2.10 Practical Aspects of Ex Parte Probate and Qualification before Clerk

• Library: Estate and Trust Administration in Virginia (Virginia CLE) (2019 Ed.)

2.10 PRACTICAL ASPECTS OF EX PARTE PROBATE AND QUALIFICATION BEFORE CLERK

2.1001 Preliminary Matters. Before the proponent of a will offers it for probate, he or she should consult the clerk's office to inquire whether an appointment is necessary. If the will is not self-proving, arrangements should be made to have one or two witnesses present. The number of witnesses required should be ascertained in advance from the clerk's office.

2.1002 Bond. A bond is required that is at least equal to the value of the personal estate or, if the will authorizes the sale or rental of real estate, at least equal to the value of the personal estate and the real estate or its rents and profits. The clerk may subsequently reduce the bond upon a change of circumstances. ⁴² By custom, clerks fix the bond at twice the declared value of the probate estate.

In all cases where the fiduciary qualifies pursuant to an order of the clerk, the clerk may require a new or additional bond, with or without surety, upon the motion of a fiduciary, a surety, or other interested party, or when it appears proper to so do. When the court or the clerk orders a change in the bond, the fiduciary, in lieu of personal appearance, may have his or her agent execute the new or revised bond under a power of attorney specifically authorizing such act. ⁴³

2.1003 Surety. A surety may be needed at probate to guarantee the bond of the personal representative. A surety protects beneficiaries and creditors of an estate if the personal representative breaches his or her fiduciary duty but has no personal assets to satisfy the losses incurred by the beneficiaries or creditors. Surety is not necessary if:

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1.	It is waived in the will; 44
2.	The fiduciary is a bank or trust company with trust powers and having the specified minimum amount of capital stock; 45
3.	All residuary distributees or beneficiaries are also personal representatives; 46
4.	When there are no assets or the value of assets involved does not exceed $25,000; 47 or
5.	A personal representative is serving jointly with a bank or trust company exempted from giving surety, unless the court directs otherwise. 48

In addition, security is only required on the portion of assets passing to beneficiaries who are not personal representatives. Despite these exemptions from the security requirement, the court or clerk may require security from the personal representative upon motion by a legatee, devisee, distributee, or any person with a pecuniary interest in the estate. ⁴⁹ A surety is always required for a nonresident personal representative who is serving without a Virginia resident co-fiduciary, unless it is waived by the court pursuant to section 64.2-1411 of the Virginia Code. ⁵⁰

When a personal representative qualifies for a waiver of surety for an estate of $25,000 or less, the clerk must issue a "Qualification Certificate for Small Asset Estate" that must:

1. State in a prominent position on the front of such certificate that any person may pay or deliver to the fiduciary named in the certificate any asset belonging, owed, or distributable to the specified deceased person,

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