Virginia State Bar

An agency of the Supreme Court of Virginia

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Trusts and Estates

A Section of the Virginia State Bar.

Winter 2008 Newsletter

Newsletter - Trusts and Estates

Volume 21, No. 2

Probate Administration in Virginia: An Overview For The Personal Representative

By: Lauren A. Jenkins

An individual often names a family member as the personal representative1 of his or her estate. Complications arise when the named family member is unfamiliar with the probate process and has not retained counsel to assist with the administration. The probate process includes recording the will, collecting the decedent’s assets, paying the outstanding debts and administration expenses, and distributing the remaining assets to the beneficiaries. Like many areas of Virginia law, the rules that apply to estate administration are not always intuitive, and if not followed, can cause the imposition of penalties and lead to suits against the personal representative for breach of fiduciary duty.2 This article will outline the most common issues facing the representative from qualification to closing the estate.

I. QUALIFICATION

A. Powers Before Qualification. The personal representative is granted limited powers between the decedent’s death and the time of qualification before the clerk of court. These limited powers include preserving the estate from waste, arranging for the burial of the decedent, and paying reasonable funeral expenses.3 To prevent any loss to the decedent’s estate, the personal representative should secure the estate’s assets, especially if the decedent is not survived by any close family members. Since it is unlikely the personal representative will qualify before funeral arrangements are made and expenses incurred, a person who is authorized to make funeral arrangements for the decedent can bind the estate for such expenses.4 These expenses will then be reimbursed after the personal representative qualifies and opens an estate bank account. It is important to note that if the estate does not have sufficient funds to satisfy the funeral expenses, the person who advanced the funds on behalf of the estate may be barred from reimbursement.5 Therefore, the personal representative should be mindful of the funeral expenses if it appears the decedent may have an insolvent estate. Currently, funeral expenses for an insolvent estate are limited to $3,500.6

B. Preparation for Qualification. The personal representative should obtain certain documents before the personal representative qualifies, including the original will and a certified copy of the decedent’s death certificate. The personal representative should determine whether it is necessary to complete the court’s probate forms in advance of the qualification appointment and will need to estimate the value of the probate estate for fee calculation purposes.

The person named as personal representative must locate the original will. If the decedent kept his or her will in a safe deposit box, the bank may allow limited access to the safe deposit box for the purpose of retrieving the will.7 Once the original will has been located, the personal representative should ensure that it contains a self-proving affidavit. A will is self-proved if the decedent and two witnesses attest before a notary public that the decedent executed the will as a free act, in the presence of the witnesses, and in the presence of each other.8 The attestation can take place at the time of the will execution or at a later date.9 If the will is self-proved, no witnesses to the will execution will be required to attend the qualification appointment.10

The witnesses may need to attend the qualification appointment if the will is not self-proved. The personal representative should speak to the clerk in advance to determine if witnesses should attend the appointment or if the clerk will accept a deposition from the witnesses.11 As an estate bank account will not be established before the personal representative qualifies, the personal representative will need to advance the probate fees from the personal representative’s funds. Similar to the funeral expenses, these costs will be reimbursed after the estate bank account is opened. The personal representative should inquire as to the estimated fees that will be incurred during the qualification appointment, which will depend upon the number of pages in the will and the estimated value of the estate assets.

If the decedent died without a will (i.e., died intestate), Virginia law dictates who can qualify as personal representative and when that person can be appointed.12 During the first thirty (30) days following the decedent’s death, the following individuals can qualify as personal representative: (i) a sole distributee or his designee; or (ii) if there is more than one distributee, any of the distributees or his designee if all of the other distributees waive their right to qualify in writing.13 If no one qualifies during the first thirty (30) days, the first distributee or his designee who applies to qualify as personal representative will be granted administration and it will not be necessary for that distributee to secure written waivers from the other distributees.14 However, the distributee will not be able to qualify if, during the first thirty (30) days following the decedent’s death, another distributee notified the clerk of that distributee’s intent to qualify.15 Note that the time periods for qualifying only apply to intestate estates, and do not apply if the decedent died with a will.

In addition to locating the original will, the personal representative will need to order certified copies of the decedent’s death certificate to present when qualifying at the clerk’s office and to administer the estate. Death certificates can be ordered through the funeral home or by contacting the Division of Vital Records.

