or older)and degree of kinship of these persons must beprovided. If the decedent is survived by a spouse,then the spouse is listed as the heir unless thereare children of the decedent who are not also thechildren of the surviving spouse. In that case, all

of the children are also listed. If there is nosurviving spouse, then all of the living children,and the descendants of any deceased children,are listed. The remaining order of inheritance isdiscussed in Chapter X. The order of priority inwhich the decedent’s relatives are determined tobe heirs is contained in Virginia Code Section64.1-1.

Some Clerks have different requirementsregarding the persons who are to be identifiedon the List of Heirs, and in some locales inVirginia the Clerk always requires that thechildren be listed.

Q: What witnesses are needed at probate?

A: If the will has a self-proving affidavit attachedto it, witnesses need not appear before the Clerkor Court.

If the will is not self-proving, check with the Clerkto determine whether the persons who witnessedthe decedent’s signing of the will must appear orwhether the Clerk will accept a sworn statementfrom the witnesses. The Clerk will tell youwhether one or two witnesses will be requiredand whether the testimony must be given inperson or in a sworn statement. The procedureby which witnesses to the will give theirtestimony (whether in person or in a swornstatement) may differ significantly from oneClerk’s Office to another.

If the will is not witnessed but is wholly in thetestator ’s handwriting, two people with nointerest in the estate who can identify thetestator’s handwriting must appear at probate.

Q: What else is needed at the time of probate?

A: In addition to the information needed tocomplete the above forms, the following shouldbe provided:

1. The original of the will, if there is one.

CHAPTER III: PROBATE AND QUALIFICATION

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2. Unless the will waives surety on the bond ofthe personal representative, arrange to have arepresentative of an insurance company come toprobate to provide surety on the personalrepresentative’s bond. In some jurisdictions theClerk will make the arrangements for surety. Therequirement of surety is discussed in a laterquestion.

3. A check with which to pay the Clerk’s fee andthe probate tax.

4. If a person nominated as executor declines toserve, a letter to that effect from the person sonominated.

5. A certified death certificate or, in certain cases,a death notice from the newspaper. Check withthe Clerk’s Office involved ahead of time.

Q: What is qualification?

A: Qualification of the executor or administratorusually occurs at the same time as probate of thewill. It involves the swearing in of the personalrepresentative of the estate by the Court or theClerk. Once qualified, the personal representativehas the authority as well as the responsibility toadminister the estate, and his or her performanceis reviewed by the Commissioner of Accountsthrough certain written reports discussed later.

Q: When is qualification required?

A: Qualification of an executor or administratoris not required by law but, as a practical matter,it may be necessary in order to administer theestate. For example, it may be necessary forsomeone to be able to sign as personalrepresentative in order to transfer assets from thedecedent’s name into the name of a beneficiaryor to use the decedent’s assets to pay claimsagainst the estate.

Examples of assets that frequently can betransferred without qualification are:

1. Assets owned jointly with another withsurvivorship rights.

2. Real estate in the decedent’s name that isspecifically given to a beneficiary in thedecedent’s will or that passes automatically toheirs by way of intestate succession. (Even thoughqualification may not be required in order forownership to be transferred, the will, if any,should be probated or, in the case of intestacy, anaffidavit filed with the Clerk to establish evidenceof the change in ownership. See Chapter XI forfurther details on real estate in an estate.)

3. Assets of estates not exceeding $15,000 ifcertain requirements are met.

4. Small sums in banks, trust companies,savings and loans, and credit unions, if theamount does not exceed $15,000 and certainrequirements are met.

5. Motor vehicles, if certain Department of MotorVehicles forms are completed.

6. Life insurance, IRAs and retirement planbenefits payable to a named beneficiary ratherthan to the estate.

Further information on transferring assetswithout qualification of an executor oradministrator is provided in Chapter VI.

Q: Who may qualify as a personal representative?

A: Individuals who qualify as either executor oradministrator:

1. must be 18 years of age or older;

2. must be able to obtain surety, if required;

3. no longer are required to be residents ofVirginia but when a nonresident qualifies, bondwith surety will be required unless a residentpersonal representative qualifies at the same timeor the Court or Clerk waives surety because thevalue of the estate does not exceed $15,000; and

4. must satisfy the Court or Clerk that he or sheis suitable and competent to perform the dutiesrequired of a personal representative.

Institutions such as banks or trust companies mayserve if authorized to conduct trust business inVirginia.

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CHAPTER III: PROBATE AND QUALIFICATION

Q: Where do probate and qualification take place?

A: If a will is to be offered for probate, or if aperson intends to qualify as personalrepresentative, the proper place to do so is in theCircuit Court, usually before the Clerk or DeputyClerk, for the County or City in which:

1. the decedent had a house or residence; or

2. if none, where the decedent had other realestate; or

3. if none, where the decedent died or had otherproperty.

If the decedent resided in a nursing home becauseof advanced age or impaired health at the timeof his death, then usually proper jurisdiction forprobate and qualification is determined by thelocation of the decedent’s residence prior toadmission to the nursing home. If the decedentresided in a retirement complex (but not a nursinghome) at the time of his death, then usually thelocation of the retirement complex determineswhich court has jurisdiction.

Q: What is a personal representative’s bond andsurety on the bond?

A: When a personal representative qualifies, he orshe is required to take an oath to carry out the dutiesof that office, and to post a bond promising to beresponsible for paying the amount of any loss tothe estate that results from improper acts or actionsof the personal representative. The amount of thebond will at least equal the value of the personalestate and in most cases is double that amount. Ifthe will authorizes the sale or rental of real estate,the value of the real estate or its rents and profits istaken into account in calculating the amount of thebond. The bond may be set in an amount greaterthan these values. If surety on the bond is required,it can be provided by the agreement of an insurancecompany to back up the bond. This insures thatthere will be funds to cover any loss due to thepersonal representative’s improper acts if thepersonal representative cannot or will not makerestitution. The premium for surety is paid fromestate assets.

The requirement of a surety is sometimes waivedby specific language in the will. Surety is notrequired if all the beneficiaries of a decedent’sestate are personal representatives of thedecedent’s estate. Also, surety is not required ifthe value of the personal estate does not exceed$15,000 and the person seeking qualification willhave no power of sale over real estate. No suretyis required on an individual serving jointly witha bank or trust company exempt from the suretyrequirement. Under current Virginia law, one ormore nonresident individuals serving as personalrepresentative without a resident personalrepresentative will be required to have suretyunless the value of the estate does not exceed$15,000.

Q: What is the “certificate of qualification “ or“letters testamentary”?

A: The certificate of qualification, sometimesreferred to as “letters testamentary,” is the paperthat the personal representative receives from theClerk at the time of qualification which states thatthe person has qualified as executor oradministrator and has authority to act on behalfof the estate.

Q: What is the role of the Commissioner ofAccounts?

A: The Commissioner of Accounts is a personappointed by the Court to oversee the work ofpersonal representatives and other fiduciaries.The Commissioner reviews the Inventoryprepared by the personal representative beforeit is filed in the Clerk’s Office. (The Inventory isexplained in Chapter IX.) The personalrepresentative must also prove to theCommissioner, in accordance with Virginia law,that all property shown on the Inventory or laterreceived by the estate is properly handled. Thepersonal representative provides this informationin the form of an annual account of each receiptand each disbursement made or, in certain cases,by a sworn affidavit of the personalrepresentative. (The annual account is discussedfurther in Chapter IX.)

