Fairfax, VA Probate Blog

Bond & Surety Statutes

Mon, 02 Mar 2015 06:00:00 GMT

§ 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.

When is a Gift an Advancement of Inheritance?

Mon, 23 Feb 2015 16:14:00 GMT

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.

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

Mon, 23 Feb 2015 16:09:00 GMT

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 become a part of the residue; and

If the residue is devised or bequeathed to two or more persons and the share of one fails for any reason, such share shall pass to the other residuary devisees or legatees in proportion to their interests in the residue.

Notwithstanding the provisions of §§ 64.2-2604 and 64.2-2605 and unless a contrary intention appears in the Will, if a testator makes a bequest, not exceeding the value of $100, to a legatee and such legatee refuses to take possession of such bequest, then the bequest shall fail and becomes a part of the residue of the testator's estate.

However, if the bequest was for money (legacy >$100) or it was a devise (for land), then said distribution may not fail. It may pass to the descendants of the beneficiary if the beneficiary was the decedent’s grandparent or a descendant of such grandparent

Virginia Code § 64.2-418
Unless a contrary intention appears in the Will, if a devisee or legatee, including a devisee or legatee under a class gift, is (i) a grandparent or a descendant of a grandparent of the testator and (ii) dead at the time of execution of the Will or dead at the time of testator's death, the children and the descendants of deceased children of the deceased devisee or legatee who survive the testator take in the place of the deceased devisee or legatee. The portion of the testator's estate that the deceased devisee or legatee was to take shall be divided into as many equal shares as there are (a) surviving descendants in the closest degree of kinship to the deceased devisee or legatee and (b) deceased descendants, if any, in the same degree of kinship to the deceased devisee or legatee who left descendants surviving at the time of the testator's death. One share shall pass to each such surviving descendant and one share shall pass per stirpes to such descendants of deceased descendants.

Will Construction: Specific Exceptions to Adeemed Property in Virginia

Mon, 23 Feb 2015 15:42:00 GMT

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.

Unless a contrary intention appears in the will:

Bequest of Specific Securities
A bequest of specific securities, whether or not expressed in number of shares, shall include as much of the bequeathed securities as is part of the estate at the time of the testator's death, any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity, excluding any securities acquired by the exercise of purchase options, and any securities of another entity acquired with respect to the specific securities mentioned in the bequest as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;

Property Subsequently Condemned
A bequest or devise of specific property shall include the amount of any condemnation award for the taking of the property which remains unpaid at death and any proceeds unpaid at death on fire and casualty insurance on the property; and

Property Disposed of When the Decedent Incapacitated
A bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is under a disability, was sold by a conservator, guardian, or committee for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the conservator, guardian, or committee for the testator. For purposes of this subdivision, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision 2. This subdivision shall not apply if, after the sale or casualty, it is adjudicated that the disability of the testator had ceased and the testator survived the adjudication by one year.

Property Disposed of by a Attorney in Fact Under a Power of Attorney
Unless a contrary intention appears in a testator's will or durable power of attorney, a bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is incapacitated, was sold by an agent acting within the authority of a durable power of attorney for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the agent. For purposes of this subsection, (i) the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2, (ii) no adjudication of the testator's incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator. This subsection shall not apply (a) if the agent's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the testator or (b) to a power of attorney limited to one or more specific purposes.

Leasehold & Freehold Estates
Unless a contrary intention appears in the will, a devise that would describe a leasehold estate, if the testator had no freehold estate that could be described by the devise, shall be construed to include such a leasehold estate.

Note: ”Incapacitated" means impairment by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

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

Mon, 23 Feb 2015 15:21:00 GMT

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 .

The Executor should look to the terms of the Will and apply those terms to the then existing property.

I.e, Decedent executed his Will on 1/1/1990 with 2 parcels of real property. The Decedent died on 1/1/2014 with 5 parcels of real property. The Decedent’s Will leaves “all his real property to his eldest son”.

It doesn’t matter what real property the decedent owned or didn’t own on the day that he executed his Will. What matters is that “all his real property should pass to his son” and the concept of what all his “real property” is shall be determined based upon the real property the decedent owned as of the date of death.

But what happens if a Decedent’s Will bequest’s or devises property that no longer is in the Probate Estate?

Except for an act that results in the revocation of a Will pursuant to Article 64.2 of the Virginia Code, any conveyance or other act done subsequent to the execution of a Will shall not prevent the operation of the Will with respect to such interest in the estate as the testator may have power to dispose of by Will at the time of his death.

