Code of Virginia

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Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
Chapter 4. Wills
10/27/2021

Article 5. Probate.

§ 64.2-443. Jurisdiction of probate of wills.

A. The circuit courts shall have jurisdiction of the probate of wills. A will shall be offered for probate in the circuit court in the county or city wherein the decedent has a known place of residence; if he has no such known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and if there is no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.

B. Where any person has become, either voluntarily or involuntarily, a patient in a nursing home, convalescent home, or similar institution due to advanced age or impaired health, the place of legal residence of the person shall be rebuttably presumed to be the same as it was before he became a patient.

Code 1950, §§ 64-72, 64-72.1; 1966, c. 330; 1968, c. 656, §§ 64.1-75, 64.1-76; 2012, c. 614.

§ 64.2-444. Clerks may probate wills.

A. The clerk of any circuit court, or any duly qualified deputy of such clerk, may admit wills to probate, appoint and qualify executors, administrators, and curators of decedents, and require and take from them the necessary bonds, in the same manner and with like effect as the circuit court.

B. The clerk shall keep an order book, in which shall be entered all orders made by him, or his deputy, in performance of his duties pursuant to subsection A, except probate orders that are recorded in the will book need not be entered in the order book.

C. All wills heretofore admitted to probate by any duly qualified deputy clerk of any circuit court are deemed to have been properly admitted to probate to the same extent as if the clerk had acted in the proceeding.

Code 1950, § 64-73; 1968, c. 656, § 64.1-77; 1973, c. 217; 2012, c. 614.

§ 64.2-445. Appeal from order of clerk.

Any person interested in the probate of the will may appeal any order entered pursuant to § 64.2-444 within six months after the entering of such an order, without giving any bond, to the circuit court whose clerk, or deputy, has made the order. Upon application for such appeal, the clerk or deputy shall enter forthwith in his order or will book an order allowing such appeal. The appeal shall be given precedence on the court's docket. The matter shall be heard de novo by the court and a copy of its final order shall be entered into the clerk's order or will book. At any time after such appeal is allowed, the court may enter an order for the protection of the persons interested in the probate of the will or for the protection or preservation of any property involved as it finds necessary.

Code 1950, § 64-74; 1968, c. 656, § 64.1-78; 2012, c. 614.

§ 64.2-446. Motion for probate; process against persons interested in probate.

A. A person offering, or intending to offer, to a circuit court or to the clerk of the circuit court a will for probate, may request that the clerk of such court summon any person interested in the probate of the will to appear to show cause why the will should not be admitted to probate. Upon such request, the clerk shall, or in the absence of such request the court may, summon all persons interested in the probate of the will to appear to show cause why the will should not be admitted to probate.

B. The court shall hear the motion to admit the will to probate when all persons interested in the probate of the will have been summoned or otherwise appear as parties. Upon the request of any person interested in the probate of the will, the court shall order a trial by jury to ascertain whether any paper produced is the will of the decedent. The court shall enter a final order as to the probate.

C. In the absence of a request that the clerk summon any person interested in the probate of the will to appear to show cause why the will should not be admitted to probate, the court in which the will is offered for probate may proceed to admit or reject the will without summoning any party.

Code 1950, §§ 64-75, 64-76, 64-78, 64-79, 64-81; 1968, c. 656, §§ 64.1-79, 64.1-80, 64.1-82, 64.1-83, 64.1-85; 2012, c. 614.

§ 64.2-447. Use of depositions.

A. The deposition of a witness who subscribed a will attesting that the will is the will of the testator, or in the case of a holographic will, a witness attesting that the will is wholly in the handwriting of the testator, may be admitted as evidence to prove the will if the witness (i) resides outside of the Commonwealth or (ii) resides in the Commonwealth but is unable to testify for any reason before the court or clerk where the will is offered. For the purpose of taking such depositions, the person offering the will for probate shall be permitted to withdraw the will temporarily, leaving an attested copy with the court or clerk, or the clerk may give such person a certified copy of the will.

B. The deposition of such witnesses shall be taken and certified in accordance with § 8.01-420.4 and the Rules of Supreme Court of Virginia, except that no notice of the time and place of taking the deposition need be given unless the probate is opposed by some person interested in the probate of the will. Such deposition may be taken prior to the time that the will is offered for probate and may be filed at the same time the will is offered for probate, provided, that if probate is opposed by some person interested in the probate of the will, such person shall have the right to examine such witness.