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CHAPTER III: PROBATE AND QUALIFICATION

Q: What is notice of probate?

A: A personal representative or person offeringa will for probate is required to provide writtennotice of probate and qualification andentitlement to copies of the will, inventories,accounts and other reports, to beneficiaries andheirs. At the time of probate or qualification, theClerk will provide the form for the notice, withappropriate instructions regarding its use. Afternotice is given, the person who was responsiblefor sending out the notice must file with the Clerkan affidavit that notice has been given.

Q: Is notice of probate always required?

A: No. The notice procedures are required onlywhen the known assets passing under the will orby intestacy exceed $5,000. Some persons are notrequired to receive notice, such as the personalrepresentative who is also a beneficiary, trustbeneficiaries (if the trustee is notified), andpersons who receive bequests worth less than$5,000 who are not heirs at law of the decedent.There are other categories of persons who are notrequired to receive notice.

Q: Who has the responsibility of sending noticeof probate?

A: The personal representative of the estate mustsend a notice of probate. If no personalrepresentative qualifies, the responsibility shiftsto the person who offered the will for probate. Ifthere is no will, any person having an interest inthe estate may give the notice.

Q: When does the notice of probate have to befiled?

A: The notice of probate must be sent within thirty(30) days from the date the personal representativequalified or the will was admitted to probate.

CHAPTER IV

Notifying the Beneficiaries

Q: Who is entitled to notice?

A: The following persons:

1. the surviving spouse of the decedent, if any;

2. all heirs at law of the decedent, whether ornot there is a will;

3. all living and ascertained beneficiaries underthe will of the decedent and the beneficiaries ofany trust created by the will; and

4. all living and ascertained beneficiaries underany will of the decedent previously probated inthe same court.

Q: What information must the notice of probatecontain?

A: The notice must contain the followinginformation:

1. the name and date of death of the decedent;

2. the name, address and telephone number of apersonal representative or a proponent of a will;

3. the mailing address of the Clerk of Court inwhich the personal representative qualified or thewill was probated;

4. the following statement: “This notice does notmean that you will receive any money orproperty.”

5. the following statement: “If personalrepresentatives qualified on this estate, they arerequired by law to file an inventory with thecommissioner of accounts within four monthsafter they qualify in the clerk’s office, to file anaccount within sixteen months of theirqualification, and to file additional accountswithin sixteen months from the date of their lastaccount period until the estate is settled. If youmake written request therefor to the personal

11

representatives, they must mail copies of thesedocuments (not including any supportingvouchers, but including a copy of the decedent’swill) to you at the same time the inventory oraccount is filed with the commissioner ofaccounts unless (i) you would take only as an heirat law in a case where all of the decedent’s probateestate is disposed of by will, or (ii) your gift hasbeen satisfied in full before the time of such filing.Your written request may be made at any time; itmay relate to one specific filing or to all filings tobe made by the personal representative, but it willnot be effective for filings made prior to its receiptby a personal representative. A copy of yourrequest may be sent to the commissioner ofaccounts with whom the filings will be made.After the commissioner of accounts hascompleted work on an account filed by a personalrepresentative, the commissioner files it and areport thereon in the clerk’s office of the courtwherein the personal representative qualified. Ifyou make written request therefore to thecommissioner before this filing, the commissionermust mail a copy of this report and anyattachments (excluding the account) to you onor before the date that they are filed in the clerk’soffice.”

6. the mailing address of the Commissioner ofAccounts with whom the inventory and accountsof the personal representative must be filed, ifthey are requested.

The Clerk will provide a form with the requiredinformation that can be used to notify theappropriate persons.

Q: Are there any other notice of probaterequirements?

A: Yes. The personal representative or proponentof the will, within four months after qualificationor admission of the will to probate, must recordin the Clerk’s Office where the will is probatedan affidavit stating the names and addresses ofthe persons to whom notice was sent and the datesuch notice was sent. The Clerk must be paid afee when the affidavit is filed. The Clerk willprovide a special form for this affidavit.

Q: What happens if proper notice of probate isnot given?

A: The failure to give the required notice doesnot affect the validity of the will nor does it makeany person required to give notice, acting in goodfaith, liable to any person entitled to receivenotice. However, the Commissioner of Accountswill not approve the accounts of the personalrepresentative who fails to give notice and to filethe affidavit. Moreover, if the affidavit has notbeen filed within the required four months, theCommissioner of Accounts shall issue a summonsrequiring the fiduciary to comply. If the fiduciarystill fails to comply, the Commissioner ofAccounts shall report the fact to the Court forfurther action.

CHAPTER IV: NOTIFYING THE BENEFICIARIES

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Q: Does the surviving spouse have any specialrights to property in the estate of the deceasedspouse?

A: The surviving spouse of a Virginia decedentmay claim an “elective share” of the decedent’sestate, whether or not any provision is made forthe spouse in the decedent’s will, and whether ornot the decedent dies intestate. This election mustbe made within six (6) months from the later of(i) date of probate or (ii) date of qualification of aperson to administer an intestate estate. The six-month limitation period in which the survivingspouse makes the election may be extended incertain circumstances. The spouse’s election mustbe made in person before the court havingjurisdiction over the estate or in a writing filedwith the Clerk of the Court having jurisdictionover the estate. In addition to claiming an electiveshare, the surviving spouse may claim certainexemptions and allowances that are discussedlater in this Chapter.

Q: What is the elective share of the survivingspouse and how is it calculated?

A: The surviving spouse has a statutory right toelect to take a specified share of the decedent’sestate. If the surviving spouse claims the electiveshare, he or she is entitled to an amount equal toone-third (a) of the decedent’s “augmentedestate” if the decedent had any children or otherdescendants to survive him or her. The electiveshare is an amount equal to one-half (½) of thedecedent’s “augmented estate” if the decedenthad no children or other descendants to survivehim or her. The elective share is calculated bydetermining the value of the decedent’s“augmented estate” and then applying the

CHAPTER V

Rights of the Surviving Spouseand Children

appropriate fraction (a or ½) to the value of theaugmented estate. When the value of the electiveshare has been determined, the value of anyassets that are considered to be a part of the“augmented estate” and that pass to thesurviving spouse anyway, regardless of theelection (e.g., joint property, certain propertyalready given to the surviving spouse by thedecedent, etc.) are credited against the value ofthe elective share and the remaining value of theelective share is satisfied from other property inthe estate. When a surviving spouse claims anelective share, other beneficiaries of the estatemay receive less than they otherwise would have.Factors such as the kind of property held in thedecedent’s estate, the value and kind of transfersmade by the decedent during life, and thereductions made in other beneficiaries’ shares canmake the calculation very complex. The personalrepresentative is advised to seek legal andaccounting advice if the surviving spouse advisesthat he or she is going to, or in fact does, claimthe elective share. The personal representativeshould also be very cautious about distributingproperty from the estate during the period whenthe surviving spouse still has the right to claimthe elective share.

Q: What is the “augmented estate”?