Virginia requires the personal representative to appear before the clerk of the court to qualify; qualification cannot be done through the mail or over the phone. After the personal representative has located the original will, ordered death certificates, and estimated the value of the probate estate, the personal representative should contact the clerk of the circuit court to make arrangements to appear before the clerk. Some clerks require advanced appointments whereas other clerks allow walk-in appointments.

The circuit court where the personal representative qualifies is located in the city or county where the decedent resided.16 In situations where the decedent resided in a nursing or convalescent home prior to the decedent’s death, the city or county where the decedent resided before relocating will control.17

There are certain forms which the personal representative should review in advance of the qualification appointment, including the List of Heirs,18 Probate Information Form, Memorandum of Facts, and Probate Tax Return.19 All of theses forms are available on the Internet at http://www.courts.state.va.us. In some jurisdictions, the personal representative should complete these form prior to the appointment while in other jurisdictions, the clerk will complete them during the course of the appointment. When scheduling the probate appointment, the personal representative should inquire whether or not they should complete the forms prior to the appointment.

Finally, the personal representative may have to make arrangements to obtain a surety bond.20 Depending upon the language in the will and the facts surrounding the qualification, the personal representative may be required to post security for his or her bond. It is common for most wills to waive the security requirement. However, if security is not waive din the will, the personal representative will be required to obtain a surety bond unless (i) the personal representative is a bank or trust company;21 (ii) all of the beneficiaries of the estate are also serving as the personal representatives;22 or (iii) the assets of the estate are $15,000 or less.23 The will should be reviewed before the qualification appointment to determine if a surety bond will be required. The probate clerk will usually provide the contact information for local bonding companies if the personal representative needs to obtain a surety bond. Even if security is waived in the will, a non-Virginia resident will be required to post security on his or her bond, unless he or she is serving with a co-personal representative who is a Virginia resident.24

C. Qualification Appointment. At the time of qualification, the personal representative should bring the following documents with the personal representative to the clerk’s office: original will, certified copy of the decedent’s death certificate, List of Heirs, Probate Information Form, Memorandum of Facts, Probate Tax Return and list of probate assets with estimated values.

During the qualification appointment, the clerk will set the bond of the personal representative in an amount equal to the full value of the decedent’sestate.25 The amount of the bond varies by jurisdiction. It is customary for the clerk to set the bond at twice the value of the probate estate. The personal representative will be required to pay the clerk’s fee and probate taxes at the time of qualification.

The clerk will assign a Commissioner of Accounts (“Commissioner”) to the decedent’s estate. The Commissioner is appointed by the circuit court judges and is responsible for overseeing the administration of probate estates.26 The role of the Commissioner is discussed further below.

At the end of the qualification appointment, the clerk will provide the personal representative with certificates of qualification. The certificate of qualification shows that the personal representative has authority to act on behalf of the estate. These certificates will be used by the personal representative to collect the decedent’s assets and open the estate account. Typically, financial institutions require certificates of qualification to be dated within sixty days of when they receive it to transfer assets. A personal representative can always request additional certificates of qualification from the court. Usually a small fee is required to be paid to obtain the additional certificates.

II. ESTATE ADMINISTRATION

A. Powers of the Personal Representative. The personal representative’s powers to administer the estate are governed by Virginia statutes and the decedent’s will. The will should be reviewed by the personal representative to determine the personal representative’s powers with respect to the estate. In addition, Virginia law provides for broad fiduciary powers that should be incorporated by reference in the decedent’s will.27 The fiduciary powers contained in the statute are comprehensive and provide most personal representatives with all of the powers they will need to administer the estate. However, if the decedent’s will did not enumerate or incorporate such Virginia statutory powers by reference in the will, the personal representative does not have these powers unless the personal representative files a motion with the court requesting that it grant the personal representative all or some of the fiduciary powers found in the statutes.28

