Probate is the legal process of settling a decedent’s estate and distributing his property to devisees according to the provisions of a will or to heirs at law. Probate procedures are codified at Title 64.2 of the Code of Virginia.
The Circuit Court of the county or independent city where the decedent resided at the time of death oversees the probate of an estate in the Commonwealth of Virginia (64.2-443). Typically, the Clerk or Deputy Clerk of the Circuit Court handles formal administration of estates, (estates requiring appointment of a personal representative, or PR). Small estates, those in which the decedent owned only personal property under a certain value, do not require formal probate proceedings. In addition, assets titled with a survivorship or beneficiary designation transfer outside of probate.
To initiate probate, the custodian, typically the executor, delivers the decedent’s will to the appropriate Circuit Court for filing and probating, as well as a certified copy of the death certificate. If the decedent died intestate (without a will), the person seeking to qualify as the estate’s administrator must have knowledge of the assets and total value of the estate. At this time, probate tax is due to the circuit court (58.1-1711–1718).
The court will appoint the person named in the will as executor of the estate. The executor is a personal representative serving in a fiduciary capacity to administer the estate. If the executor named in the decedent’s will does not wish to serve, the court appoints the alternate or a beneficiary named in the will. If there is no will, the court will appoint an administrator. This is typically a distributee of the decedent’s estate or a person mutually agreed upon when there is more than one distributee.
While many states use documents known as letters testamentary or letters of administration, based on the PR’s role in the probate case, Virginia probate courts simply issue a certificate of qualification. This document evidences the personal representative’s authority and qualification to act on the estate’s behalf. Within 30 days of filing, the personal representative is required to give notice of his or her qualification to heirs.
Within four months, the personal representative submits an inventory with the Commissioner of Accounts. The Commissioner of Accounts is commissioned by the court to oversee the actions of fiduciaries and is responsible for reviewing and approving inventories and accountings in probate proceedings.
A decedent’s real estate passes to the beneficiaries named in his will once the will has been probated, subject to the executor’s power of sale, if such power is included in the will . The personal representative may need to sell real estate when the estate’s assets are “insufficient to satisfy the decedent’s debts and lawful demands against the estate” (64.2-532).
When the decedent’s will specifically directs the sale of real estate, the personal representative (either executor or administrator with the will annexed) may sell and convey the property (64.2-521). The personal representative is lawfully required to distribute proceeds from the sale to the persons entitled to them (64.2-522).
A testator (will maker) may incorporate fiduciary powers into his will, including the power to sell, transfer, and convey real property and execute and deliver conveyances of real property “in such form and with warranties and covenants as the fiduciary deems expedient and proper” (64.2-105(B)(3)). However, a power of sale is not the same as a directive to sell, especially when the estate has sufficient assets to pay debts and specific devises . Real property is typically the last asset liquidated for payment of debts, unless otherwise directed by the will . A sale may be desirable and more efficient in situations where several beneficiaries succeed to an interest in real property, and all beneficiaries consent to a sale.
Intestate property passes pursuant to the course of descents established at 64.2-200, first to surviving spouse, then to decedent’s children. It does not come under control of the administrator unless specified by court order . Upon a petition by the administrator, the Circuit Court may grant any of the powers under Va. Code 64.2-105 (64.2-106). To sell real estate, the administrator must obtain an order granting the power of sale.
Following a sale, the personal representative executes a deed to transfer title to the purchaser. The common conveyancing document fiduciaries use is a special warranty deed. In a special warranty deed, a statutory form under Va. Code 55-69, the grantor limits the warranty of title to defects that existed only for the duration of his ownership of the property. In Virginia, special warranty deeds also contain covenants of right to convey, quiet enjoyment, further assurances, and against encumbrances, though these covenants are not implied (55-71–55-74).
A personal representative deed identifies the fiduciary/grantor by name and capacity. It recites the decedent’s name and file number assigned to the estate, as well as the court overseeing probate. The grantee’s name, address, and vesting information must appear on the face of the document to establish clear and marketable title. As with all documents pertaining to an interest in real property, personal representative’s deeds require a legal description of the subject parcel.
The fiduciary/grantor should also reference his source of authority to sell the property. To properly transfer title to the grantee/purchaser, the personal representative signs the deed in the presence of an authorized officer (Clerk, Deputy Clerk, or Notary Public) before recording in the city or county Circuit Court Clerk’s office where the parcel is situated. State and local recording fees apply, unless the document notes a valid exemption. Use the Circuit Court deed calculation tool on Virginia’s Court System website to determine recording fees. Verify accepted payment methods with the appropriate office.
Deeds must meet standards of form and content for recorded documents. Most, but not all county requirements coincide with the Library of Virginia’s Standards for Recorded Instruments. Check with the Circuit Court Clerk’s office to verify local rules and cover sheet requirements (17.1-227.1).
Personal representatives are not required to pay legacies left in a will or to distribute the estate until six months after the court issues a certificate of qualification to the executor or administrator (64.2-554). After this time, and after receiving a report of accounts by the Commissioner, the court may enter an order for creditors to show cause against the payment and delivery of the estate (64.2-556). When the time to show cause has passed, the court may enter an order releasing the estate to be distributed by the personal representative. The personal representative is released of liability if he has complied with the provisions of the law and has acted in compliance with the order of the court (64.2-556(B)).
The information provided here is not a substitute for legal advice. Always consult a lawyer with questions regarding probate procedures and personal representative’s deeds in the Commonwealth of Virginia.