Code of Virginia

Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
5/27/2019

Subtitle II. Wills and Decedents' Estates.

Chapter 2. Descent and Distribution.

§ 64.2-200. Course of descents generally; right of Commonwealth if no other heir.

A. The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:

1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent's children and their descendants, and one-third of the estate descends and passes to the surviving spouse.

2. If there is no surviving spouse, then the estate descends and passes to the decedent's children and their descendants.

3. If there is none of the foregoing, then to the decedent's parents, or to the surviving parent.

4. If there is none of the foregoing, then to the decedent's brothers and sisters, and their descendants.

5. If there is none of the foregoing, then one-half of the estate descends and passes to the paternal kindred and one-half descends and passes to the maternal kindred of the decedent in the following course:

a. To the decedent's grandparents, or to the surviving grandparent.

b. If there is none of the foregoing, then to the decedent's uncles and aunts, and their descendants.

c. If there is none of the foregoing, then to the decedent's great-grandparents.

d. If there is none of the foregoing, then to the brothers and sisters of the decedent's grandparents, and their descendants.

e. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.

B. If there are either no surviving paternal kindred or no surviving maternal kindred, the whole estate descends and passes to the paternal or maternal kindred who survive the decedent. If there are neither maternal nor paternal kindred, the whole estate descends and passes to the kindred of the decedent's most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse's death, as if such spouse had died intestate and entitled to the estate.

C. If there is no other heir of a decedent's real estate, such real estate is subject to escheat to the Commonwealth in accordance with Chapter 10 (§ 55-168 et seq.) of Title 55.

Code 1950, § 64-1; 1956, c. 109; 1968, c. 656, § 64.1-1; 1977, c. 474; 1982, c. 304; 1985, c. 189; 1990, c. 831; 2012, c. 614.

§ 64.2-201. Distribution of personal estate; right of Commonwealth if no other distributee.

A. The surplus of the personal estate or any part thereof of any decedent, after payment of funeral expenses, charges of administration, and debts, and subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3, not effectively disposed of by will passes by intestate succession and is distributed to the same persons, and in the same proportions, as real estate descends pursuant to § 64.2-200.

B. If there is no other distributee of a decedent's personal estate, such personal estate shall accrue to the Commonwealth.

Code 1950, §§ 64-11, 64-12; 1968, c. 656, §§ 64.1-11, 64.1-12; 1978, c. 647; 1981, c. 580; 1982, c. 304; 1983, c. 320; 2012, c. 614.

§ 64.2-202. When persons take per capita and when per stirpes; collaterals of the half blood.

A. A decedent's estate, or each half portion of such estate when division is required by subdivision A 5 of § 64.2-200, shall, except when otherwise provided in subdivision A 1 of § 64.2-200, be divided into as many equal shares as there are (i) heirs and distributees who are in the closest degree of kinship to the decedent and (ii) deceased persons, if any, in the same degree of kinship to the decedent who, if living, would have been heirs and distributees and who left descendants surviving at the time of the decedent's death. One share of the estate or half portion thereof shall descend and pass to each such heir and distributee and one share shall descend and pass per stirpes to such descendants.

B. Notwithstanding the provisions of subsection A, collaterals of the half blood shall inherit only half as much as those of the whole blood.

Code 1950, §§ 64-2, 64-3; 1968, c. 656, §§ 64.1-2, 64.1-3; 1986, c. 305; 2012, c. 614.

§ 64.2-203. Inheritance rights of certain individuals.

A. Except as otherwise provided by law, no person is barred from inheriting because such person or a person through whom he claims his inheritance is or has been an alien.

B. A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle him to the larger share.

Code 1950, § 64-4; 1968, c. 656, § 64.1-4; 1978, c. 647, § 64.1-6.1; 2012, c. 614.

§ 64.2-204. Afterborn heirs.

Relatives of the decedent conceived before his death but born thereafter, and children resulting from assisted conception born after the decedent's death who are determined to be relatives of the decedent as provided in Chapter 9 (§ 20-156 et seq.) of Title 20, shall inherit as if they had been born during the lifetime of the decedent.

1978, c. 647, § 64.1-8.1; 1994, c. 919; 2012, c. 614.

§ 64.2-205. Right of entry or action for land not affected by descent cast.

The right to make entry on or bring an action to recover land is not tolled or defeated by descent cast.

Code 1950, § 64-10; 1968, c. 656, § 64.1-10; 2012, c. 614.

§ 64.2-206. Advancements brought into hotchpot.

When the descendant of a decedent receives any property as an advancement from the decedent during the decedent's lifetime or under the decedent's will, and the descendant, or any descendant of his, is also to receive a distribution of any portion of the decedent's intestate estate, real or personal, the advancement shall be brought into hotchpot with the intestate estate and the descendant is entitled to his proper portion of the entire intestate estate, including such advancement.

Code 1950, § 64-17; 1968, c. 656, § 64.1-17; 2012, c. 614.

Chapter 3. Rights of Married Persons.

Article 1. Elective Share of Surviving Spouse of Decedent Dying Before January 1, 2017.

§ 64.2-300. Applicability; definitions.

A. The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying before January 1, 2017.

B. As used in this article, the terms "estate" and "property" shall include insurance policies, retirement benefits exclusive of federal social security benefits, annuities, pension plans, deferred compensation arrangements, and employee benefit plans to the extent owned by, vested in, or subject to the control of the decedent on the date of his death or the date of an irrevocable transfer by him during his lifetime. All such insurance policies and other benefits are included in the terms "estate" and "property" notwithstanding the presence of language contained in any statute otherwise providing that neither they nor their proceeds shall be liable to attachment, garnishment, levy, execution, or other legal process or be seized, taken, appropriated, or applied by any legal or equitable process or operation of law or any other such similar language.