B. Notice Regarding Estate. Within thirty (30) days of qualification, the personal representative is required to provide all interested parties with written notification of the personal representative’s qualification.29 The notice also informs the interested parties that the personal representative is required to provide them with copies of inventories and accountings upon their written request.30 Generally, the personal representative will be required to send the notice to the surviving spouse, the decedent’s heirs at law, and the beneficiaries of the decedent’s will.31 After the personal representative sends the notices to all of the required parties, he or she must execute the Affidavit of Notice which states that the personal representative complied with the notice requirements. The personal representative must file the Affidavit of Notice with the court within four (4) months of qualification.32

C. Taxpayer Identification Number. Since estates are considered separate taxpaying entities, the decedent’s Social Security Number cannot be used by the estate. Rather, the personal representative should apply for a taxpayer identification number (called an Employer Identification Number “EIN”). EINs are requested through the Internal Revenue Service(“IRS”) by completing Form SS-4. The EIN can be requested by mail, phone, or through the Internet.33 Once the personal representative obtains the EIN for the estate, the personal representative should provide it to all parties who will pay income to the estate.

D. Estate Bank Account. After the personal representative qualifies and obtains an EIN for the estate,the personal representative should open an estate bank account. This account will be used to collect the decedent’s assets, satisfy the decedent’s debts and estate administration expenses, and distribute assets to the beneficiaries. The bank will require the personal representative to present a certified copy of the decedent’s death certificate, a certificate of qualification, and the estate’s EIN to open the account. The personal representative should request the bank provide him or her with copies of the cancelled checks to accompany the monthly statements. This information will assist the personal representative with preparing the Accountings he or she files on behalf the estate with the Commissioner.

After the account is opened, the personal representative should begin closing the decedent’s bank accounts and transferring the funds to the estate bank account. The personal representative must ensure that all checks have cleared before closing any account. Any expenses that were advanced on behalf of the estate before qualification should be reimbursed from the estate account (e.g., funeral expenses and qualification fees) if the estate is solvent. In addition, the personal representative should plan for the future disbursements from the estate account to ensure the personal representative will be able to satisfy the decedent’s debts, funeral expenses, taxes, and administration costs.

E. Assets of the Estate. The personal representative is responsible for identifying and collecting the decedent’s assets. The decedent’s assets will fall into one of two categories: probate assets and non-probate assets.

Probate assets are defined as all of the real and personal property owned by the decedent that does not pass by operation of law or by contract upon the decedent’s death to the estate. These assets pass in accordance with the decedent’s will or the intestate statutes. Non-probate assets are generally the assets that do not pass by the terms of the decedent’s will or intestate statutes, but are governed by contract or operation of law (e.g., assets with beneficiary designations such as life insurance policies, accounts made payable on death, and qualified plans, or property that is owned as joint tenants with right of survivorship or as tenants by the entirety). In addition, assets that are titled in the name of a revocable trust are not considered part of the probate estate.

The personal representative will want to have documentation on every probate asset (and may also need information regarding the non-probate assets if an estate tax return is required). This includes deeds to all of the real properties owned by the decedent, copies of life insurance policies, titles to vehicles, and bank and brokerage account statements.

Many times, the personal representative will be unfamiliar with the decedent’s assets and liabilities. In those instances, the personal representative can obtain this information by reviewing the decedent’s past tax returns, bank and brokerage statements, credit report, and other personal information that can be found at the decedent’s residence and safe deposit box. The personal representative should also complete a change of address form with the U.S. Postal Service to redirect all of the decedent’s mail to the address of the personal representative.

F. Record Keeping. One of the most important aspects of the personal representative’s duties is accurate and thorough record keeping. The personal representative is required to account to the Commissioner, the estate’s creditors, and beneficiaries for the personal representative’s actions. The personal representative should develop a system where-by the personal representative keeps records of all estate transactions, including all funds collected, disbursed and distributed. The personal representative should also have supporting documentation for each transaction. The administration of the estate should be managed like a business, and the personal representative should never commingle the personal representative’s funds with that of the estate.

G. Valuation of Assets. The personal representative is required to determine the value of the estate’s assets as of the decedent’s date of death. Not only will this information need to be reported on the Inventory which is filed with the Commissioner, but it will establish the income tax basis of each asset and assist the personal representative with determining if an U.S. estate tax return should be filed.

