Fairfax, VA Probate Blog

Monday, March 2, 2015

Bond & Surety Statutes

§ 64.2-503. Oath and bond of administrator of intestate estate.

An administrator of an intestate estate shall give bond and take an oath that the decedent has left no will, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. Such oath may be taken on behalf of a corporation by its president, a vice-president, secretary, treasurer, or trust officer.

§ 64.2-504. Bond of executor or administrator.

A. Except as provided in subsection B, every bond of an executor or administrator shall be, at least, in an amount equal to (i) the full value of the personal estate of the decedent to be administered, or (ii) if the wil authorizes the executor or administrator to sell real estate, or receive the rents and profits thereof, the full value of the personal estate and such real estate, or the rents and profits thereof, as the case may be.

B. Upon the request of an executor or administrator, the clerk shall redetermine the amount of the bond in light of any reduction in the current market value of the estate in the executor's or administrator's possession or subject to his power, whether such reduction is due to disbursements, distributions, or valuation of assets, if such reduction is reflected in an accounting that has been confirmed by the court or an inventory that has been approved by the commissioner of accounts and recorded in the clerk's office. This provision shall not apply to any bond set by the court.

§ 64.2-505. When security not required.

A. The court or clerk shall require a personal representative to furnish security. However, the court or clerk shall not require a personal representative to furnish security if:

1. All distributees of a decedent's estate or all beneficiaries under the decedent's will are personal representatives of that decedent's estate, whether serving alone or with others who are not distributees or beneficiaries; however, if all personal representatives of a testate decedent are entitled to file a statement in lieu of an accounting under § 64.2-1314, the security shall be required only upon the portion of their bond given in connection with the property passing to beneficiaries who are not personal representatives; or

2. The will waives security of an executor nominated therein.

B. Notwithstanding subsection A, upon the motion of a legatee, devisee, or distributee of an estate, or any person who has a pecuniary interest in an estate, or upon motion of the court or clerk, the personal representative may be required to furnish security. A copy of such motion shall be served upon the personal representative. The court shall conduct a hearing on the motion and may require the personal representative to furnish security in an amount it deems sufficient and may award the movant reasonable attorney fees and costs which shall be paid out of the estate.

C. This section shall be deemed to permit qualification without security where the personal representative is the only distributee or only beneficiary by virtue of one or more instruments of disclaimer filed prior to, or at the time of, such personal representative's qualification.

Monday, February 23, 2015

When is a Gift an Advancement of Inheritance?

Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.

Monday, February 23, 2015

What Happen If Beneficiary of a Devise or Bequest Pre-deceased the Decedent?

Unless a contrary intention appears in the Will, and except as provided in § 64.2-418,

If a devise or bequest other than a residuary devise or bequest fails for any reason, it shall

Read more . . .

Monday, February 23, 2015

Will Construction: Specific Exceptions to Adeemed Property in Virginia

Every Executor of a probate estate has to review each Will’s specific bequest and devise carefully. Does the asset specifically bequeathed still exist in the estate as described in the Will?

If not, the property may, to a certain extent, be construed by the Court to be in existence and the Executor may be required to make a distribution the Executor mistakenly believed is no longer enforceable. And Executor should never assume the property has been Adeemed or else the Executor may be liable.
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Monday, February 23, 2015

Will Construction: Property Determined at Death (A Will Speaks at Death)

A Will shall be construed, with reference to the real and personal estate comprised in the probate estate, to speak and take effect as if it had been executed immediately before the death of the testator (or decedent), unless a contrary intention shall appear by the Will.

Consequently, when the Executor is reviewing the probate assets to be distributed in accordance with the Will’s provision, unless otherwise provided in the Will, generally what assets the decedent had when the Will was executed is not relevant to determining what assets a beneficiary receives.
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Monday, February 23, 2015

Will Construction: Effect of Divorce, Annulment & Remarriage on Will

If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Unless the will expressly provides otherwise, any provision conferring a general or special power of appointment on the former spouse or nominating the former spouse as executor, trustee, conservator, or guardian is also revoked.
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Monday, February 23, 2015

Probating a Will With A Separate or Legal List

An Executor that fails to make distributions in accordance with the decedent's legal list may be liable for failing to do so if the Executor had knowledge that the legal list existed and provided for a different distribution. On the other hand, if the Executor makes a distribution in accordance with a legal list that is not valid then the Executor may be liable for the distribution. 

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Monday, February 23, 2015

Probate 101: Was the Will Executed Properly?

If you are an Executor and you have a Will that you believe is invalid or otherwise questionable, please contact a probate and estate administration attorney ASAP. Its critical, if possible, to contact the attorney before communicating with the probate clerk or the court. Otherwise, you may create an unnecessary and expensive problem.
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Monday, February 23, 2015

Paying Debts & Creditors for Insolvent Estates in Virginia

§ 64.2-528. Order in which debts and demands of decedents to be paid.

 When the assets of the decedent in his personal representative's possession are not sufficient to satisfy all debts and demands against him, they shall be applied to the payment of such debts and demands in the following order:

1. Costs and expenses of administration;


2. The allowances provided in Article 2 (§ 64.2-309 et seq.) of Chapter 3;


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


4. Debts and taxes with preference under federal law;


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


6. Debts and taxes due the Commonwealth;


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


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


9. All other claims.


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

Monday, February 23, 2015

Probate Funeral Expenses

Funeral Expenses (reasonable Funeral Expenses) are an obligation of the deceased person's estate in Virginia. However, some rules do apply.
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Monday, February 23, 2015

Bond & Surety: Failure of Executor to be Bonded?

If an Executor cannot obtain required “Surety” then that Executor will not be appointed by the court and another person will be required to be appointed.

Read more . . .

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