What is Qualification?

Is Qualification Necessary?

Virginia Qualification Procedure

Fiduciary Duties & Liability

List of Heirs

Notice of Probate

Testate. If the decedent died testate (with a will) the clerk qualifies personal representative as the "executor" of the estate.

Intestate. If the decedent died intestate (without a will) the clerk qualfies 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 if all of the executor(s) named in the will refuse to serve or fail to give bond when required, or it the executor(s) qualify, but then die, resign or are removed, then the court or the clerk may grant administration of the estate to a person who is a residual of substantial legatee under the will, or his designee, and if no such person qualifies within 30 days, then to a person who would have been entitled to administration if there had been no will. A personal representative 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 had a home or resided, or, if none, where the decedent owned real estate, or if the decedent did not own real estate, where the decedent died or had estate assets.

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 Personal for Qualification. If the decedent has a will, the person(s) appointed as personal representatives in the are normally be qualified.

If a testator fails to appoint a personal representative in his or her will, the Clerk will appoint an administrator d.b.n.c.t.a. (discussed above), except that a spouse or parent who is barred from an interest in the estate because of desertion or abandonment under the law will not be appointed if a beneficiary of the estate objects.

For intestate decedents (without a will) the law provides certain preferences within certain time frames. Generally, during the first 30 days after 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 certain efforts to locate prior preferred parties have been made.

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, 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 received.

Oath and Bond. The personal representative will be required to give their oath that he or she will faithfully perform their 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, 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 willl 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 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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