A subcommittee of lawyers from the VBA
Wills, Trusts and Estates Section has undertaken a study of Virginia law governing
real and personal property and the administration of decedents' estates. The subcommittee,
headed by Thomas J. Michie of Charlottesville, hopes its efforts will result in
legislation that will change the way real and personal property of a decedent
are administered, and will generally make the law clearer and easier to understand.
Its goal is to have proposed legislation considered by the General Assembly as
early as the 2001 session.
Because of the traditional interplay of trusts and estates law and real property
law -- a decedent's estate usually includes real property that often is transferred
during estate administration -- the VBA subcommittee has asked for input from
the members of the VBA Real Estate Section and the VSB Real Property Section.
Mr. Michie and another member of the VBA subcommittee, J. Hume Taylor, Jr. of
Norfolk, addressed members of the VBA and VSB sections at the VBA Winter Meeting
in Williamsburg in January. As a result, a joint subcommittee made up of members
of both the VBA and VSB sections was formed to provide input to the Wills, Trusts
and Estates subcommittee on real property issues that may be affected by any proposed
legislative changes.
The Wills, Trusts and Estates subcommittee has established the following general
principles to guide its efforts:
There should be one statute on
descents and distributions of real and personal property.
Executors and administrators
should have the same powers and duties insofar as their offices are similar.
Executors and administrators
should have the powers set forth in Va. Code Ann. § 64.1-57 (Michie Supp.
1999).
Every executor and administrator
should have title to all real and personal property in the probate estate.
We should try to clarify where
title to, and responsibility for, real and personal property is at all times
from the moment of death.
We do not want to force qualifications
to occur in either testate or intestate situations to any greater extent than
at the present.
The law of abatement should be
codified so as to eliminate the distinction between real and personal property.
The linchpin of the above principles, and the one from which most of the others
flow, is the elimination of the distinction between real and personal property
in the administration of estates that currently exists under Virginia law.
The distinction between real and personal property in estate administration arose
in early English common law as a result of the feudal system. Land, as the basis
of wealth under the feudal economy, descended to the eldest son, while the less
important personalty went to the other children. With Virginia's adoption of English
common law, the distinction became part of Virginia law and continues to be the
law today.
According to the advocates for a change, the distinction is no longer necessary
or even desirable. Virginia law excludes a decedent's real estate from the probate
estate, and requires that before any real estate can be used to satisfy debts
of the estate, the personal property must first be exhausted. However, much of
today's wealth is concentrated in personal property -- such as stocks, bonds,
and mutual funds -- and not in real estate. In today's economy, stock in a closely
held corporation or even in Microsoft or Intel might have more value and income-producing
potential than a parcel of land. But in Virginia, the more valuable personal property
would have to be sold first to satisfy any debts, and the less valuable real estate
would be kept. Consequently, this ancient rule often works to the economic disadvantage
of the decedent's family, and even the decedent's creditors.
To avoid this problem, the Wills, Trusts and Estates subcommittee proposes to
vest executors and administrators in testate and intestate estates (generically,
"personal representatives") with title to all of the decedent's property, both
real and personal. Personal representatives also automatically would be given
all of the powers and duties currently set out in Va. Code Ann. § 64.1-57
(Michie Supp. 1999), which include the power to sell and to exercise broad discretion
in most matters. Currently, executors have only those powers conferred expressly
by the will, or granted by court order.
Vesting title to real estate in executors and administrators would be a dramatic
departure from present Virginia law. Currently, upon probate of the testator's
will, title to real estate passes automatically to the devisees named in the will.
The devisees take title subject to divestment by the executor's exercise of a
power of sale conferred in the will (or by the court). But title remains in the
devisees unless and, arguably, until the executor exercises that power. Consequently,
it may not be inaccurate to say that except for the executor who has a power coupled
with an interest (the testator devises the property to the executor with a direction
to sell), an executor never has title to the real property even though the executor
may have the power to sell the property and divest the devisees of title.
