Administration of Estates

Question 1

Jurisdiction and Venue

Who hears probate and intestacy matters?

Answer 1

Unlike most states, no probate courts. CIrcuit courts hear these matters. Many counties and cities delegate authority over uncontested probate matters to deputy clerks. Contested matters must go before a CC judge

Question 2

Jurisdiction and Venue

Venue is determined in the following order of priority:

Answer 2

1. The circuit court for the city or county where the decedent had a house or known place of residence
2. The circuit court for the city or country where there is real property owned or devised by the decedent
3. The circuit court for the city or county where the decedent dies or had personal property.

Question 3

Probating a Will

What is probate?

Answer 3

The process by which a will is proven, or shown to be valid

Question 4

Probating a Will

Methods proponent can use to prove the validity of the will?

Answer 4

• Show that the will has a self proving affidavit (no need for witness);
• The proponent may present testimony from the witnesses to the will about:
• the authenticity of their signatures
• The other requirements for execution were met;
• The testator’s mental capacity and testamentary intent

Question 5

How does proponent prove the validity of a holographic will?

Answer 5

Must produce 2 disinterested witnesses who testify that the will is completely in the handwriting of the testator.

Question 6

An attested will should have an attestation clause:

Answer 6

1. Found at the end of the will;
2. Where the witnesses sign; it states that the execution of the will met the formal requirements and that the testator had sufficient capacity to execute the will;
3. If one or more of the witnesses who sign the attestation clause are unavailable, the attestation clause provides prima facie evidence that the will was properly executed, although that the proponent still must authenticate the signatures

Question 7

An attested will can have - but does not need to have — a self-proving affidavit (3 things and 1 impact):

Answer 7

1. An affidavit signed by both the testator and the witnesses saying that all the formal requirements for execution have been met;
2. Signed at the same time as the will and is attached to the will;
3. Must be notarized, and it then removes the need in most cases for any witness testimony
   about the authenticity of the will and the authenticity of the signatures;

Creates a presumption that the will is valid and should be probated

Question 8

A probate proceeding might be ex parte or inter partes, which means?

Answer 8

• Ex parte—no notice is given to interested parties until after the proceeding is over,
• Inter partes (i.e., between parties)—the proceeding is a full judicial hearing with advance notice and right to a jury

Question 9

Executors and Administrators

Difference between personal representative and executor?

Answer 9

Same thing. haha. The person who manages the decedant’s estate generally is known as the personal represnative, and if the decedent dies testate and the will names someone to manage the estate, the personal representative named by the will is the executor.

Question 10

Executors and Administrators

If the decedent dies testate and the will does not hame someone to manage the estate, or if the person named by the will to manage the estate is unable or unwilling to do so, or if the
decedent dies intestate, the court appoints a personal representative; that person is the

Answer 10

Administrator

Question 11

Executors and Administrators

VA rules for qualifying Executors and Administrators?

Answer 11

1. Must be at least 18 years old, legally competent, and must swear an oath before the clerk or judge that:
   - She will faithfully perform the duties to the best of her judgment;
   - If the will is in probate, that (to the best of her knowledge), the writingis the decedent’s
   last true will; and
   - If the decedent died intestate, that (to the best of her knowledge), the decedent left no will.
2. Must post a fiduciary bond equal in value to the decedent’s personal property and to any real property that the will authorizes for sale
3. May have to post security (or surety) on the bond (MUST if non-resident)
4. A non-resident individual who is appointed to serve as either executor or administrator must consent to service of process in Virginia and must post surity bond — even if security is waived by the will — unless there is a Virginia resident serving as co-executor or coadministrator

Question 12

Who will serve as an adminstrator? different based on testate or intestate. Also what is the technical title for testate adminstrator?

Answer 12

Decedent died testate, but the will does not name an executor or the named executor is unable or unwilling to serve, the court appoints an administrator:
* Known as the administrator c.t.a. — which means “cum testamento annexo,” or “with will attached;
* Usually the administrator c.t.a. will be a residual beneficiary or a substantial beneficiary.

Decedent died intestate, the court appoints an administrator from among the decedent’s heirs.

Question 13

The process for appointing an administrator:

Answer 13

Within the first 30 days of death the court may appoint a sole distributee as administrator or a distributee who provides written waivers from the other distributees.

After the first 30 days following death, the court may appoint the first distributee who
applies to be appointed administrator.

If there is no administrator after 45 days following death, any non-profit charitable organization that operated as the conservator or guardian for the decedent may be appointed administrator.

If there is still no administrator after 60 days, a creditor of the decedent’s estate can be appointed as administrator.

Question 14

Executors and Administrators

Once appointed, how can an administrator or executor leave the position?

Answer 14

They can voluntarily resign, and the court can involuntarily remove them

Question 15

Executors and Administrators

Once removed or having left, the court must appoint a replacement. What are the replacements called in intestate v. testate proceedings?

Answer 15

If the prior person was an administrator managing an intestate estate, the new administrator is known as the administrator d.b.n. (for administrator “de bonis non” —of the goods or property not administered).

If the prior person was an executor or an administrator c.t.a., the new person is known as the administrator c.t.a. d.b.n.

Question 16

Special rules for small estates

If the total value of the personal estate is ________ or less, the beneficiaries are permitted…

Answer 16

1. 50K
2. to collect the assets of the estate without formal administration; they simply have to wait at least 60 days from the decedent’s date of death.

Question 17

Special rules for small estates

In these cases, a third party holding small assets payable to the estate makes payment directly to the beneficiaries upon an affidavit from the beneficiaires stating that:

Answer 17

• The decedent’s estate is not worth more than $50,000;
• Atleast 60 days have passed since the decedent’s death;
• No executor or administrator has been appointed;
• The will (if there is one) has been probated;
• The beneficiaries are entitled to the small assets held by the third party and the reason why they are entitled to those assets;
• The names and addresses of the beneficiaries
• The name of the person to whom the small assets held by the third party should be
  delivered on behalf of the beneficiaries;
• The person to whom the small assets held by the third party should be delivered has a fiduciary duty to safeguard the assets and deliver them to the beneficiaries

Question 18

third parties holding assets worth ____________ or less are permitted (but not required) to…

Answer 18

1. 25K
2. those assets directly to the beneficiaries of the estate if there has been no administrator or
   executor appointed and it has been at least 60 days since the decedent’s death.

Question 19

Special rules for small estates

Athird party holding small assets may, at the request of a beneficiary, deliver those assets directly to the funeral home that handled the decedent’s funeral, for up to________________ of funeral expenses there has been no administrator or executor appointed and it has been at least ____________ since the decedent’s death

Answer 19

1. 3,500
2. 30

Question 20

Executors and Administrators

The executor or the administrator is a fiduciary, and he has important responsibilities like:

Answer 20

marshaling the assets of the estate, paying off the estate’s creditors, and distributing the assets of the estate to the beneficiaries

Question 21

Executors and Administrators

What are their ministerial tasks

Answer 21

• At the time the executor or the administrator is first qualified, she must file with the court or the clerk a list of all the decedent’s heirs.
• An executor or administrator c.t.a, must provide a notice of probate to the decedent’s surviving spouse (if there is one), any other heirs, and anyone else who is a beneficiary under the will that is offered for probate,
• Within four months of qualification, the executor or administrator must file with the commissioner of accounts for the county or city where the estate is being administered an inventory of all estate assets.
• Within 16 months qualification, the executor or administrator must file with the commissioner of accounts an accounting of the receipts and disbursements during the first year of the estate.