When someone dies with or without a will, their assets must go through a process called probate. Probate is the submitting of an estate to the court so that the court can oversee the process of distributing the estate. There are many tasks to accomplish in probate, but this article focuses on qualifying as a personal representative, which marks the beginning of the probate process. The personal representative oversees the administration of the decedent’s estate, which includes everything from paying the fees that come at death to divvying up the estate.
Types of Personal Representatives
If the decedent had a will and appointed a person to administer his or her estate, the person appointed is called an executor. If there was no will or the will did not name anyone as an executor, the court appoints an administrator. However, often times, instead of the court appointed administrator, a member of the decedent’s family or other interested parties will petition to become the estate’s administrator.
How to Start
The person who intends to qualify as a personal representative will first need to set up an appointment with the clerk or deputy clerk of court in the jurisdiction where the decedent lived at the time of death.
What to Bring
The potential representative will need to bring certain items to the meeting with the court clerk to ensure its success. The list includes:
- The original will
- A certified death certificate
- Identification for the representative
- A check to pay taxes and fees
- Someone who will provide surety on the personal representative’s bond. The bondsman is not always needed as a will can waive surety.
It is also a good practice to speak with beneficiaries before the meeting and get them to sign a waiver and consent form. The waiver and consent form states that the beneficiary agrees that the will is valid and the person named can be the personal representative for the estate. Getting this waiver and consent can avoid challenges later.
Steps in the Meeting
The process of meeting with the clerk is outlined below.
- The clerk will determine if the will is valid. A self-proving affidavit will suffice to prove the will. However, if there is no affidavit, the witnesses to the signature on the will are needed at the meeting or they will need to submit a sworn statement.
- The representative will fill out forms provided by the court, which give information about the will and the testator. These forms can be filled out in advance to save time. The forms include: a probate information or memorandum of facts, a probate tax return, and a list of heirs.
- The representative will be qualified and sworn in by the court or the court clerk.
- The representative will then need to break out his or her checkbook to pay the probate tax (codified in Code of Virginia Sections 58.1-1711-1718) of $.10 per $100 in value of the estate. If the estate is worth $15,000 or less, there is no tax. The representative will also pay for any certificates showing his or her qualification to administer the estate, two of which are provided for free and the rest priced at $2 a piece.
Requirements for the Representative
A personal representative must be:
- 18 or older
- Able to obtain surety, as required if the representative is a non-resident
Keep in Mind
Procedures vary by jurisdiction. This article is meant as a general overview of the process.
How an Attorney Will Help
The attorneys at Smith Strong are well versed in estate matters and will be able to navigate the long and seemingly overwhelming process of probate and administering a will. If you need help with any estate matter, please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg).
Editorial Assistance by: Michael Gee