If the decedent dies intestate, title to the real estate "shall descend and pass"
to the decedent's heirs-at-law according to the course of descents set forth in
Va. Code Ann. § 64.1-1 (Michie 1995). To use the old phrase, the real estate
"drops like a rock" to the heirs-at-law. The intestate administrator is not vested
with title to the real estate, has no control over it and no power to sell it,
absent a court order to that effect. The decedent's personal estate passes and
is distributed according to Va. Code Ann. § 64.1-11 (Michie Supp. 1999),
which also makes the personalty subject to the payment of the decedent's debts.
Other states have a similar statutory scheme to that envisioned by the Virginia
subcommittee. In Maryland, for example, personal representatives in both testate
and intestate estates are vested with title to all property and also have the
power and discretion to sell property or distribute it to the devisees or heirs-at-law
as proper administration of the estate dictates. Maryland also requires that a
personal representative qualify in every estate. However, as noted above, one
of the general principles of the Virginia subcommittee is not to force qualifications
of personal representatives to any greater extent than at present. Currently,
Virginia does not require qualification, and in many estates, especially those
that are uncomplicated or small, no qualification in fact occurs.
Reconciling the principle of no forced qualifications with the desire to "clarify
where title to, and responsibility for, real and personal property is at all times
from the moment of death" will be a challenge for the subcommittee. In other words,
who owns the property when a will is probated or a list of heirs is filed and
there is no immediate qualification, but there might be one later? Currently,
the Wills, Trusts and Estates subcommittee is considering establishing a time
limitation on qualification before the vesting of title is fixed, a "waiting period"
so to speak. Under this concept, title will vest in the personal representative
if qualification occurs within the waiting period, but will vest in the devisees
or heirs-at-law as the case may be if there is no qualification before the end
of the waiting period. In any event, vesting would relate back and be effective
as of the date of death. A waiting period of three months from the date of probate
of the will in a testate estate or the filing of a list of heirs in an intestate
estate is being considered. Opponents of this concept may argue that the waiting
period in essence will create a period of time during which title to property
is in limbo. Proponents may argue that even that is an improvement over the general
uncertainty under the current law.
These and other issues and challenges lie ahead for the Wills, Trusts and Estates
subcommittee. They are just beginning their effort to determine what needs to
be changed and how best to go about it. Regardless of the position that the members
of the joint real property subcommittee and real property lawyers in general take
with respect to the changes that are eventually proposed, all real property lawyers
should be grateful for the opportunity to share their ideas with the Wills, Trusts
and Estates lawyers at this early stage. It is a great opportunity to have some
input before it becomes law. If you would like to know more about these efforts,
you may wish to contact a member of one of the subcommittees listed below.
Members of the Wills, Trusts and Estates subcommittee are Thomas J. Michie and
James P. Cox III of Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., in Charlottesville;
J. Lee E. Osbourne of Carter, Brown & Osbourne in Roanoke; Frank A. Thomas, III,
of Shackelford, Honenberger, Thomas, et al in Orange; Suzanne W. Doggett of McGuire,
Woods, Battle & Boothe in McLean; and J. Hume Taylor, Jr., of Taylor & Walker
in Norfolk.
Members of the joint VBA and VSB subcommittee are Susan M. Pesner of The Pesner
and Kawamoto Law Group in McLean; Michael E. Barney of Kaufman & Canoles in Virginia
Beach; H. Victor Millner, Jr., of Chatham; Christina E. Meier of Goss, Meier,
Fentress & Gutterman in Norfolk; Lucia Anna Trigiani of Mays & Valentine in McLean;
Philip deB. Rome and Hugh T. Harrison, II, of Williams, Mullen, Clark & Dobbins
in Richmond; Ronald P. Donn of Lawyers Title Insurance Corp. in Norfolk; and John
David Epperly of Fidelity National Title Insurance Company of New York in Fairfax.
*John David Epperly is Virginia State
Counsel for Fidelity National Title Insurance Company of New York. His office
is in Fairfax. He is a member of the Fairfax and Virginia Bar Association, and
is currently Vice-Chair of the Board of Governors of the Real Property Section
of the Virginia State Bar.