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Fiduciary Qualification
Fiduciary Duties & Liability

Virginia Estate Law - Qualification

What is Qualification?
Is Qualification Necessary?
Virginia Qualification Procedure
Fiduciary Duties & Liability
List of Heirs
Notice of Probate

Handling the administration of a decedent's estate can be a significant undertaking. The personal representative must have a clear understanding of their powers and duties, and failure to properly perform such duties can result in personal liability for the personal representative.

The powers and duties of a personal representative must be determined from the will, if there is a will, and under the law.

If the decedent died with a will, it is a primary duty of the executor to carry out the wishes of the testator. If there is no will, the administrator must distribute the decedent's estate in accordance with applicable law.

The personal representative has an obligation to act with the highest degree of fidelity and good faith in the administration of an estate. Failure to act in good faith, self dealing or acting negligently in the performance duties can result in personal liability.

A personal representative is charged with gathering and taking possession and control of the assets of the estate, protecting and prudently investing those assets during administration, identifying and paying enforceable debts and obligations of the decedent, determining and paying taxes related to the decedent and the estate assets, properly distributing the remaining assets of the estate to the proper heirs or beneficiaries of the decedent, and accounting to the court regarding the handling and distribution of the estate assets.

Under the law, a personal representative is vested with ownership of the personal property of the decedent for the purpose of administering the estate. If the decedent died with a will, the will may also grant certain specific powers to the executor by incorporating in the will the powers set forth in Section 64.1-57 of the Code of Virginia, which includes the power to sell real estate.

If a decedent dies without a will, the administrator will have no power to sell real estate and the administrator's power and duties will relate only to the administration of the personal property of the decedent.

As discussed in the next chapter, Personal representatives have the duty to maintain accurate records regarding all transactions related to estate assets and, must account to the court regarding their investment, disbursement and distribution of all assets of the decedent's estate.

Personal representatives must normally invest income producing assets within four months of qualification and follow the prudent investor rules adopted under Virginia law in handling such investments, unless contrary provision is provided by the testator's will.

It is of vital importance for a personal representative to clearly understand their authority, powers and duties when handling the administration of an estate. Obtaining professional guidance in these areas is highly recommended.

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