Are you concerned about the estate of a loved one or a friend? Would you like guidance on estate or trust administration from an experienced team? Do you have questions about the probate process in Virginia? Our firm has been representing Virginia executors, beneficiaries, and creditors of estates for many years. We have an experienced legal assistant on staff who helps clients with the preparation of the inventory, accounts and other filings that must be made with the Commissioner of Accounts.
Virginia Estate Administration Process
The estate administration (probate) process is the process of transferring property from a decedent to his or her heirs and beneficiaries. In Virginia the laws and the system in place make the process fairly straightforward in most cases. The personnel in the Circuit Court Clerk’s offices in Virginia’s cities and towns are generally very knowledgeable and helpful in the qualification process. The Clerks do not give legal advice, however, and there are often easily overlooked details in the nature of the assets that the decedent owned.
When a family member or friend dies, either testate (with a will) or intestate (without a will), John L. Lumpkins counsels the fiduciary (whether an administrator, executor, curator, or even a trustee) through the entire qualification and probate process. I also represent beneficiaries and creditors who want to understand their rights and options during the probate process.
The Fiduciary Role
The word “fiduciary” is from the Latin, fiducia, meaning “trust”. In the law a fiduciary is a person or business in a role where the law recognizes them as having a heightened duty of good faith and fidelity to another. An agent under a power of attorney, an executor, an administrator, a curator and a trustee are all fiduciaries under Virginia law.
We regularly help executors and administrators navigate the Virginia probate process. Important details can sometimes be overlooked by the inexperienced executor. For instance, if an estate is insolvent Virginia and federal law have priorities as to what of the decedent’s debts are paid and in what order. Failure to follow the priority can result in personal liability for the executor or administrator. I have seen executors fail to determine whether a jointly-owned account was owned as tenants in common or with rights of survivorship. Administrators also must recognize the significant income tax ramifications of the 401(k) or retirement plan that did not have a beneficiary designated. My law firm along with an experienced CPA can help you avoid costly missteps.
Remember, if you are an executor or administrator, you have a fiduciary duty to the beneficiaries of the estate. You have to act in their interests. But you also have obligation to the creditors of the estate. Virginia law, Va Code § 64.2-5280, sets forth priorities of what an executor may pay in the case of an insolvent estate. Federal law, 31 U.S.C. § 3713, dictates that claims of the U.S. government must be paid first when an estate is insolvent – and it establishes personal liability for the executor if other claims are paid instead.
I also provide counsel to trustees, working closely with CPAs and financial advisers in making certain that the trustee understands and is in compliance with Virginia’s Uniform Trust Code and the applicable standards of investment in the trust agreement or Virginia’s Prudent Investor Rule. For clients involved in a more complex estate my involvement will be consistent with the needs of the estate or trust. Most estate and trust documents anticipate more work being done by the professional advisers to the fiduciary, and certainly the courts and the Commissioner of Accounts expect and welcome the good counsel.
My experiences and services include many years representing clients when an heir or beneficiary has been wronged by a fiduciary; when an administrator needs to petition a court for the power to sell real estate; or when a will – perhaps holographic (handwritten by the testator) – is unclear and requires a court to provide the executor aid and guidance in construing its terms. I counsel trust beneficiaries and trustees in regards to the administration of revocable living and testamentary trusts.
If the Circuit Court’s intervention is necessary in the administration of an estate, I help my clients seek redress for a wrong, secure the power to sell real estate, petition a court to interpret an unclear will or to terminate a trust (called a suit for aid and guidance), or any of the other of myriad issues that clients may face in the administration of an estate or trust.
Virginia Small Estate Act
For the genuinely “simple estate” I can offer a flat fee arrangement, typically under $1000, to do such things as evaluate the estate, answer questions, explain to the executor the probate process, and determine whether the estate is eligible for streamlined administration via Virginia’s Small Estate Act. As part of a flat fee agreement I can be “on-call” to answer questions during the process and assist as appropriate in helping the executor settle the estate.