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Brian Mack was most helpful in explaining the "legalese" when he was working with me recently. I went in with little or no knowledge of what I was going to need, and he immediately made me feel at ease and not as skeptical as I feared this...
Brian Mack was most helpful in explaining the "legalese" when he was working with me recently. I went in with little or no knowledge of what I was going to need, and he immediately made me feel at ease and not as skeptical as I feared this was going to turn out. He was very professional and knowledgeable. I would not hesitate to recommend him for anyone looking for legal assistance.
Role of the Executor in Virginia
- posted: Jan. 18, 2021
ROLE OF THE EXECUTOR IN VIRGINIA
An Executor has been described as: “A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease.” Blacks Law Dictionary. This is a different description as opposed to an Administrator of an estate, which: “In the most usual sense of the word, is a person to whom letters of administration, that is, an authority to administer the estate of a deceased per- son, have been granted by the proper court. He resembles an executor, but, being appointed by the court, and not by the deceased, he has to give security for the due administration of the estate, by entering into a bond with sureties, called the administration bond.” Id. The main difference is the ability of the creator of the Last Will and Testament, the testator, to waive the required administration bond under certain circumstances.
The role of the Executor is incredibly important in that the Executor has the duty to begin the probate process and then manage the entire estate to completion. It is never too early to plan your estate for the role of the Executor, and to draft the Last Will and Testament in a way to assist the Executor so that they understand who is to receive your property.
RESPONSIBILITIES OF THE EXECUTOR
Your Executor has many responsibilities and tasks to complete when functioning as Executor. Your Executor must marshal all the assets of the estate, pay the valid creditors debts associated with the estate, and then wrap up the estate. Marshaling the assets includes finding all of the assets that are in the decedent’s sole name as of the date of death and getting the fair market value of those assets as of the date of death. This can be a relatively simple affair involving just going through the decedent’s property and compiling an inventory and accounting of the items. Alternatively, it could be a long and complex process that is spread out across states or even countries.
The next thing that the Executor needs to examine is the extent of the Executor’s granted powers. Sometimes the Last Will and Testament describes the powers granted to the Executor and cites the appropriate Virginia Code Section. Sometimes the Last Will and Testament is completely silent on the subject of the Executor’s powers. If the Last Will and Testament is silent, then the court needs to be petitioned to grant the Executor the authority to sell or dispose of assets in the estate beyond that which Virginia statute permits. Other times, the Last Will and Testament grants the Executor broad power, but also requires that the Executor dispose of certain property in a specific way. Typically, this involves real estate and includes either a requirement for the sale of said real estate or to deed the real estate to a specific individual. In that scenario, the Executor must follow the wishes of the testator, unless the estate is insolvent.
PROCESS AFTER BEING APPOINTED EXECUTOR
After probating (our guide on the probate process can be found here) the Last Will and Testament the Executor has many duties that must be completed in a timely fashion. The Executor has the duty to maintain contact with the Commissioner of Accounts, who is appointed to oversee and enforce the estates in the local jurisdiction as provided by Virginia law: “The commissioner of accounts shall have general supervision of all fiduciaries admitted to qualify in the court or before the clerk of the circuit court and shall make all ex parte settlements of the fiduciaries' accounts. The person appointed as a commissioner of accounts shall be a discreet and competent attorney-at-law and shall be removable at the pleasure of the court.” Virginia Code Section 64.2-1200. If the Executor does not follow the appropriate procedures, then the Executor could be called before the court to explain or receive negative consequences. Depending on the severity of the actions by the Executor, these negative consequences can include fines, removal as Executor, or even jail time.
It is highly advisable to discuss with a competent attorney when dealing with an estate. Call our office today at 540-443-9255, or email at [email protected] to discuss your estate planning needs with an experienced estate planning attorney.