H. Inventory. The personal representative is required to file the Inventory with the Commissioner within four (4) months after the personal representative’s date of qualification.34 The Commissioner ensures that the Inventories are in proper form and once approved, records them with the clerk of court.35

The Inventory lists all of the decedent’s assets under the personal representative’s control and supervision, the decedent’s interest in any multiple party account in banks or credit unions,36 all Virginia real property over which the personal representative has the power of sale, all Virginia real property where the personal representative does not have the power of sale, and real property located outside of Virginia.37 The personal representative will report all of the requested asset information, as well as each asset’s corresponding value. The value of each asset is its market value as of the decedent’s date of death.38

If the personal representative discovers additional assets after the personal representative has filed the Inventory, the after discovered assets must be reported to the Commissioner within four (4) months of discovery.39 The personal representative may file (i) an amended Inventory listing all of the estate assets; or(ii) an additional Inventory listing the after discovered assets.40 If the personal representative receives permission from the Commissioner, the personal representative may be able to report the after discovered assets on the estate’s Accounting as opposed to filing an amended or supplemental Inventory.41

Failure to file the Inventory will cause the Commissioner to issue a summons to show cause to the personal representative.42 If the personal representative does not respond to the summons by filing the Inventory within thirty (30) days of the date of the summons, the Commissioner is required to advise the court of the matter.43 Once the matter is referred to the court, the personal representative may be subject to fines, and if the personal representative still fails to file the Inventory, may be held in contempt ofcourt.44

I. Accountings. The personal representative must account to the Commissioner for the estate transactions from the date of qualification through the final distribution of the estate’s assets. The personal representative is responsible for reporting the estate transactions during each accounting period and providing supporting documentation for each such transaction.45 The first Accounting is filed with the Commissioner within sixteen (16) months of the personal representative’s date of qualification. The first Accounting period will cover the transactions for the first twelve (12) months from the personal representative’s date of qualification. Subsequent Accountings are filed every twelve (12) months thereafter.

The Commissioner reviews Accountings to make sure that all of the assets reported on the Inventory are accounted for by the personal representative. The Commissioner will confirm that the personal representative has supplied proper supporting documentation for each disbursement from the estate,46 and that the personal representative has abided by the terms of the decedent’s will or the intestacy statutes for the distribution of the estate. If a transaction is not supported by sufficient documentation, the Commissioner will request the personal representative supply additional information.

The Commissioner will also ensure that the personal representative’s fiduciary compensation is reasonable and not excessive under Virginia law. A personal representative is entitled to reasonable compensation for the services the personal representative performs on behalf of the estate.47 On occasion, the will provides a compensation schedule for the personal representative or directs that the personal representative be paid in accordance with a published fee schedule. If the will does not provide such direction, many jurisdictions have a published fee schedule for personal representatives which provides the amount to which they are entitled depending upon the value of estate assets. If all of the residuary beneficiaries under the will (or distributees under the intestate statutes) are also serving as the personal representatives, they are able to file a Statement in Lieu of Accounting.48 Under a Statement in Lieu, the personal representatives are not required to file an Accounting detailing every estate transaction with supporting documentation. Rather, the personal representatives state under oath that six (6) months have elapsed since qualification, all of charges against the estate have been paid, and all assets have been distributed. Once the Commissioner approves the Accounting, the Commissioner files it with the Commissioner’s report in the clerk’s office, and interested parties may file exceptions to the Accounting.The Commissioner’s report will be confirmed if no exceptions are filed within fifteen (15) days.49 If the personal representative fails to file a timely Accounting, the Commissioner may either issue a summons to show cause or file the personal representative’s name with the clerk of court who will then issue a summons.50 The personal representative maybe subject to fines and could be found in contempt ofcourt.51

III. TAXES

A. Individual Income Tax Return. The personal representative is responsible for filing the decedent’s final lifetime Federal (IRS Form 1040) and Virginia (Virginia Form 760) income tax returns and any other state return where the decedent had income.52

B. Estate Tax Return. The personal representative will be required to file a U.S. estate tax return (IRS Form 706) if the decedent’s gross estate exceeds the applicable exclusion amount for the year in which the decedent died, even if no estate tax is due.53 The applicable exclusion amount in 2008 is $2,000,000 for U.S. domiciliaries, but is scheduled to increase to $3,500,000 in 2009.54 The gross estate for U.S. estate tax purposes includes the fair market value of all the decedent’s real, personal, and tangible property at the time of the decedent’s death, wherever situated.55 Thus, the gross estate includes both probate and non-probate assets. Fair market value is “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of the relevant facts.”56