Code 1950, § 64-83; 1966, c. 314; 1968, c. 656, § 64.1-87; 1981, c. 183; 2012, c. 614.

§ 64.2-448. Complaint to impeach or establish a will; limitation of action; venue.

A. A person interested in the probate of the will who has not otherwise been before the court or clerk in a proceeding to probate the will pursuant to § 64.2-444 or in an ex parte proceeding to probate the will pursuant to subsection B of § 64.2-446 may file a complaint to impeach or establish the will within one year from the date of the order entered by the court in exercise of its original jurisdiction or after an appeal of an order entered by the clerk, or, if no appeal from an order entered by the clerk is taken, from the date of the order entered by the clerk.

B. A person interested in the probate of the will who had been proceeded against by an order of publication pursuant to subsection B of § 64.2-449 may file a complaint to impeach or establish the will within two years from the date of the order entered by the court in the exercise of its original jurisdiction, unless he actually appeared as a party or had been personally served with a summons to appear.

C. A person interested in the probate of the will who has not otherwise been before the court and who was a minor at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person reaches the age of maturity or is judicially declared emancipated.

D. A person interested in the probate of the will who has not otherwise been before the court and who was incapacitated at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person is restored to capacity.

E. Upon the filing of a complaint to impeach or establish the will pursuant to this section, the court shall order a trial by jury to ascertain whether what was offered for probate is the will of the testator. The court may require all testamentary papers of the testator be produced and direct the jury to ascertain whether any paper produced is the will of the testator. The court shall decide whether to admit the will to probate.

F. The venue for filing a complaint to impeach or establish the will shall be as specified in subdivision 7 of § 8.01-261.

G. Subject to the provisions of § 8.01-428, a final order determining whether to admit a will to probate bars any subsequent complaint to impeach or establish a will.

Code 1950, §§ 64-80, 64-84 through 64-86; 1968, c. 656, §§ 64.1-84, 64.1-88 through 64.1-90; 1972, c. 825; 1977, c. 624; 1996, c. 58; 2012, c. 614.

§ 64.2-449. Procedure in probate proceedings.

A. In every probate proceeding, the court or clerk may require all testamentary papers of the testator be produced and may compel the production of the will of a testator that is in the custody of any person.

B. A summons may be served by an order of publication on any person interested in the probate of the will in accordance with § 8.01-316.

C. The court may appoint a guardian ad litem for any person interested in the probate of the will in accordance with § 8.01-9.

D. The record of the testimony given by witnesses in court on the motion to admit a will to probate and any out of court depositions of witnesses who cannot be produced at a jury trial may be admitted as evidence and given such weight as the jury deems proper.

Code 1950, §§ 64-77, 64-82, 64-87; 1968, c. 656, §§ 64.1-81, 64.1-86, 64.1-91; 2012, c. 614; 2015, c. 631.

§ 64.2-450. Probate of copy of will proved outside the Commonwealth; authenticated copy.

When a will relative to an estate within the Commonwealth has been proved in another jurisdiction, an authenticated copy of the will and the certificate of probate of the will may be offered for probate in the Commonwealth, and there shall be a rebuttable presumption that the will was duly executed and admitted to probate as a will of personal estate in the jurisdiction of the testator's domicile and the circuit court, or the clerk of such court, where it is offered shall admit such copy to probate as a will of personal estate in the Commonwealth. If such copy indicates that the will was admitted to probate in a court of another jurisdiction and was so executed as to be a valid will of real estate in the Commonwealth by the law of the Commonwealth, such copy may be admitted to probate as a will of real estate. An authenticated copy of any will which has been self-proved under the laws of another state shall, when offered with its authenticated certificate of probate, be admitted to probate as a will of personal estate and real estate.

Code 1950, § 64-88; 1968, c. 656, § 64.1-92; 1977, c. 249; 1980, c. 264; 2012, c. 614.

§ 64.2-451. Appointment of curator; when made; his duties.

The court or the clerk of such court, or his duly qualified deputy, may appoint a curator of the estate of a decedent during a contest about the decedent's will, during the infancy or in the absence of an executor, or until administration of the estate be granted and may require the curator to give a bond in a reasonable penalty. The curator shall ensure that the estate is not wasted before the qualification of an executor or administrator, or before such estate lawfully comes into possession of such executor or administrator. The curator may demand, sue for, recover, and receive the decedent's personal estate and all debts due to the testator. The curator may lease or receive the rents and profits of any real estate that the decedent possessed when he died. The curator shall pay debts, to the extent that there are sufficient assets to do so in the order of payment prescribed by law, and may be sued in the same manner as an executor or administrator. Upon the qualification of an executor or administrator, the curator shall account for and pay and deliver to him such estate as he controls or may be liable for.