A: The “augmented estate” is a means ofpreserving a fair share of the decedent’s propertyfor the surviving spouse, regardless of whetherthe decedent chooses to benefit the spouse bywill. The calculation of the augmented estate isrequired only if the surviving spouse claims the“elective share” discussed above. In very generalterms, the augmented estate consists of thedecedent’s estate under the control of the personal

13

representative, to which is added certain propertyover which the personal representative might nototherwise have control, and from which certainproperty is excluded. The personal representativemust contribute, from the decedent’s propertyunder his or her control, whatever is necessaryto make up the elective share, once the personalrepresentative has been notified that thesurviving spouse has claimed an elective share.

Q: Does a surviving spouse who is omitted fromthe deceased spouse’s will have any special rightsto the property in the estate?

A: A surviving spouse who is omitted from thewill of the decedent is entitled to the same shareas a surviving spouse of a decedent who dieswithout a will (which is explained in Chapter X),if the will in which the surviving spouse isomitted was signed prior to the marriage andthere is no premarital or post-marital agreementto the contrary. In some cases, the omitted spouseshare may be different from the elective sharediscussed above. A surviving spouse who has anyquestions about the share passing to him or hershould contact an attorney immediately.

Q: Does the surviving spouse have any rights inthe marital residence?

A: Often the marital residence is titled in suchfashion that it will pass automatically to thesurviving spouse, regardless of what the willprovides. If the title to the marital residence, asexpressed in the deed, is “joint with right ofsurvivorship” with the surviving spouse or“tenants by the entirety,” then the survivingspouse automatically becomes the sole owner,subject to any mortgage or other liens on thehouse. If the spouse’s rights in the maritalresidence cannot immediately be determined,then the spouse is entitled to reside in the maritalresidence for a period of time, without any chargefor rent, until the spouse’s rights can bedetermined. A surviving spouse will have thisright to reside in the marital residence if thedecedent died intestate and is survived by oneor more children or other descendants from a

prior marriage or if the surviving spouse decidesto claim the elective share.

Q: Do the surviving spouse and/or children of adecedent have any rights in the property of theestate that are superior to the rights of creditorsor of other beneficiaries named in the will?

A: The surviving spouse and minor children ofa decedent are entitled to claim one or more of: aFamily Allowance, an Exempt PropertyAllowance and a Homestead Allowance. Oftenthese allowances are claimed only when the estateis very small or is insolvent because theallowances are superior to the rights of certaincreditors and beneficiaries named in the will.However, the allowances may be claimed evenin large and solvent estates. These allowances areexplained in the following questions andanswers.

Q: What is the Family Allowance and how is itclaimed?

A: The Family Allowance is a sum paid from theestate for the support of the surviving spouse andminor children. The Allowance is paid for nolonger than a period of one year if the estate isinsolvent. It is payable to the spouse, if living,for the use and benefit of the spouse and minorchildren. If the spouse is not living, it is payableto the person having care and custody of theminor children. The amount of the Allowancegenerally will not exceed $18,000, but this mayvary on a case-by-case basis. The amount has beenincreased by action of the General Assembly inrecent years and is subject to further change. TheAllowance must be claimed within one year ofthe death of the decedent, either in person in thecourt having jurisdiction over the estate or by anotarized writing filed in the Clerk’s Office of thecourt having jurisdiction over the estate. TheFamily Allowance is paid in addition to any sharegiven to the spouse or minor children by will orby intestate succession or the elective share. It haspriority over all other claims against the estate.

CHAPTER V: RIGHTS OF THE SURVIVING SPOUSE AND CHILDREN

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Q: What is the Exempt Property Allowance andhow is it claimed?

A: The Exempt Property Allowance entitles thespouse, if living, and if not, the minor children ofthe decedent, to select up to $15,000 worth ofhousehold furniture, automobiles, furnishings,appliances and personal effects from the estate.The Exempt Property Allowance is in additionto the Family Allowance and is also in additionto any share given to the spouse or minor childrenby will or by intestate succession or by the electiveshare. It has priority over all other claims againstthe estate except the Family Allowance. It isclaimed in the same manner and in the same timeframe as the Family Allowance.

Q: What is the Homestead Allowance and how isit claimed?

A: The Homestead Allowance entitles the spouse,if living, and if not, the minor children of thedecedent, to an allowance of $15,000 from theestate. The Homestead Allowance is in additionto the Family Allowance and the ExemptProperty Allowance but it replaces any sharegiven to the spouse or minor children by will orintestate succession unless that share is less than$15,000. If the surviving spouse claims the electiveshare (discussed in this Chapter), then thesurviving spouse is not entitled also to theHomestead Allowance.

Q: Does every surviving spouse of a decedent havea right to claim the elective share or any of theother allowances discussed above?

A. Every spouse has the right to claim the electiveshare and the allowances discussed above unlessthe spouse waived the right to claim any of theseduring the lifetime of the decedent by a signedagreement. However, the agreement mustcomply with certain requirements set out by lawin order to be an effective waiver of theallowances or elective share.

Q: Does a child who is omitted from the will of aparent have the right to make a claim for a shareof the deceased parent’s estate?

A: If the deceased parent made a will that wassigned before any children were born to theparent, then a child may claim the same sharethe child would have received had the parentdied without a will. Under current Virginia law,if a deceased parent dies without a will then achild is entitled to a share only if (i) there is nosurviving spouse, or (ii) the decedent left childrenwho are not also the children of the survivingspouse. This means that in many cases a childomitted from a will has no claim to a share of thedeceased parent’s estate.

If the deceased parent’s will was signed when theparent had at least one living child who wasprovided for in the will, then any childsubsequently born who is not provided for in thewill is entitled to the smaller of (i) the same shareas the child who as provided for in the will, or(ii) the share the child would have received hadthe parent died without a will.

If the deceased parent made a will after the birthof all the children born to the parent and omittedone or more of the children from the will, theomitted child or children have no claim againstthe estate by virtue of being “omitted.”

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CHAPTER V: RIGHTS OF THE SURVIVING SPOUSE AND CHILDREN

Q: Is there any way to avoid the need to qualify asexecutor or administrator if there are only a fewassets to transfer?

A: There are several Virginia statutes, includingthe ones referred to as the “Virginia Small EstateAct” that permit transfer of certain assets in adecedent’s estate without an executor oradministrator. Some of these statutes arediscussed below. The transfer of jointly heldassets is discussed in Chapter XI.

Q: How is money owed to the decedent collectedif no one qualifies as executor or administrator?

A: The Commonwealth of Virginia, the UnitedStates, labor unions, employers, and certain otheragencies may pay tax refunds, death benefits, orcertain other types of benefits owed to thedecedent and not exceeding $15,000, directly tothe surviving spouse of the decedent, or if thereis no surviving spouse, to the persons who areentitled to the estate. They may withholdpayment for sixty days from the date of death, inorder to see if anyone qualifies during that timeperiod, and thereafter, may pay the benefits upona request from the surviving spouse or otherpersons entitled to them. Bank accounts, savingsand loan accounts, and credit union accountswith balances of not more than $15,000 may alsobe transferred to the surviving spouse, or if none,to the persons entitled to the estate when therehas been no qualification on the estate within 60days of death.