The U.S. estate tax return must be filed and estate tax paid within nine (9) months of the decedent’s date of death.57 The return is timely filed if it is post-marked on or before the due date.58 The personal representative can request an extension of time to file and an extension of time to pay the tax by using IRS Form 4768.59 If the estate tax is not paid by the due date, any person who receives property from the gross estate will be personally liable for the payment of the estate tax up to the value of the property received.60

Virginia does not have an inheritance tax or an estate tax.61 However, if the decedent owned property in another state, an inheritance tax or estate tax return may be required.

C. Tax Year Election. As indicated previously, the estate is a separate taxpayer. The personal representative is able to elect the estate’s tax year for fiduciary income tax purposes, and is not required to keep the estate on a calendar year. If the personal representative decides to keep the estate on a calendar year,the first tax return will run from the decedent’s date of death through December 31st of that year. Subsequent returns will begin on January 1st and end on December 31st. If the personal representative elects a fiscal year, the fiscal year will begin on the decedent’s date of death and generally end on the last day of the calendar month prior to the decedent’s death. The personal representative should consider the anticipated disbursements, distributions, income, capital gains, as well as the income tax situations of the beneficiaries when determining whether to elect a calendar or fiscal year.62

D. Fiduciary Income Tax Returns. The personal representative is responsible for filing the fiduciary (IRS Form 1041 and Virginia Form 770) income tax returns for the estate and is liable for the payment of tax.63 The personal representative is required to file fiduciary income tax returns for the estate if the gross income during the estate’s tax year is $600 or more.64 The U.S. fiduciary income tax return for the estate must be filed by the fifteenth day of the fourth month after the end of the estate’s tax year. The Virginia fiduciary income tax return is due by May 1 for a calendar year estate, or if the estate uses a fiscal year, by the due date for the U.S. fiduciary income tax return for the fiscal year.65

IV. CLOSING THE ESTATE

A. Creditor Claims. The personal representative has the power to compromise, adjust, arbitrate, sue on or defend or otherwise deal with or settle the claims of an estate.66 For solvent estates, the personal representative usually deals directly with the creditor and does not involve the Commissioner. However, if the estate is insolvent or a claim is contested, the personal representative may wish to utilize the Commissioner to avoid having to litigate with numerous creditors.

Whether or not the estate is solvent, the personal representative should consider requesting a debts and demands hearing for protection. If the assets of the estate are distributed and a claim is made, the personal representative could be held personally liable if the personal representative did not use the debts and demands procedure.67

The personal representative or other interested party can ask for a debts and demands hearing by making a written request to the Commissioner and advising the Commissioner of all outstanding claims. Although debts and demands may be requested before an Accounting has been filed, many Commissioners will request the personal representative file an Accounting first.68 Once the debts and demands hearing is scheduled, the personal representative is required to provide ten (10) days written notice of the hearing to every creditor whose claim is disputed. The Commissioner will post a notice of the debts and demands hearing at the courthouse and publishes the notice in a local newspaper.

The Commissioner holds the debts and demands hearing, prepares a report to the clerk of court, and the personal representative and creditors can file exceptions. If exceptions are filed, the court schedules a hearing to adjudicate the exceptions. The report is confirmed if no exceptions are made within fifteen (15) days after the Commissioner files his report.69 The court will either confirm the report or amend it based on its ruling with respect to the exceptions.

