Step #2: HOW TO QUALIFY IN A VIRGINIA PROBATE OFFICE
Once you have determined that someone needs to qualify as executor or administrator, you need to contact the local probate office to make an appointment to do so. Just being named in the Will, or being the sole heir, surviving spouse, or a child of decedent, does not confer upon you the full authority of the office of executor or administrator.
What Probate Office Should You Contact?
Good question, and typically it is obvious. If decedent’s residence is in a city or county, then you would contact the probate office serving that jurisdiction.
If the decedent lived in a city or county, but had moved to a nursing home outside that jurisdiction but in Virginia, you would still contact the probate office where his last residence was, even if the residence had been sold or the apartment lease had been terminated.
What is the telephone number to call at the local Probate Office?
Alexandria City: 703-746-4552
Arlington County: 703-228-4376
Fairfax County: 703-246-4153 [Press #5 to speak to a Probate Clerk]
Fauquier County: 540-422-8114
Loudoun County: 703-777-0272
Prince William County: 703-792-6187
How is a Probate Qualification Appointment made?
See the discussion under the applicable Probate Offices tab.
What should you bring to or know for your p
robate qualification appointment
[and why]?
Generally each Probate Office will provide you with guidance on what you need to bring to the appointment. Below is a list of the typical items:
a.
Original Will and Codicil(s)
Purpose: No explanation necessary. If you only have copies, you should contact an attorney.
b.
Certified Copy of Death Certificate Purpose: No explanation necessary. Some jurisdictions will accept a copy.
c.
Approximate value of the assets in decedent’s sole name Purpose: State and County Taxes assessed on this value
d.
Names, Ages and Addresses of heirs at law Purpose: This identifies who should receive certain initial notices about the probate being undertaken. Required even if there is a Will because the Will might be challenged and if thrown out by the court, the heirs at law would inherit the probate assets
.
e.
Valid Photo ID Purpose: Need to be sure you are the correct person to be qualified
f.
Payment Purpose: There are fees and taxes that will be due at time of qualification. Payment can be by cash, check or some [but not all] jurisdictions take credit cards
g.
Nonresidents will need to have a Virginia resident appointed as a resident agent Purpose: The local court and the Commissioner of Accounts have to be able to get personal service on the qualified executor or administrator. They accomplish this by having a Virginia resident appointed for that purpose if the personal representative qualified is not a Virginia resident.
FORM:
CONSENT OF NONRESIDENT FIDUCIARY TO SERVICE OF PROCESS. This Form appoints a Virginia resident to receive service of process from the courts and the Commissioner of Accounts. Please note that it does not indicate the person appointed has agreed to accept such service, or even exists at the address indicated in the Consent Form.
CAUTION: IN SOME JURISDICTIONS, AT THE REQUEST OF THE COMMISSIONER OF ACCOUNTS, A SIGNED LETTER FROM THE PERSON BEING APPOINTED MUST BE PRESENTED AT TIME OF QUALIFICATION INDICATING THEY ACCEPT THE APPOINTMENT. FAIRFAX IS ONE SUCH JURISDICTION.
h.
If decedent died in a nursing home, need the address of his residence BEFORE going to the nursing home Purpose: Need to be certain you are qualifying in the correct probate office.
i. Do you need to be bonded with surety, and if so, can you obtain a bond? Purpose: If you must be bonded with surety, then there is no point in trying to qualify if a bonding company will not write the insurance to provide that surety because the probate office has NO discretion to waive bond if bond is required by the terms of the Will or by Virginia statute. See the discussion below.
Why do Executors and Administrators have to be bonded?
What is a Bond with and without Surety?
Bonds are required to protect the beneficiaries of the Estate being probated and insure that the personal representative fulfills all of their duties in the probating of the decedent's estate.
Many Wills are written to waive the requirement of surety on the bond that an executor is required to give. That is a decision made at the time the Will is drafted, hopefully with the advice of the attorney preparing the Will. In that situation, you will give a personal bond when you qualify, essentially agreeing to be personally liable if you fail to perform your duties and the estate suffers a loss as result of that failure or breach.
For those Wills where bond is not waived, or if the executor is not a Virginia resident, or if there is no Will, then the bond posted by the executor or administrator will typically have to be underwritten through an insurance company, thereby providing surety or insurance for the proper performance of the qualified fiduciary.
Getting a bond with surety, a corporate surety bond, can pose a problem for a host of reasons. But if you must be bonded and cannot get a bond approved by a bonding company, you cannot be qualified. Therefore, it is prudent to contact a bonding company that services the Probate Office where you will be qualified in advance of your probate appointment and have them run a preliminary screening based on your social security number, employment, income and possibly a couple of other factors to see if you can be bonded. The bonding companies do pull a Vantage credit score, which is a different credit score than the FICO credit score used for personal credit. However, some common reasons a bond application is denied are: applicant is a non-USA Citizen, resides outside of USA, has a poor credit history, has no credit history, or is unemployed.