Virginia has a set of unique rules that allows you to avoid probate if an estate is comprised of “small” assets (defined as assets totaling under $50,000). According to VA Code § 64.2-601, when the total estate does not exceed $50,000, a successor in interest, usually an heir-at-law or a beneficiary of the Will, can collect and distribute the assets without having to go through the full probate process.
If there is a Last Will and Testament, it must be admitted to probate, but there is no requirement that an executor or personal representative be appointed, according to the Virginia Academy of Elder Law Attorneys. This is known as “recording” a Will.
To claim assets without being appointed executor or personal representative, the person collecting the assets must provide an affidavit signed by all the lawful successors in interest (usually the heirs-at-law or the beneficiaries under the Will) stating the following:
- The total estate, wherever located, does not exceed $50,000.00;
- At least 60 days have passed since the decedent’s death;
- No application for the appointment of an executor or personal representative is pending or has been granted in any jurisdiction;
- The Will, if any, has been admitted to probate;
- The claimant is entitled to collect the asset and the basis of that entitlement;
- The names and addresses of all other successors in interest;
- The name and addresses of the successor, or successors, designated to receive the assets on behalf of all the successors; and
- An acknowledgement that the claiming successor has a fiduciary duty to safeguard and promptly pay the assets to the lawful successors in accordance with Virginia law.
Assets Valued at Less than $25,000
According to VA Code § 64.2-602, if an asset is valued at less than $25,000, it is possible to pay or deliver that asset to a successor without an affidavit. The only requirements to accomplish this are the following:
- At least 60 days have elapsed since the death of the decedent; and
- No application for the appointment of personal representative is pending, or has been granted, in any jurisdiction.
Mandatory Versus Permissive
Keep in mind that VA Code § 64.2-602 is permissive while VA Code § 64.2-601 is mandatory. Many practitioners advise potential personal representatives of estates valued under $25,000 to go ahead and qualify as executor or personal representative. Doing this gives the executor or personal representative the Letter of Qualification they’ll need to collect assets and take any other action for which a Letter of Qualification may be necessary, such as accessing a safe deposit box. This does, however, require the payment of the Court’s fees and probate tax, which is typically nominal in total.
Reach Out to InSight Law for Guidance
If you have been named a personal representative of a smaller estate, it is important to take the necessary steps to get the estate settled properly, which is why you should reach out to InSight Law. Our team of legal professionals are here to help.