After the report has been confirmed and at least six (6) months have elapsed since qualification, the personal representative may file a motion for the entry of a show cause order by which interested parties must appear before the court to show any reason why the court should not allow the distribution of the estate. If the court grants the motion, a date for the show cause hearing is scheduled and the show cause order is published once a week for two consecutive weeks in one or more newspapers.70 At the show cause hearing, the court decides whether or not the assets should be distributed. Once the order of distribution has been entered, the personal representative is protected from claims arising at a later date as long as he or she distributes the assets in accordance with the court order.71

B. Insolvent Estates. If the estate has insufficient assets to satisfy its creditors, Virginia law provides the order in which creditors are to be paid. If the personal representative does not follow the statutory guidelines, the personal representative may become personally liable for preferring one creditor over another.72 The statutes divide creditors into different classes, and require that claims within a class of creditors must be paid in full before payment can be made to creditors of an inferior class.73 Claims within a class are prorated if there are insufficient assets to satisfy a class of creditors. Personal representatives of insolvent estates should always use the debts and demands procedure to protect themselves from personal liability for unpaid claims.

C. Distribution. The personal representative can distribute the assets to the beneficiaries when the personal representative has satisfied (or will be able to satisfy) all of the obligations of the estate, including, but not limited to, debts of the decedent, administration expenses, and taxes. A beneficiary cannot compel distribution from an estate before the lapse of six (6) months from the personal representative’s date of qualification and must provide the personal representative a refunding bond.74 Although the personal representative can waive the refunding bond requirement, the personal representative could become personally liable for future claims against the estate.75 Of course, the personal representative should not distribute assets if the personal representative is unable to retain sufficient funds to satisfy the claims against the estate.

When the personal representative is ready to close the estate, the personal representative should ensure that all final expenses are prepaid, including the Commissioner’s fees, attorney fees, and accountant’s fees. The personal representative should request that all beneficiaries sign a receipt for distributions received by them. Once the estate has been distributed, the final Accounting can be filed with the Commissioner and the final fiduciary income tax returns should be filed with the IRS and Virginia Department of Taxation.

IV. CONCLUSION

Estate administration is a complicated and cumbersome process, especially if the personal representative is unfamiliar with Virginia law. The job of a personal representative is no easy task, and the responsibilities associated with the position should not be taken lightly. Given that the laws are always in flux and each estate has a different set of facts,every personal representative should ensure that he or she has a team of advisors to guide the personal representative through the legal process.

Lauren A. Jenkins is an associate in the McLean office of Holland & Knight LLP where she is a member of the Private Wealth Services Section. She focuses her practice in the areas of estate planning and administration. Ms. Jenkins assists clients with the planning and preparation of estate planning documents, including wills, trusts, durable powers of attorney, durable medical powers of attorney and living wills. She advises fiduciaries on estate and trust administration. Ms. Jenkins also represents beneficiaries of trusts and estates who desire separate counsel to ensure their interests are protected.