Code 1950, § 64-89; 1968, c. 656, § 64.1-93; 2012, c. 614.

§ 64.2-452. How will may be made self-proved; affidavits of witnesses.

A will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of the Commonwealth or the laws of the state where acknowledgment occurred, or before an officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed, and evidenced by the officer's certificate, attached or annexed to the will. The officer's certificate shall be substantially as follows in form and content:

STATE OF VIRGINIA

COUNTY/CITY OF _____________________

Before me, the undersigned authority, on this day personally appeared _____________________, _____________________, and _____________________, known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, _____________________, the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of said will, and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory.

________________________________________
Testator

________________________________________
Witness

________________________________________
Witness

Subscribed, sworn and acknowledged before me by_____________________, the testator, and subscribed and sworn before me by_____________________ and _____________________, witnesses, this __________ day of _______________, A.D., __________.

SIGNED ________________________________________

________________________________________
(OFFICIAL CAPACITY OF OFFICER)

The affidavits of any such witnesses taken as provided by this section, whenever made, shall be accepted by the court as if it had been taken ore tenus before such court, notwithstanding that the officer did not attach or affix his official seal thereto. Any codicil that is self-proved under the provisions of this section that, by its terms, expressly confirms, ratifies, and republishes a will except as altered by the codicil shall have the effect of self-proving the will whether or not the will was so executed originally.

1972, c. 116, § 64.1-87.1; 1977, c. 333; 1979, c. 322; 1983, c. 83; 1985, c. 429; 1986, c. 524; 1990, c. 64; 2012, c. 614.

§ 64.2-453. How will may be made self-proved; acknowledgment of witnesses.

A will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment thereof by the testator and the attesting witnesses, each made before an officer authorized to administer oaths under the laws of the Commonwealth or the laws of the state where the acknowledgment occurred, or before an officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed, and evidenced by the officer's certificate, attached or annexed to the will. The officer's certificate shall be substantially as follows in form and content:

STATE OF VIRGINIA

CITY/COUNTY OF _____________________

Before me, the undersigned authority, on this day personally appeared _____________________, _____________________, and _____________________, known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, _____________________, the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of said will, and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory.

Sworn and acknowledged before me by _____________________, the testator, and _____________________ and _____________________, witnesses, this __________ day of _______________ A.D.,__________.

SIGNED ________________________________________

________________________________________
(OFFICIAL CAPACITY OF OFFICER)

Any codicil that is self-proved under the provisions of this section that, by its terms, expressly confirms, ratifies, and republishes a will except as altered by the codicil shall have the effect of self-proving the will whether or not the will was so executed originally.

1983, c. 83, § 64.1-87.2; 1985, c. 429; 1990, c. 64; 2012, c. 614.

§ 64.2-454. Appointment of administrator for prosecution of action for personal injury or wrongful death against or on behalf of estate of deceased resident or nonresident.

An administrator may be appointed in any case in which it is represented that either a civil action for personal injury or death by wrongful act, or both, arising within the Commonwealth is contemplated against or on behalf of the estate or the beneficiaries of the estate of a resident or nonresident of the Commonwealth who has died within or outside the Commonwealth if at least 60 days have elapsed since the decedent's death and an executor or administrator of the estate has not been appointed under § 64.2-500 or 64.2-502, solely for the purpose of prosecution or defense of any such actions, by the clerk of the circuit court in the county or city in which jurisdiction and venue would have been properly laid for such actions if the person for whom the appointment is sought had survived. An administrator appointed pursuant to this section may prosecute actions for both personal injury and death by wrongful act.

If a fiduciary has been appointed in a foreign jurisdiction, the fiduciary may qualify as administrator. The appointment of a fiduciary in a foreign jurisdiction shall not preclude a resident or nonresident from qualifying as an administrator for the purposes of maintaining a wrongful death action pursuant to § 8.01-50 or a personal injury action in the Commonwealth.

A resident and nonresident may be appointed as coadministrators.

1970, c. 475, § 64.1-75.1; 2001, c. 376; 2003, c. 265; 2012, c. 614; 2014, c. 528; 2015, cc. 124, 129, 130.