3.3 Probate Process—a Brief Overview

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

3.3 PROBATE PROCESS—A BRIEF OVERVIEW

3.301 Probating the Will. When a Virginia resident dies, it should first be determined whether or not the decedent executed a valid will that was effective at his or her death. The existence of the will is important for determining who will serve as the personal representative (commonly referred to as the executor) and who is entitled to those assets devised or

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bequeathed by the decedent's will. If there is a will and if the decedent owned probatable assets at death, the will must be probated in the circuit court for the county or city in which the decedent last resided. ⁸ If at the time of his or her death the decedent was a patient in a nursing home located in a jurisdiction other than that of the decedent's residence before entering the nursing home, the will must nevertheless be probated in the jurisdiction of the decedent's last residence. ⁹

3.302 Qualifying the Personal Representative and the Trustee of a Testamentary Trust. Whether the decedent died testate or intestate, in most cases it is necessary for a person to qualify as the personal representative to administer the decedent's estate. If the decedent had a valid will and the personal representative qualifies, the personal representative is known as an executor, but if the personal representative named in the will does not qualify, whether because he or she declines to serve, has predeceased the decedent, or is otherwise incapable of serving as the executor, an administrator, c.t.a. (cum testamento annexo meaning "with the will annexed") will be appointed by the court. ¹⁰ If the decedent died without a will, the personal representative who qualifies is known as an administrator. Section 64.2-502 of the Virginia Code gives the statutory order of preference for those who may serve as administrator of an intestate estate. Usually the administrator is the decedent's surviving spouse, a child, some other relative of the decedent, or a charity that served as a guardian or conservator for the decedent. But a creditor of the decedent may also qualify as a personal representative if no relative or charity qualifies. ¹¹ If there are trusts created under the decedent's will, then the trustee of such trusts, referred to as testamentary trusts, must also qualify. ¹² A testamentary trustee may qualify at the same time the executor qualifies or at a later date when the trust is funded. In many cases the testamentary trustee is the same person as the executor.

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