1The term “personal representative” as used in the article includes executor, executrix, administrator, and administrator c.t.a.
2Apersonal representative has a duty to the beneficiaries of the estate to act in the utmost good faith. The personal representative must “use the same measure of care which a careful and prudent person would ordinarily use under like circumstances in his own personal affairs.”Kitchens v. Throckmorton, 223 Va. 164, 172 (1982).
3Virginia Code § 64.1-136.
4Virginia Code § 64.1-136.1.
5Virginia Code § 64.1-157.
6Virginia Code § 64.1-157.
7Virginia Code § 6.1-332.1.
8Virginia Code § 64.1-87.1.
9Virginia Code § 64.1-87.1.
10Virginia Code § 64.1-87.1.
11Brown, Frank O., Jr. Virginia Practice Series Probate Handbook 2007-2008 Edition, § 2:3.
12Virginia law provides who will receive the assets if the decedent died intestate. Virginia Code § 64.1-1.
13Virginia Code § 64.1-118.
14Virginia Code § 64.1-118.
15Virginia Code §64.1-118. In that instance, the clerk will give all distributees who notified the court of their intent to qualify the opportunity to be heard.
16Virginia Code § 64.1-75.
17Virginia Code § 64.1-76. Although it is presumed that the decedent’s residence is the city or county where he or she lived before relocating to the nursing or convalescent home, this presumption can be rebutted by competent evidence.
18The personal representative should obtain the names, addresses, dates of birth, Social Security Numbers, and relationship to the decedent for all heirs and beneficiaries. This information will be needed when filing the estate and income tax returns.
19It is likely that the personal representative will not know the exact value of the estate at the time of qualification. Thus, the value of the estate for the probate tax return should be based on the information the personal representative has at the time of qualification. If the personal representative underestimates the value of the estate, the probate fees will be adjusted by the court after he or she files the Inventory.The personal representative will then be responsible for paying the outstanding balance. Virginia Code § 58.1-1717.
20Depending upon the jurisdiction, the insurance company may not need to attend the actual qualification appointment but will be able to make other arrangements with the clerk to secure the surety bond.
21Virginia Code § 6.1-18.
22Virginia Code § 64.1-121.
23Virginia Code § 26.4.
24Security will not be required from a non-Virginia resident personal representative if the value of the estate does not exceed $15,000. Anon-Virginia resident personal representative will also have to consent in writing that the a resident of Virginia will serve as his or her agent for service of process. Virginia Code § 26-59(A).
25Virginia Code § 64.1-120.
26Virginia Code § 26-8.
27Virginia Code § 64.1-57.
28Virginia Code § 64.1-57.1.
29Virginia Code § 64.1-122.2. The Notice form may be found on the Internet at http://www.courts.state.va.us.
30Virginia Code § 26-12.4.
31Virginia Code § 64.1-122.2. The statute of limitations period for an interested party’s rights and claims will not begin to run until the personal representative provides the interested party with the Notice.
32The Affidavit of Notice form may be found on the Internet at http://www.courts.state.va.us. If the Affidavit of Notice is not filed, the Commissioner cannot approve the Inventory or Accountings filed by the personal representative.
33Form SS-4 can be found on the Internet at http://www.irs.gov.
34Virginia Code § 26-12. The personal representative will not be required to file an inventory if the value of the probate estate is $15,000or less.
35Virginia Code § 26-14.
36The section does not apply to accounts held at brokerage firms.
37Virginia Code § 26-12.
38Virginia Code § 26-12.
39Virginia Code § 26-12.
40Virginia Code § 26-12.
41Virginia Code § 26-12.
42Virginia Code § 26-13.
43Virginia Code § 26-13.
44Virginia Code § 26-13.
45Virginia Code § 26-17.9.
46Virginia Code § 26-17.9.
47Virginia Code § 26-30.
48Virginia Code § 26-20.1.
49Virginia Code § 26-33.
50Virginia Code § 26-18.
51Virginia Code § 26-13.
52The tax year runs from January 1stto the date of death.
53The personal representative is responsible for the filing of the estate tax return and payment of estate taxes; however, the IRS may select any beneficiary of the estate as a personal representative to file the return. I.R.C. § 2203.
54I.R.C. § 2010.
55I.R.C. § 2031. The personal representative may use the alternate valuation date (which is six months after the date of death) to value the estate assets. I.R.C. § 2032. The personal representative may only use the alternate valuation date if the election will decrease (i) the value of the gross estate and (ii) the total tax net estate and generation-skipping transfer taxes reduced by the allowable credits. I.R.C. § 2032.
56Treas. Reg. 20.2031-1(b).
57I.R.C. § 6075. The due date for filing the return is the day of the ninth calendar month after the decedent’s death numerically corresponding to the day of the month on which the decedent’s death occurred. If there is not a numerically corresponding date, the due date is the last day of the ninth month. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next succeeding business day. Treas. Reg. § 20.6075-1.
58I.R.C. § 7502.
59If the personal representative is only extending the period of time to file the return, the payment of estimated tax must be paid within 9months of the decedent’s date of death.
60I.R.C. § 6324(a)(2).
61Virginia inheritance tax was eliminated as of January 1, 1980. The Virginia estate tax was effectively repealed on July 1, 2007.
62Brown, Section 11:2. An estate will also be required to make quarterly estimated income tax payments after two years.
63Treas. Reg. § 1.642(b)-3(b).
64I.R.C. § 6012(a). The applicable exclusion for non-U.S. domiciliaries is $60,000.
65Virginia Code § 58.1-381.
66Virginia Code § 64.1-57.
67Virginia Code § 64.1-179.
68Virginia Code § 64.1-171.
69Virginia Code § 64.1-172, 26-33.
70Virginia Code § 64.1-179.
71Virginia Code § 64.1-179.
72Virginia Code § 64.1-157.
73Virginia Code § 64.1-158.
74Virginia Code § 64.1-177.
75Virginia Code § 64.1-178.