Trusts Transfers without Qualification
Wills and Estates – Small Estates – Virginia
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Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
Under Virginia statute, where as estate is valued at less than $50,000, an interested party may, sixty (60) days after the death of the decedent, issue a small estate affidavit to collect any debts owed to the decedent.
Virginia requirements are set forth in the statutes below.
Title 64.2 – WILLS, Trusts, and Fiduciaries.
Chapter 6 – Transfers without Qualification
Article 1. Virginia Small Estate Act
§ 64.2-600. Definitions.
For the purposes of this article, the following definitions apply:
“Designated successor” means one or more successors who are designated pursuant to subdivision A 7 of § 64.2-601.
“Person” means any individual, corporation, business trust, fiduciary, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
“Small asset” means any indebtedness owed to or any asset belonging or presently distributable to the decedent, other than real property, having a value, on the date of the decedent’s death, of no more than $50,000. A small asset includes any bank account, savings institution account, credit union account, brokerage account, security, deposit, tax refund, overpayment, item of tangible personal property, or an instrument evidencing a debt, obligation, stock, or chose in action.
“Successor” means any person, other than a creditor, who is entitled under the decedent’s will or the laws of intestacy to part or all of a small asset.
1981, c. 281, § 64.1-132.1; 2010, c. 269; 2012, c. 614.
§ 64.2-601. Payment or delivery of small asset by affidavit.
A. Any person having possession of a small asset shall pay or deliver the small asset to the designated successor of the decedent upon being presented an affidavit made by all of the known successors stating:
1. That the value of the decedent’s entire personal probate estate as of the date of the decedent’s death, wherever located, does not exceed $50,000;
2. That at least 60 days have elapsed since the decedent’s death;
3. That no application for the appointment of a personal representative is pending or has been granted in any jurisdiction;
4. That the decedent’s will, if any, was duly probated;
5. That the claiming successor is entitled to payment or delivery of the small asset, and the basis upon which such entitlement is claimed;
6. The names and addresses of all successors, to the extent known;
7. The name of each successor designated to receive payment or delivery of the small asset on behalf of all successors; and
8. That the designated successor shall have a fiduciary duty to safeguard and promptly pay or deliver the small asset as required by the laws of the Commonwealth.
B. The designated successor may discharge his fiduciary duty to promptly pay or deliver the small asset to a successor who is, or is reasonably believed to be, incapacitated or under a legal disability, by paying or delivering the asset directly to the incapacitated or disabled successor or applying it for such successor’s benefit, or by:
1. Paying it to such successor’s conservator or, if no conservator exists, guardian;
2. Paying it to such successor’s custodian under the Virginia Uniform Transfers to Minors Act (§ 64.2-1900 et seq.) or custodial trustee under the Uniform Custodial Trust Act (§ 64.2-900 et seq.), and, for that purpose, creating a custodianship or custodial trust;
3. If the designated successor does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of such successor to be expended on such successor’s behalf; or
4. Managing it as a separate fund on such successor’s behalf, subject to such successor’s continuing right to withdraw the asset.
C. Any successor may be represented and bound under virtual representation provisions of §§ 64.2-714, 64.2-716, and 64.2-717 with respect to affidavits required and designations of persons to receive payment or delivery of a small asset under this article.
D. A transfer agent of any security, upon the surrender of the certificates, if any, evidencing the security, shall change the registered ownership on the books of a corporation from the decedent to the designated successor upon the presentation of an affidavit as provided in subsection A.
E. Upon the presentation of an affidavit as provided in subsection A, the designated successor may endorse or negotiate any small asset that is a check, draft, or other negotiable instrument that is payable to the decedent or the decedent’s estate.
1981, c. 281, § 64.1-132.2; 1996, c. 549; 2001, c. 368; 2006, c. 280, 2010, c. 269; 2012, c. 614; 2013, c. 68; 2015, c. 617.
§ 64.2-602. Payment or delivery of small asset valued at $25,000 or
less without affidavit.
A. Notwithstanding the provisions of § 64.2-601, any person having possession of a small asset valued at $25,000 or less may pay or deliver the small asset to any successor provided that:
1. At least 60 days have elapsed since the decedent’s death; and
2. No application for the appointment of a personal representative is pending or has been granted in any jurisdiction.
B. The designated successor shall have a fiduciary duty to safeguard and promptly pay or deliver the small asset as required by the laws of the Commonwealth to the other successors, if any.
1981, c. 281, § 64.1-132.3; 2010, c. 269; 2012, c. 614; 2014, c. 532.
§ 64.2-603. Discharge and Release of Payor.
Any person paying or delivering a small asset pursuant to § 64.2-601 or 64.2-602 is discharged and released to the same extent as if that person dealt with the personal representative of the decedent. Such person is not required to see the application of the small asset or to inquire into the truth of any statement in any affidavit presented pursuant to subsection A of § 64.2-601. If any person to whom such an affidavit is presented refuses to pay or deliver any small asset, it may be recovered, or its payment or delivery compelled, and damages may be recovered, on proof of rightful claim in a proceeding brought for that purpose by or on behalf of the person entitled thereto. Any person to whom payment or delivery of a small asset has been made is answerable and accountable therefor to any personal representative of the decedent’s estate or to any other successor having an equal or superior right.
1981, c. 281, § 64.1-132.4; 2010, c. 269; 2012, c. 614.
§ 64.2-604. Payment or delivery of small asset; funeral expenses
Thirty days after the death of a decedent upon whose estate there shall have been no application for the appointment of a personal representative pending or granted in any jurisdiction, any person holding a small asset belonging to the decedent may, at the request of a successor, pay or deliver so much of the small asset as does not exceed the amount given priority by § 64.2-528 to the undertaker or mortuary handling the funeral of the decedent, and a receipt of the payee shall be a full and final release of the payor as to such sum.
2010, c. 269, § 64.1-132.5; 2012, c. 614.
§ 64.2-605. Construction of article
The remedies provided by this article shall be in addition to, and not in exclusion of, any other remedies provided by law.
2010, c. 269, § 64.1-132.6; 2012, c. 614.
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