I.e., Decedent leaves his Residence at 1401 Elm Street to his only son. At his death, the decedent didn’t own 1401 Elm Street (he sold it 5 years prior while not under a disability). The devise may fail but the remaining provisions of the Will are still valid.

A Will’s generally is not revoked merely because the decedent had a bequest devising property the decedent already disposed of or never owned.

Note: Property may be deemed to have Adeemed or may be deemed to still exist (even in partially) depending on the circumstances. The key to this blog is to show that, unless specifically provided, the absence of the property in the decedent's probate estate doesn't necessarily revoke the Will.

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

Mon, 23 Feb 2015 14:54:00 GMT

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.

Property prevented from passing to a former spouse because of revocation pursuant to this section shall pass as if the former spouse failed to survive the testator. Provisions of a will conferring a power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator.

If the provisions of the will are revoked solely pursuant to this section, and there is no subsequent will or inconsistent codicil, the provisions shall be revived upon the testator's remarriage to the former spouse.

Probating a Will With A Separate or Legal List

Mon, 23 Feb 2015 14:43:00 GMT

A Last Will & Testament may reference a separate list that expressly bequests tangible personal property (not real property and not intangible personal property). Such a list is often called a Legal List. Its critical that an Executor identify whether the decedent died with or without a Legal List to protect the Executor from liability during the probate process.

A Legal List can be a great tool to dispose of said personal property because, in order to expressly bequest said items, the decedent would have to hire an attorney each time a change is to be made. That can be costly. Also, when new assets are acquired, in order to bequest said items, an attorney would need to have been retained to change the Will.

However, 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.

How a Legal List Works?

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.

The written statement or list may be (i) referred to as one that is in existence at the time of the testator's death, (ii) prepared before or after the execution of the will, (iii) altered by the testator at any time, and (iv) a writing that has no significance apart from its effect on the dispositions made by the will. When distribution is made pursuant to such a written statement or list, a copy thereof shall be furnished to the commissioner of accounts along with the legatee's receipt.

A personal representative shall not be liable for any distribution of tangible personal property to the apparent legatee under the testator's will made without actual knowledge of the existence of a written statement or list, nor shall he have any duty to recover property so distributed. However, a person named to receive certain tangible personal property in a written statement or list that is effective under this section may recover that property, or its value if the property cannot be recovered, from an apparent legatee to whom it has been distributed in an action brought for that purpose within one year after the probate of the testator's will.

Probate 101: Was the Will Executed Properly?

Mon, 23 Feb 2015 14:12:00 GMT

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.

The most difficult document to execute properly is a Last Will & Testament. Because Wills may pass a lifetime of earnings to a person's most cherished loved ones, it is also one of the most important. Amazingly, many people fail to execute a Last Will & Testament or fail to hire an attorney to draft the Will.

If you have a Will executed from a form book, or online, you should have the Will reviewed by an attorney before beginning the probate process. Below kindly find the basic requirements for executing a Will in Virginia.

Last Will & Testament Execution Requirements

No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator's presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.

Holographic Wills

A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.

Non-Holographic Wills

A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is (i) acknowledged by the testator, (ii) in the presence of at least two competent witnesses, (iii) who are present at the same time and (iv) who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.

Failure to duly execute a Last Will & Testament in accordance with the aforementioned requirements may result in the Will being invalid. Sometimes a Will that fails to satisfy the requirements may be saved, but the costs in doing so may be exorbitant.

Paying Debts & Creditors for Insolvent Estates in Virginia

Mon, 23 Feb 2015 12:56:00 GMT

§ 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.

Probate Funeral Expenses

Mon, 23 Feb 2015 12:40:00 GMT

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

I.e, subject to the provisions of § 64.2-528 (order for paying debts in an insolvent estate), reasonable funeral and burial expenses of a decedent shall be considered an obligation of the decedent's estate, which shall be liable for such expenses to (i) the funeral establishment, (ii) the cemetery, (iii) any third-party creditor who finances the payment of such expenses, or (iv) any person authorized to make arrangements for the funeral of the decedent who has paid such expenses.

A person who is authorized to make arrangements for the funeral of the decedent shall have the authority to bind the decedent's estate for such expenses and may execute, on behalf of the estate, any necessary instruments.

Some Questions Naturally Arise

What does it mean to be authorized to make "Funeral Expenses"?

What are "reasonable Funeral Expenses" and how much is reasonable to spend?

What happens if a person who makes funeral arrangements isn't authorized or makes expenditures that are not reasonable funeral expenses?

What liability does an executor have for refunding funeral expenses that are not made by an authorized party or are unreasonable?

Have questions, give us a call and speak to a probate attorney.