Q: Can stock certificates be transferred if no onequalifies as executor or administrator?

A: If the value of a stock in the decedent’s estateis $15,000 or less, and no one qualifies within thefirst sixty days following death, the corporation

CHAPTER VI

Administration of Small Estates

issuing the stock certificates, or its transfer agent,may, upon receiving the stock certificates, makea transfer to the surviving spouse, or if there isno surviving spouse, to the persons who areentitled to the estate. However, the corporationmay, in its discretion, require someone to qualifyas executor or administrator before making thetransfer.

Q. What about automobiles and boats?

A: The Virginia Department of Motor Vehicleswill permit title to a vehicle to be reregistered inthe name of the surviving spouse or other personsentitled to it upon receiving a certification thatno one has qualified to administer the estate andthat all debts have been paid or will be paid fromthe proceeds from a sale of the vehicle. The DMVhas the necessary forms to make the transfer butwill need for the title to the vehicle to bepresented. The U. S. Bureau of Customs has asimilar procedure for transferring boats andwater craft registered with it.

Q: What is the Virginia Small Estate Act and howdoes it simplify administration of an estate?

A: The Virginia Small Estate Act providesanother means for a decedent’s assets to betransferred without the necessity of qualifying apersonal representative. The person seekingtransfer of the assets must provide an affidavitstating that the value of the entire personalprobate estate is $15,000 or less; that a sixty-dayperiod has passed since the death of the decedentand no one has qualified or applied to qualify aspersonal representative; that the will, if any, wasprobated and the list of heirs filed; and that theperson seeking transfer is entitled to the assetsand why. The affidavit is presented to the personin possession of the property with a request that

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it be transferred. If the person in possessionrefuses to deliver the property, the claimant mayseek recovery through a court proceeding.

Q: What is required if real estate is the only assetin the estate ?

A: If the decedent died with a will, the will shouldbe probated in order to pass title to the decedent’sreal property to the new owner. It is not necessaryto qualify an executor if there is no need to sellthe real estate and all debts and claims can beotherwise satisfied. If the decedent died withouta will, any interested person may file an affidavitdescribing the real estate, acknowledging thereis no will, and providing the names and addressesof the heirs at law. The affidavit is filed in thecourt where the real estate is located and servesas evidence of ownership passing to the heirs.Most Clerks have a preprinted form of affidavitto be used for this purpose.

CHAPTER VI: ADMINISTRATION OF SMALL ESTATES

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Q: Is there a particular order of priority for thepayment of debts and claims against the estate?

A: When a decedent’s estate has sufficient assetsto pay all debts and claims, the order in whichdebts and claims against the estate are paid makesno real difference so long as the executor is carefulto follow any directions in the will regardingassets that are to be preserved for distributionrather than sold to pay debts and claims.Insolvent estates, i.e., estate in which debts,expenses and claims will exceed the value of theassets of the decedent under the control of thepersonal representative, must pay debts andclaims in the following order:

1. Costs and expenses of administration;

2. Certain family and homestead allowances(discussed in Chapter V above);

3. Funeral expenses not to exceed $2,000;

4. Debts and taxes given priority under federallaw;

5. Medical and hospital expenses of the lastillness of the decedent, including compensationof persons attending the decedent, not to exceed$400 for each hospital and nursing home and $150for each person furnishing services or goods;

6. Debts and taxes due Virginia;

7. Debts due by the decedent was acting in afiduciary capacity for another; and

8. All other claims.

CHAPTER VII

Paying Debts and ClaimsAgainst the Estate

Q: Is the executor personally liable for any debtsand claims against the estate?

A: As a general rule the personal representativeof a decedent’s estate is not personally liable forthe decedent’s debts or claims against thedecedent’s estate. Liability could, however, arise,for example, if the personal representative didnot act in good faith, failed to distribute inaccordance with the directions in the will or inaccordance with an Order of Distribution(discussed in Chapter IX) or, in the case of aninsolvent estate, if the personal representative didnot follow the order of priority for payment ofdebts and claims.

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Q: Must all estates pay a probate tax?

A: No. When the value of the estate exceeds$15,000, a state probate tax is imposed on theprobate of every will or grant of administrationat a rate of 10¢ for every $100 of value of assets inthe estate. In addition, the city or county mayimpose a local tax of one-third of that amount.The state probate tax is not imposed on estatesof less than $15,000.

Q: Must all estates file a federal estate tax return?

A: No. A federal return must be filed when thegross estate exceeds the amount specified infederal law to be the “applicable credit amount”for the year of the decedent’s death. This amountis $1,500,000 in 2004 and 2005, $2,000,000 in 2006-2008, and $3,500,000 in 2009. Under federal lawas it exists in 2005, there will be no federal estatetax in 2010, but in 2011 the estate tax returns andthe applicable credit amount drops back to$1,000,000. Therefore, it is important to check thelaw for the year of the decedent’s death. When afederal estate tax return has to be filed, a Virginiaestate tax return should also be filed. If thedecedent owned real property in another state, astate tax return may need to be filed in that stateas well.

Q: What is the gross estate?

A: The gross estate, a tax term, includes allproperty owned by the decedent at death andincludes, for example, such items as life insuranceeven though payable to a beneficiary other thanthe decedent’s estate, jointly-owned propertywhich, by virtue of the way title is held, passesautomatically to a survivor, and certain annuitiesand retirement benefits. If the gross estate, lessallowable deductions, exceeds the applicable

CHAPTER VIII

Paying Taxes

credit amount, i.e., the amount not subject toestate tax in the year of the decedent’s death,federal and state estate taxes may be due. Thegross estate is often larger than the estate reportedfor probate purposes. The personalrepresentative needs to understand the differencebetween the probate estate and the gross estateto be able to file the proper reports and returns.

Q: Who must file the decedent’s final income taxreturn and when must it be filed?

A: The final income tax return for the decedentcovers that portion of the last calendar year thatthe decedent was alive and must be filed by thepersonal representative of the decedent’s estateor by any other person responsible for theproperty of the decedent. For a calendar yeartaxpayer, the final federal income tax return isdue on April 15 of the year following thedecedent’s death, and the Virginia income taxreturn is due on May 1 of that year. In many cases,the personal representative will elect to file a jointreturn with the surviving spouse for the finalincome tax return.

Q: Is income that is earned during theadministration of an estate taxable?

A: Yes. An estate is a separate taxable entity forincome tax purposes. The personal representativemust file a “fiduciary income tax” return and payany tax owed (from the estate’s assets) if theincome of the estate is $600 or more in eachtaxable year of the estate.

Q: If the decedent made gifts, must gift taxes bepaid?

A: Not necessarily. Gifts made by the decedentprior to his death in excess of the annual exclusion

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require that a gift tax return be filed. The gift taxannual exclusion is the amount which the IRSexcludes from reporting and taxing requirements.Currently the annual gift tax exclusion amountis $11,000 per recipient per year (but this amountis subject to change based on an inflationadjustment formula under federal tax law). Thepersonal representative of the decedent’s estateis responsible for the filing of the decedent’s finalgift tax returns.

CHAPTER VIII: PAYING TAXES

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Q: What should the executor or administrator doafter qualification?

