How Is an Executor of an Estate Determined in the State of Virginia?

By Jeffry Olson, J.D.

How Is an Executor of an Estate Determined in the State of Virginia?

By Jeffry Olson, J.D.

The executor of an estate is the person or institution appointed in a will by the testator (the person creating the will and naming heirs) to carry out the terms of the will. However, in the state of Virginia, even an individual named executor must still take steps to qualify as the executor of the deceased's estate.

Middle aged woman looking at document with elderly mother

The Court Process

The court process for carrying out the wishes of the deceased as expressed in their will is known as probate. During this process, the executor pays all valid debts and taxes of the deceased and distributes the remaining assets to the deceased's named heirs pursuant to the terms of the will.

The testator may name any adult as the executor of their estate. If the executor is not a resident of the state of Virginia, state law requires the executor to appoint an agent who is a resident. In addition, the executor might have to post a bond, unless the will specifically waives this requirement.

Meeting with the County Clerk

To qualify as the executor of an estate in Virginia, the individual must contact the clerk's office in the deceased's county of residence and schedule a meeting with the probate clerk.

The potential executor brings all necessary paperwork to the meeting. In addition to the original will and a certified copy of the death certificate, the probate clerk requires a Probate Information form, a Probate Tax Return form, and a List of Heirs. The executor can complete these forms ahead of time or obtain them from the probate clerk.

The Probate Information form asks for basic information about the deceased found on the death certificate or in the will itself. It also requests information regarding the person seeking executorship.

The clerk assesses a tax, known as probate tax, pursuant to the Probate Tax Return. This tax is based on the estimated value of the deceased's personal property, reported on the completed Probate Tax Return, and it is separate from any applicable estate tax. If the value of the property is less than $15,000, the clerk does not collect probate tax.

The List of Heirs identifies members of the deceased's family entitled to inherit if there was no will. The completed form includes the name, address, age, and relation to the deceased for each heir. It lists the spouse of the decedent as heir unless the decedent has surviving children who are not the children of the surviving spouse. If the surviving children are not the children of the surviving spouse, all children are listed. If the decedent has no surviving spouse, all living children are listed, along with the descendants of deceased children. Other heirs to be listed are provided in state law. The List of Heirs is not based on the beneficiaries named in the will.

Other Factors

A beneficiary to the will may ask to serve as executor if the executor named in the will has died and the will does not name a subsequent executor or if the subsequent executor has also died. If the named executor refuses the role, a beneficiary to the estate may seek to become executor. In the event the decedent dies without a will, a situation known as intestacy, an heir may seek to qualify as executor. A surviving spouse has priority, followed by other heirs.

After qualifying, the executor of a will is responsible for resolving the estate of the decedent. Depending on the estate, this may be complicated and take a significant amount of time. At all times, the executor must act to carry out the wishes of the decedent and in the best interests of the beneficiaries of the estate.

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