Thursday, August 27, 2009

Qualifying to Administer an Estate

When an individual (a "decedent") dies in Virginia, a personal representative typically qualifies in the Clerk's Office of the Circuit Court for the city or county in which the decedent resided at the time of his death.

If the decedent died with a valid will, the personal representative is called the estate's executor, whereas the personal representative for a decedent who died without a will (the legal terminology in that case is that the decedent died intestate) is called the administrator.


To qualify in the City of Charlottesville or Albemarle County, a personal representative should make an appointment with the City or County Clerk's Office (depending on the jurisdiction in which the decedent resided). Among other tasks, the personal representative is asked to make an initial estimate of the probate assets owned by the decedent, in order to calculate the probate tax (an aside: probate assets usually do not include assets with beneficiary designations such as life insurance, IRA's, and other retirement assets, and they also do not include assets held in a decedent's living trust; the distinction between probate and non-probate assets can be an important consideration in developing an estate plan suitable to one's particular situation).


An executor or administrator is empowered with certain legal authority under the terms of the will or applicable law -- and, importantly, the executor or administrator owes significant fiduciary duties to the decedent's estate.

It is important that the personal representative understands both her authority and her duties in carrying out her various responsibilities, which including notifying certain parties of the estate administration, protecting the estate's assets, paying the decedent's enforceable debts and obligations, and distributing the decedent's assets in accordance with his or her will or under applicable law. Violating the fiduciary duties can result in personal liability for the executor or administrator, so it is advisable to consult with an attorney with any questions about the estate administration process.