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Testate. If a decedent dies testate (with a will) the clerk qualifies the personal representative as the "executor" of the estate.
Intestate. If a decedent dies intestate (without a will) the clerk qualifies the personal representative as "administrator" of the estate.
Administrator With Will Annexed. In cases where there is a will, but no executor was named in the will, or an executor is named in the will but refuses to serve or fails to give bond when required, or if an executor qualifies, but then dies, resigns or is removed, the court or the clerk may grant administration of the estate to a person who is a beneficiary under the will, or his designee, or if no such person qualifies within 30 days, then to a person who would have been entitled to administer the estate if there had been no will. A person qualifying under such circumstances is appointed as "administrator with the will annexed," also referred to as "administrator c.t.a.," the three letters being an abbreviation of the latin phrase cum testamento annexo, meaning with the will annexed.
Place for Qualification. The personal representative must qualify in the Circuit Court located in the City or County where the decedent resided at the time of his death, or, if the decedent did not reside in Virginia at the time of his death, where the decedent owned real estate, or other assets estate assets in Virginia.
Who May Qualify. The personal representative must be an adult (age 18 or older) and must be able to obtain surety on their bond, if required.
A personal representative my be a nonresident of Virginia, but surety is required on the bond of a non-resident personal representative, unless a resident co-fiduciary is appointed.
The Clerk must also be satisfied that the person seeking qualification is suitable and competent to perform the duties of his or her office.
Preferred Person for Qualification. If the decedent had a will, the person(s) named as personal representative(s) in the will are normally appointed.
For intestate decedents (without a will) the law provides certain preferences within certain time frames. Generally, during the first 30 days after the decedent's death, a sole distributee of the estate, or his or her designee, has preference. After 30 days, the first distributee who applies for qualification, or his designee has preference. After 60 days the clerk may grant administration to one of more creditors of the decedent, or any other person, provided that it can be shown that appropriate efforts were made to locate the preferred parties.
Factual Information. At time of qualification, the clerk will require information about the person seeking qualification, about the decedent, an estimate of the value of assets of the decedent's estate, a list of the decedent's heirs at law, and other information.
The clerk will also require proof of death of the decedent in the form of a death certificate or possibly an obituary published in a newspaper, if a death certificate has not yet been obtained.
Oath and Bond. The personal representative will be required to give their oath that he or she will faithfully perform the duties of their office to the best of their judgment, and if a will is probated, that the writing is the true last will of the decedent.
The personal representative will be required to give their bond in writing to secure their oath to property perform their duties, with penalty in a monetary amount at least equal to the value of the personal estate of the decedent, and if there is a will that authorizes sale of real property, the bond amount must include the value of the real property.
Surety. Unless surety on the personal representative's bond is waived by will, corporate surety will be required (normally issued by an insurance company) to secure the bond. There are limited exceptions for banks, very small estates, and cases where all the beneficiaries of the residuary estate are also personal representatives.
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