A: In general terms, it is the duty of the executoror administrator to gather the assets of thedecedent, satisfy the decedent’s debts, and thendistribute remaining assets as provided by lawor, if there is a will, as directed in the will.

There are many specific actions involved inperforming this general duty, some being requiredby law and others being practical necessities.Reference should be made to the Table of Contentsof the manual for many of these responsibilities.The requirements to notify beneficiaries and heirsis discussed in Chapter IV. Safeguarding the assetsis discussed in Chapter I.

If there is a will that has been probated, thepersonal representative should review the willto determine who the beneficiaries are, whatproperty is being disposed of by the will, whatpowers are granted to the personal representativeby the will, and whether there are any restrictionsset out in the will itself regarding the transfer ofthe property to the named beneficiaries. Thepersonal representative should also be mindfulof provisions in the will or other circumstancesthat may cause problems, such as underagebeneficiaries, beneficiaries named who aredeceased or cannot be located, beneficiaries whoare incompetent or under some disability, thosewhom one would expect to be beneficiaries (suchas spouse and children) but have been omitted,and unusual or ambiguous provisions which aredifficult to interpret.

If the personal representative is uncertain howto proceed, the personal representative will need

CHAPTER IX

Responsibilities, Powers and Rightsof the Personal Representative

further advice and counsel. This may be obtainedfrom the Court, if necessary.

The personal representative should establish achecking account for the estate and, dependingupon the size, establish additional savings or moneymarket accounts. The personal representative willneed to present a death certificate and a certificateof qualification to the bank at the time the accountis opened. A tax identification number must beobtained for the estate from the Internal RevenueService if the estate’s assets will generate income.The number is obtained by filing federal form SS-4.Consideration should also be give to filing of IRSForm 56, Notice Concerning Fiduciary Relationship.This form is filed when a fiduciary relationship iscreated or terminated. These forms may be obtainedfrom the IRS web site: www.irs.gov.

The personal representative should transfer thecontents of the decedent’s personal bank accountsto the estate account, reimburse any estateexpenses which were advanced by others priorto qualification and maintain detailed records foreach transaction in the bank account. The recordsfor the bank accounts should contain allinformation that is needed for the required reportto the Commissioner of Accounts, including theamount and source of each deposit and the payee,amount, and purpose of each check written. Allreceipts, statements and invoices and bills whichare paid should be saved as supportingdocumentation.

Q: Who handles the collection and valuation ofassets?

A: This responsibility falls upon the personalrepresentative. Personal representatives must file

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with the Commissioner of Accounts an Inventorylisting all of the decedent’s personal estate underthe supervision and control of the personalrepresentative, any real estate over which thepersonal representative has the power of sale, andother real estate of the decedent of which thepersonal representative has knowledge. TheInventory also requires additional informationregarding joint accounts and real estate outsideVirginia. The personal representative may selectappraisers to value any assets of uncertain orunknown value. If the decedent’s estate is ofsufficient size to require the filing of a federalestate tax return, appraisals of certain assets listedon the estate tax return will be required.

Even if no formal appraisals are required, thepersonal representative is responsible fordetermining and establishing the value of thedecedent’s property as of the date of thedecedent’s death. This date-of-death value isreported on the Inventory and establishes a newincome tax basis in the assets. The date-of-deathvalue is especially important for tax purposesbecause when estate property is sold, whetherby a personal representative or by a beneficiaryto whom the property has been distributed, thedate-of-death value is the basis used to determinewhether there is a gain or loss at the time of sale.

Q: Who is responsible for the investment,management and preservation of the assets in theestate?

A: The personal representative is responsible forthe management, preservation and care of theassets under his control. The personalrepresentative must exercise the same degree ofcare, skill, prudence and diligence that a prudentperson familiar with such facts and acting on hisor her own behalf would exercise under similarcircumstances. The personal representative mustinvest estate assets within four months ofreceiving them. After four months the personalrepresentative will be responsible for generatinginterest on the assets.

Q: May assets in the estate be sold?

A: If the decedent’s will directs that certain assetsnot be sold (this would include specific bequestsof property owned by the decedent), those assetsshould not be sold unless necessary for thepayment of funeral expenses, charges ofadministration or debts. Other assets under thepersonal representative’s control should be soldas soon as convenient if they are likely to declinein value. The personal representative has noauthority over the decedent’s real estate unlessthe authority was granted by will.

Q: What types of reports, if any, must the personalrepresentative file, and what are the filing dates?

A: Notice of Probate. Within thirty (30) days afterprobate and qualification, the personalrepresentative should send notice to beneficiariesand heirs that the will has been probated and/orthat a personal representative has qualified. Moredetail on the procedure of notifying beneficiariesand heirs is provided in Chapter IV.

Small Estates. When the decedent’s estate doesnot exceed the statutory amount ($15,000 as ofJanuary 1, 2004) and the personal representativedoes not have power of sale over real estateowned by the decedent, the requirement for filingan inventory and an accounting is waived. Inmany instances it would not be necessary to evenhave any qualification of a personalrepresentative even though there might be reasonto probate or file the will.

Inventory. The Inventory must be filed with theCommissioner of Accounts within four (4)months after the qualification date. It lists allassets in the decedent’s name or payable to theestate at their date-of-death value.

Accountings. Unless the estate is of a type forwhich the requirement to account to theCommissioner is satisfied by a sworn affidavit,an account of what has occurred in the estateduring the year must be filed annually. The firstaccount is due sixteen (16) months after the

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CHAPTER IX: RESPONSIBILITIES, POWERS AND RIGHTSOF THE PERSONAL REPRESENTATIVE

qualification of the personal representative andshould cover the first twelve (12) monthsfollowing qualification. After the first account hasbeen filed by the fiduciary, second andsubsequent accounts must be filed annually, eachdue within four months after the end of theparticular accounting period involved.

At the time of qualification, the Clerk willdistribute to the personal representative formsand instructions for the filing of the Inventoryand Accountings. The Clerk may also distributeany specific instructions the Commissioner ofAccounts may issue regarding the format andfiling of the Inventory and Accountings.

Tax Returns. If the estate’s value exceeds theamount not subject to federal estate tax (discussedin Chapter VIII) (including not only assets in thehands of the personal representative, but alsoother assets over which the decedent had controlat the time of death, such life insurance proceedsand property held jointly with another), thepersonal representative must file federal andVirginia estate tax returns within nine (9) monthsafter the date of death.

The estate is a separate taxpayer for income taxpurposes and must file annual income taxreturns. In addition, federal and state income taxreturns may need to be filed for the decedent forthe year in which the decedent died as well asfor any prior years where returns were due buthave not been filed. The tax filing requirementsare discussed in more detail in Chapter VIII.

Other. There are other important dates which areapplicable only in certain estates, such as deadlinefor filing a suit to contest a will, the deadline forfiling a disclaimer, the six-month alternatevaluation date if an estate tax return is being filed,the deadline for the spouse to claim the electiveshare and the deadline for claiming specialallowances and exemptions. Some of these arediscussed elsewhere in this manual and othersare outside the scope of this manual.

Chapter XV contains an estate administrationchecklist to help keep track of the reportsdiscussed in this manual.

