Probate, trust, guardianship and inheritance litigation
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Who Can Serve As Personal Representative In Virginia?

To serve as a personal representative in Virginia, an individual must be:

  1. 18 years of age or older;
  2. Able to obtain surety, if required;
  3. Suitable and competent to perform the duties of a personal representative in Virginia.

 

Virginia does not require that the personal representative is a resident of Virginia to serve.  A nonresident personal representative must appoint someone who lives in Virginia to act as an agent that can accept legal papers on the nonresident executor’s behalf.

What Is a Personal Representative In Virginia?

A Personal Representative is the term used in Virginia to mean either the executor or administrator of the estate.

An Executor is the person named in the decedent’s valid will to administer the estate and who accepts the appointment to serve by qualifying as executor.

An Administrator is a person appointed by the Clerk to administer the Virginia estate when the decedent died without a valid will or with a will that does not name an executor or if the executors named decline to serve.

How Do You Qualify As a Personal Representative In Virginia?

To qualify to serve as personal representative in Virginia, the personal representative must take the required oath and give bond.  The court or clerk must be satisfied that the person is suitable and competent to perform the duties of a personal representative.  Administration of a Virginia estate will not be granted to any person under a disability as defined under Virginia law §8.01-2.

Who Cannot Serve As a Personal Representative In Virginia?

A person is “under a disability” and thus not qualified to serve as personal representative under Virginia law if they are:

  1. A person convicted of a felony during the period he is confined;
  2. An infant;
  3. An incapacitated person as defined in an incapacitated person as defined in § 2-2000;
  4. An incapacitated ex-service person under § 2-2016; or
  5. Any other person who, upon motion to the court by any party to an action or suit or by any person in interest, is determined to be (i) incapable of taking proper care of his person, or (ii) incapable of properly handling and managing his estate, or (iii) otherwise unable to defend his property or legal rights either because of age or temporary or permanent impairment, whether physical, mental, or both. Such impairment may also include substance abuse as defined in § 2-100.

 

Who Has Priority To Serve As an Administrator Of a Virginia Estate?

Administration in an intestate estate in Virginia is granted as follows, pursuant to § 64.2-502 of the Code of Virginia:

During the First 30 Days

During the first 30 days following the decedent’s death, the court or the clerk may grant administration to a sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.  The sole distributee is often the surviving spouse or other next of kin.

After 30 Days Following Decedent’s Death

After 30 days have passed since the decedent’s death, the court or the clerk may grant administration to the first distributee, or his designee, who applies, provided, that if, during the first 30 days following the decedent’s death, more than one distributee notifies the court or the clerk of an intent to qualify after the 30-day period has elapsed, the court or the clerk shall not grant administration to any distributee, or his designee, until the court or the clerk has given all such distributees an opportunity to be heard.

After 45 Days Following Decedent’s Death

After 45 days have passed since the decedent’s death, the court or the clerk may grant administration to any nonprofit charitable organization that operated as a conservator or guardian for the decedent at the time of his death if such organization certifies that it has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of its intention to apply for administration at least 30 days before such application, or, that it has not been able to find any address for such distributee. However, if, during the first 45 days following the decedent’s death, any distributee notifies the court or the clerk of an intent to qualify after the 45-day period has elapsed, the court or the clerk shall not grant administration to any such organization until the court or the clerk has given all such distributees an opportunity to be heard. Qualification of such nonprofit charitable organization is not subject to challenge on account of the failure to make the certification required by this subdivision.

After 60 Days Following Decedent’s Death

After 60 days have passed since the decedent’s death, the court or the clerk may grant administration to one or more of the creditors or to any other person, provided such creditor or person other than a distributee certifies that he has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of his intention to apply for administration at least 30 days before such application, or that he has not been able to find any address for such distributee. Qualification of a creditor or person other than a distributee is not subject to challenge on account of the failure to make the certification required by this subdivision.

When granting administration, if the court determines that it is in the best interests of a decedent’s estate, the court may depart from the order of priority and grant administration to such person as the court deems appropriate.

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