Q: Is there any particular time frame within whichdistributions (including the funding of trusts) andpayment of bequests must be made?

A: Personal representatives cannot be compelledto pay any legacy, or bequest of property, givenby will or make distribution of the estate of thedecedent until after six months from the date ofqualification of the personal representative. Thepersonal representative may require the legatee,or beneficiary receiving a legacy, to sign arefunding bond. The refunding bond requires thebeneficiary to refund the distributionproportionately to any debts or demands thatmight thereafter appear against the estate. Inaddition, no personal representative is requiredto transfer, pay over or distribute any propertysubject to a federal estate tax until the amount ofthe tax due has been paid, or adequate securityis provided for such payment.

In simple terms, this means the personalrepresentative can safely wait at least six monthsbefore making any distribution and in some casesshould wait a longer period of time. However,interest must also be paid on any cash legacybeginning one year after the date of death.

Q: What precautions should be taken in dealingwith debts and claims?

A: As noted in Chapter VII, a personalrepresentative should be cautious in paying debtsand claims against the estate. If the estate isinsolvent so that available assets cannot fullysatisfy all debts and claims, they must be paid inthe order of priority set out in Chapter VII. Failureto do so could cause the personal representativeto be liable to a creditor who should have beenpaid.

If the estate is solvent, personal liability of thepersonal representative could arise if, after allassets have been distributed, a debt or claim

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CHAPTER IX: RESPONSIBILITIES, POWERS AND RIGHTSOF THE PERSONAL REPRESENTATIVE

becomes known and funds are no longeravailable to pay it. This potential threat iseliminated if the personal representative obtainsan Order of Distribution from the court, discussedbelow. The process of obtaining an Order ofDistribution involves a Debts and Demandshearing and a Show Cause motion and order.

Q: What is a Debts and Demands proceeding?

A: The greatest protection against personalliability is granted to the personal representativewhen the personal representative obtains anOrder of Distribution from the court (see thediscussion below). The first step in this procedureis a Debts and Demands hearing.

The procedure for a Debts and Demands hearingis as follows:

The personal representative requests theCommissioner of Accounts to establish a time andplace for creditors or those having claims againstthe estate to appear and file their claims. TheCommissioner of Accounts publishes a notice in thelocal newspaper and posts a notice of the hearingat the courthouse where the personal representativequalified. The personal representative must notifycreditors if any of the debts known to the personalrepresentative are contested. Claims are presentedto the Commissioner in an informal manner.Following the hearing the Commissioner will makea report of the debts and demands that theCommissioner finds to have been sufficientlyproved.

Q: What is a Show Cause motion and order?

A: If six months from the date of qualificationhave passed, an accounting has been filed by thepersonal representative and the Commissioner’sreport of the Debts and Demands hearing hasbeen filed in the Clerk’s Office, the personalrepresentative may ask the court to issue an orderrequiring all creditors or those having claimsagainst the estate to show why payment anddelivery of the estate to the estate’s beneficiariesshould not be made. The Show Cause order ispublished in the local newspaper and requirescreditors to appear in court on a certain day tostate their objections, if there are any, to thepersonal representative distributing the estate. Ifthere are no objections, the court will enter anOrder of Distribution. Personal representativeswho make distributions in reliance upon thisorder are fully protected against both creditorsand those to whom distribution in accordancewith the order has been made. In somejurisdictions in Virginia, the Order of Distributionactually names the distributees or legatees towhom distribution is authorized.

Q: Must there be a final Order of Distributionbefore the personal representative can close theestate?

A: There is no requirement that an Order ofDistribution be obtained before the estate can besettled. However, as was mentioned previously, thisprocedure provides the personal representative thegreatest degree of protection in the distribution ofan estate.

CHAPTER IX: RESPONSIBILITIES, POWERS AND RIGHTSOF THE PERSONAL REPRESENTATIVE

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Q: What happens to the property in the estate ifa person dies without a will?

A: A person who dies without a valid will is saidto die “intestate.” When there is no will, thedecedent’s property passes to family membersunder a plan set out by law in each state.

These laws vary considerably from state to state,and which law applies generally depends uponwhere the decedent had his or her legal residenceat the time of death. (However, real estate passesaccording to the laws of the state in which it islocated, regardless of where its deceased ownerlived.)

In Virginia, if a person dies intestate but survivedby a spouse, the widow or widower is entitled tothe entire estate passing by intestacy, unless thedecedent had any children who are not also thechildren (by birth or adoption) of the survivingspouse. If the decedent had children (usually ofa prior marriage) who are not also the childrenof the widow or widower, the spouse and thedecedent’s children divide the estate, with thespouse taking one-third, and all of the decedent’schildren sharing the other two-thirds.

Example 1. Harold dies intestate, survived by hiswife, Wanda, and their two children, Alice andBernard. Wanda inherits Harold’s entire estate.

Example 2. Herbert dies intestate, survived byhis second wife, Winifred, and by Adelbert(Herbert’s son by his first marriage) and Beulah(the daughter of Herbert and Winifred). Winifredinherits one-third of Herbert’s estate; Adelbertand Beulah divide the other two-thirds betweenthem.

CHAPTER X

Estates of DecedentsWho Die Without a Will

If a person is not married when he or she diesbut has children, the children or otherdescendants of the decedent generally inherit theentire estate. If there is no spouse or descendantsurviving, the decedent’s parents (or parent)surviving inherit the property. If there are noparents living, the chain of relations in line toinherit the estate grows more remote (to includebrothers and sisters, then nieces and nephews,then grandparents and their descendants) untilat some point, the Commonwealth is entitled tothe estate.

Q: Who administers the estate if there is no will?

A: If there is no will, then most likely thedecedent did not properly select a personalrepresentative to administer the estate. In thiscase, it is up to the Circuit Court in the county orindependent city where the decedent lived todecide who will become personal representative.

During the first thirty days following theintestate’s death, the Clerk may grantadministration to the person who is entitled toinherit the estate, or if there is more than oneperson entitled to inherit, then to any one of themwho obtains a waiver of the right to qualify fromall the others entitled. After the first thirty days,the Clerk may appoint the first person whoappears who is entitled to inherit a portion of theestate, unless others had also notified the Clerkof an intent to qualify. In that case, the Clerk willgive all an opportunity to be heard. After sixtydays, the Clerk may allow a creditor of the estateto qualify as personal representative. The Clerkmay refuse to appoint any one who fails to satisfythe Clerk of his suitability and competence toserve.

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Q: How is the estate administered if there is nowill?

A: The administration of the estate of an intestatefollows closely along the lines of that of an estateunder will, with all of the same requirements forfiling the Inventory, Accounts, and tax returns.The personal representative collects the estateassets, pays its debts and expenses, and finallydistributes the estate to the heirs.

One important difference, however, is that if thereis no will, the decedent could not waive the legalrequirement of a surety bond on the personalrepresentative, which may cause the estate toincur the additional expense of a surety premiumin order to have a personal representativeappointed. Another difference is that personalrepresentatives are usually granted certainpowers under the will to transact estate business,such as selling real estate, which the personalrepresentative of an intestate cannot do withoutmaking special application to the court.

CHAPTER X: ESTATES OF DECEDENTS WHO DIE WITHOUT A WILL

Q: Is administration of an intestate’s estatealways necessary?

A: Many people who die without a will actuallyhave little or no property that would be subjectto the laws of intestate succession. This is becausemany assets pass at death by virtue of co-ownership titling (as, for example, joint tenantswith right of survivorship), or by beneficiarydesignation (as in a life insurance policy orpension plan benefit). Care should be exercisedto determine whether assets will pass bysurvivorship or beneficiary designation beforeassuming that formal administration of an estateis required. See Chapters VI and XI generally,for assets that pass without the need foradministration.

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Q: What does it mean when property is “jointly”owned, and what becomes of the property whenone of the owners dies?

A: In Virginia, joint ownership can take three forms:tenancy in common, joint tenancy with right ofsurvivorship, and tenancy by the entirety. Thereare significant differences among them.

A tenancy in common is a simple co-ownershipin either real or personal property, between twoor more persons. The shares may be equal orunequal. When one of the co-owners dies, theinterest passes as part of his or her estate, eitherunder will or by the laws of intestate succession.

A joint tenancy with right of survivorship canalso exist between any number of persons, but itis usually seen with only two (or three at most).All co-owners’ interests must be equal, and whenone of them dies, his or her interest passes to thesurviving joint owner or owners equally,regardless of what the decedent’s will may say.

A tenancy by the entirety is very much like a jointtenancy with right of survivorship, except thatthere can be only two co-owners, and they mustbe legally married to each other. This is by farthe most common way for married couples toown real estate in Virginia. In the event of divorce,the form of ownership automatically converts toa tenancy in common. When one of the tenantsby the entirety dies, his or her interest passes tothe surviving spouse, regardless of what thedecedent’s will may say.

Q: How do you tell which form of co-ownershipthe decedent had?

A: For real estate, check the deed that transferredthe property to the decedent. If the deed forproperty in Virginia says only “joint tenants” then

the ownership is a co-tenancy and there is no rightof survivorship.

For a bank account, ask to see a copy of thesignature card; the title on the bank statementdoes not usually provide enough information.The signature card may spell out precisely the formof co-ownership: it may be marked “withsurvivorship” or “without survivorship.” Unlessthere is clear and convincing evidence showing adifferent intention, the balance in a joint bankaccount belongs to the surviving party.

For securities held in certificate form, the form ofco-ownership will be stated on the certificate. Besure to look on the back of the certificate for anexplanation of any abbreviations used on thefront.

For securities held in a brokerage account, ask tosee a copy of the paperwork that was completedwhen the account was opened.

Q: How is real estate handled in the estate of adecedent?

A: Much real estate in Virginia, especially familyresidences, is owned as tenants by the entirety oras joint tenants with right of survivorship, sowhen one of the owners dies, the surviving jointowner(s) automatically acquire the decedent'sshare. The decedent's estate does not control thisproperty.

If a decedent owned real property in his or hersole name or as a tenant in common (or is thesole surviving owner of survivorship property),the real estate passes as part of the estate, but isusually accorded special handling. It is generallynot supposed to be sold unless necessary to paycreditors or expenses of administration, or unlessthe decedent directed the sale in the will. It cannot

CHAPTER XI

Special Assets

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be sold by the personal representative unlessauthority to sell was given under the will, or bythe court.

Q: What about life insurance?

A: Life insurance benefits are payable at the deathof an insured according to the terms of thecontract that the owner of the policy had withthe insurance company.

Most often, the insured was the owner of thepolicy, and had the right to select a beneficiaryor beneficiaries of the policy proceeds. Usually,this is the widow or widower or the decedent’schildren, but it may be the estate, or a trust thatthe decedent set up during life.

If the beneficiary is an individual, the policyproceeds pass outside of the will or intestateestate, directly to the beneficiary. If the policy ispayable to the insured's estate, it falls under thecontrol of the personal representative and isdistributed under the terms of the decedent’s willor the laws of intestacy.

If life insurance is payable to a trust (discussedlater in this Chapter), the proceeds go directly tothe trust without passing through the estate. Thetrustee then manages and distributes theproceeds as part of the trust assets according tothe terms of the trust agreement.

Life insurance benefits are not usually subject toincome taxes, but may be subject to estate taxes.(See Chapter VIII.)

Q: What happens to United States Savings Bonds?

A: United States savings bonds are commonlyfound in estates. Information on the procedurefor redeeming or cashing in the bonds can beobtained by calling the closest Federal ReserveBank. There is also a very helpful website withforms and instructions for transferring ownershipor redeeming bonds: www.savingsbonds.gov.

CHAPTER XI: SPECIAL ASSETS

Local banks may also be able to assist in determiningthe value of the bonds and the requirements forredemption.

Savings bonds are often held in survivorship form,or with a pay on death (P.O.D.) designation. In thesecases, their ownership passes directly to thesuccessor owner rather than under the will or byintestacy.

Care should be taken to determine the properincome tax treatment of savings bonds. The taxtreatment varies with the type of bond held.Remember that the decedent may have deferredrecognizing the interest on the bonds for incometax purposes. The deferred interest may generatea substantial amount of income tax.

Q: Are pension plan accounts part of the estate?

A: Because they are paid to a beneficiary directly,pension plan benefits are not usually subject tothe personal representative’s administration.

If there is a survivor benefit under a pension plan(including profit-sharing and thrift plans), thebenefits are almost always paid to a namedbeneficiary. The amount and rate are determinedby the plan, often under a formula. They may bepaid in a lump sum, or over several years, or asan annuity. The beneficiary may have some choiceover how the benefits are paid.

When benefits are due from a qualified retirementplan (meaning that the plan qualified for certainfavorable tax treatment for itself and thesponsoring employer), they must be payable tothe surviving spouse, if there is one, unless thesurviving spouse consented to have them paidto someone else. Pension plan benefits aregenerally taxable income as they are received bythe beneficiary. If the beneficiary is the survivingspouse, however, he or she may withdraw a lumpsum and deposit it in an individual retirementaccount, to defer the income taxes until a laterdate.

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Q: Are individual retirement accounts (IRAs)treated like pension plans?

A: Individual retirement plans are treated likepension plans in some ways, while in others, theyare quite different. While IRAs are commonlypayable directly to a spouse or child, it is notunusual to see an IRA pass through an estaterather than by beneficiary designation.

Unlike a qualified pension plan, there is no legalrequirement for an IRA to go to the survivingspouse, but if the surviving spouse does receivethe account, he or she may roll it over into anotherIRA and continue the benefits of income taxdeferral.

Q: What about Social Security survivor benefits?

A: Social Security survivor benefits are notsubject to estate administration nor to estate tax.

Q: What if the decedent established a “livingtrust”?

A: It is increasingly popular for people toestablish a trust during lifetime, transfer all ormost of their assets to it, but retain the benefitand control of the assets for the rest of their life.This is commonly referred to as a living trust.

When the creator of the trust dies, the assets inthe trust, including any assets that are designatedto pass to the trust at the creator’s death, aredistributed or held in continued trust by asuccessor trustee, according to the terms of thetrust agreement. The provisions in such a trustcannot be changed after the creator of the trustdies.

The trust assets do not usually come under thecontrol of the estate’s personal representative andare not affected by the terms of the decedent’swill or the laws of intestate succession. Propertypassing from the trust at death does not gothrough probate. It is this feature of probateavoidance that has helped most to boost thepopularity of living trusts. However, it is

important to remember that assets in living trustsare still fully subject to estate taxes just as if notrust existed. The named trustee under the livingtrust will have responsibilities similar to those ofan executor in preserving the trust assets anddistributing them as provided in the trust.

Q: What about a trust set up in the will?

A: The decedent’s will may direct that a trust beestablished for the management of some or all ofthe assets of the estate. This is referred to as atestamentary trust, and is often used to manageassets for children after the death of their parents.In this case, the trust is an entity separate fromthe estate, and comes into existence when thepersonal representative distributes assets to thetestamentary trustee to fund the trust. The personnamed as trustee under a will has responsibilitiessimilar to those of the personal representative,but the trustee’s authority is limited to the assetsthat become a part of the trust, whereas theauthority of the personal representative extendsto all assets passing by the will, until distributed.The testamentary trustee has to appear before theClerk and receive a certificate of qualification inorder to act.

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CHAPTER XI: SPECIAL ASSETS

CHAPTER XII

Q: Is the executor or administrator entitled to afee?

A: Yes. The Virginia statute governing compensationof fiduciaries provides that a fiduciary is to be paidfor reasonable expenses incurred by him or her andalso, unless fixed by agreement or otherwise,reasonable compensation for the work that is done.If the will makes no provision for compensation,or if there is no will, then the compensation mustbe reasonable. If the will provides a specificmethod for calculating fees, or a specific amountor percentage, then the fee will be set based onthat provision in the will.

What is “reasonable” has been the subject ofmany Virginia court cases. A customary rulepreviously followed in many jurisdictions is 5%of the value of the receipts, but this is subject toincrease or decrease based on the circumstancesat hand. The personal representative should havereceipts for all expenses for which reimbursement

Compensation and Reimbursementof the Personal Representative

is requested and should keep track of the timeexpended and the tasks performed. If an attorneyassists with the administration of the estate, theattorney's fees to the estate may reduce thepersonal representative’s fee, because theattorney may be fulfilling some of the personalrepresentative’s work and responsibilities.Generally, legal fees paid for preparation of taxreturns, handling any litigation related to theestate, preparation of motions and orders, andadvice and counsel to the fiduciary in how tocarry out responsibilities do not reduce thefiduciary's commission. The fee is subject toapproval by the Commissioner of Accounts andit is advisable to discuss the fee with theCommissioner prior to taking it and spending it.The Commissioner of Accounts may makeavailable information designed to guide thepersonal representative in calculating areasonable fee for services. The fee is taxableincome to the personal representative.

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Q: Where can the executor or administrator obtainhelp in administering an estate?

A: The personal representative of an estate isentitled to seek assistance from attorneys,accountants, banks or trust companies, investmentadvisors, brokers, and any other advisors whocan help with the administration of the estate, theinvestment, management and sale of the assets,the preparation and filing of tax returns, and thepreparation and filing of the Inventory andAccountings required to be filed with theCommissioner of Accounts. In addition, the Clerkin charge of probate usually distributes writteninstructions at the time of qualification, TheCommissioner of Accounts assigned to overseeadministration of the estate may be available toanswer certain questions, but neither the Clerknor the Commissioner will provide individuallegal or tax advice.

The responsibility of proper administration restswith the personal representative who may avoidcostly errors by seeking the guidance and helpof a lawyer or other advisor early in the probateprocess.

CHAPTER XIII

Advisors

Q: What other information is needed to administeran estate in Virginia?

A: There are more than 200 sections in theVirginia Code which deal with the administrationof estates, the interpretation of wills, theresponsibilities of the personal representative andother issues affecting estates. Please seek furtheradvice if you have specific questions.

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Q: Is the executor or administrator permitted tobuy assets from the estate or borrow from theestate?

A: The executor or administrator acts in aposition of trust and responsibility with respectto estate property in which other persons mayhave an interest. The personal representativeshould not benefit personally from his or her roleas executor or administrator and should notdistribute any assets in any fashion that gives thepersonal representative a financial advantageover the other beneficiaries or the persons who

CHAPTER XIV

Conflicts of Interest

have claims against the estate. Unless thepersonal representative is also the onlybeneficiary of the estate and there are no unpaiddebts against the estate, he or she should not lendestate monies to himself or herself or to anybusiness in which he or she has an interest. Apersonal representative who wishes to purchaseassets from the estate should first determinewhether all other beneficiaries will consent,obtain an independent appraisal of the assets tobe purchased, and then consult with a lawyerbefore going any further. Such transactions arerisky and may be overturned by a court.

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CHAPTER XV

An Estate Administration Checklist

Q: How can the personal representative keep track of all the filing deadlines?

A: Use the following checklist to assist in keeping track of various filing dates for reports to theCommissioner of Accounts and to the taxing authorities.

An Estate Administration Checklist

Name of Date ofDecedent: _______________________________________ Death: __________________________

Decedent's Social Security No.: ___________________________________________________________

Name of Personal Representative: ________________________________________________________

Date of Probate: ________________________________

Date of Qualification: ________________________________

Tax Year for Estate Ends: ________________________________

Estate Federal ID Number Applied for: ________________________________(Use Form SS-4)

Notice of Probate: ________________________________(30 days from qualification or probate)

Notice Affidavit to Clerk's Office: ________________________________(4 months from qualification or probate)

Spouse's Elective Share Deadline: ________________________________(6 months from date of probateor qualification of administrator, unless extended)

Inventory Due: ________________________________(4 months from qualification)

Decedent's Final Federal Income Tax Return Due: ________________________________(April 15 - IRS Form 1040)

(over)

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Decedent's Final State Income Tax Return Due: ________________________________(May 1 - Va. Form 760)

Decedent's Final Gift Tax Return Due: ________________________________(April 15)

Estate Tax Returns Due: ________________________________(9 months from date of death)

First Federal Fiduciary Income Tax Return Due: ________________________________(15th day of 4th month after tax yearof estate ends - IRS Form 1041)

Subsequent Federal Fiduciary Income TaxReturns Due (Month/Day): ________________________________(15th day of 4th month after tax year ends)

First Virginia Fiduciary Income Tax Return Due: ________________________________

Subsequent State Fiduciary Income TaxReturns Due (Month/Day): ________________________________(Va Form 770)

First Annual Accounting Due: ________________________________(16 months from date of qualificationto cover first 12 months)

Subsequent Annual Accountings Due (Month/Day): ________________________________(4 months after end of accounting year)

Final Federal Fiduciary Income Tax Return Filed: ________________________________

Debts and Demands Proceedings (circle one) Yes/NoRequest Proceeding: ____________________Notice of Hearing Published: ____________________Hearing on Debts and Demands: ____________________Commissioner Files Debts andDemands Report with Court: ____________________Prepare Show Cause Motion and Orderand Send to Circuit Court: ____________________Date of hearing to Enter Show Cause Order: ____________________Publish Order in Newspaper: ____________________

Prepare and Present Order of Distributionfor Judge's Signature: ____________________

Distribute remaining property in estate: ________________________________

An Estate Administration Checklist

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