1990, c. 831, §§ 64.1-16.1, 64.1-16.2; 1992, cc. 617, 647; 1998, c. 234; 1999, c. 38; 2007, c. 308; 2012, c. 614; 2016, cc. 187, 269.

§ 64.2-301. Dower or curtesy abolished.

The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.

The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.

1990, c. 831, § 64.1-19.2; 2012, c. 614.

§ 64.2-302. When and how elective share may be claimed by surviving spouse.

A. A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent's will or (ii) the decedent dies intestate.

B. The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent's augmented estate within six months from the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55.

C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent's domicile at death.

Code 1950, § 64-13; 1968, c. 656, § 64.1-13; 1990, c. 831; 1995, c. 211; 2012, c. 614.

§ 64.2-303. Extension of time until after determination of action for construction of will or extent of augmented estate.

If (i) a will is of doubtful import as to the amount or value of the property the surviving spouse of the decedent is to receive thereunder or (ii) the composition or value of the augmented estate is uncertain, and an action to resolve such issues is pending, the court in which the action is pending shall, upon the application of the surviving spouse made within the six-month period set forth in § 64.2-302, enter an order extending the time within which the surviving spouse may make a claim for an elective share. Such additional period within which to make a claim for an elective share shall not exceed 90 days after a final order has been entered in such suit, either by a trial court or any appellate court to which it is appealed.

Code 1950, § 64-14; 1968, c. 656, § 64.1-14; 1990, c. 831; 2012, c. 614.

§ 64.2-304. Rights upon claiming an elective share.

If a claim for an elective share is made, the surviving spouse is entitled to (i) one-third of the decedent's augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent's augmented estate if the decedent left no surviving children or their descendants. The surviving spouse is entitled to interest at the legal rate specified in § 6.2-301 from the date of the decedent's death to the date of satisfaction of the elective share.

Code 1950, § 64-16; 1968, c. 656, § 64.1-16; 1978, c. 647; 1986, c. 526; 1990, c. 831; 2012, c. 614.

§ 64.2-305. Augmented estate; exclusions; valuation.

A. The augmented estate means the decedent's entire estate passing by will or intestate succession, real and personal, after payment of allowances and exemptions under Article 2 (§ 64.2-309 et seq.) of this chapter, funeral expenses, charges of administration that shall not include federal or state transfer taxes, and debts, and to which is added the following amounts:

1. The value of property, other than tangible personal property received by gift and the proceeds thereof, owned or acquired by the surviving spouse at the decedent's death, to the extent the property is derived from the decedent by any means other than by will or intestate succession without full consideration in money or money's worth;

2. The value of property, other than tangible personal property received by gift and the proceeds thereof, derived by the surviving spouse from the decedent without full consideration in money or money's worth by any means other than by will or intestate succession, and transferred by the surviving spouse at any time during the marriage to a person other than the decedent, which would have been includable in the surviving spouse's augmented estate if the surviving spouse had predeceased the decedent; and

3. The value of property transferred to anyone other than a bona fide purchaser by the decedent at any time during the marriage to the surviving spouse, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive full consideration in money or money's worth for the transfer, if the transfer was any of the following types:

a. Any transfer under which the decedent retained for his life, for any period not ascertainable without reference to his death, or for any period which does not in fact end before his death, the possession or enjoyment of, or the right to income from, the property;

b. Any transfer to the extent that the decedent retained for his life, for any period not ascertainable without reference to his death, or for any period which does not in fact end before his death, the power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for his own benefit;

c. Any transfer whereby property is held at the time of the decedent's death by the decedent and another with right of survivorship; or

d. Any transfer made to or for the benefit of a donee within the calendar year of the decedent's death or any of the five preceding calendar years to the extent that the aggregate value of the transfers to the donee exceeds the amount specified in § 2503(b) of the Internal Revenue Code of 1986, as amended, for that calendar year, without regard to whether the federal gift tax exclusion applies to the transfer.

B. Notwithstanding the provisions of this section, the augmented estate shall not include (i) the value of any property transferred by the decedent during marriage with the written consent or joinder of the surviving spouse; (ii) the value of any property, its income, or proceeds received by the decedent, before or during the marriage to the surviving spouse, by gift, will, intestate succession, or any other method or form of transfer to the extent it was (a) received without full consideration in money or money's worth from a person other than the surviving spouse, and (b) maintained by the decedent as separate property; (iii) any transfer made to anyone other than the surviving spouse prior to January 1, 1991, to the extent that such transfer was irrevocable on that date; or (iv) the value of any property excluded from the augmented estate pursuant to § 64.2-317.

C. Property is valued as of the decedent's death, except that property irrevocably transferred during the lifetime of the decedent is valued as of the date the transferee came into possession or enjoyment of the property if such date precedes the date of the decedent's death.

1. Life estates and remainder interests are valued in the manner prescribed in Article 2 (§ 55-269.1 et seq.) of Chapter 15 of Title 55, and deferred payments and estates for years are discounted to present value using the interest rate specified in § 55-269.1.

2. The value of an insurance policy that is irrevocably transferred during the lifetime of a decedent is the cost of a comparable policy on the date of the transfer or, if such a policy is not readily available, the policy's interpolated terminal reserve. The value of any premiums paid on an insurance policy owned by another person is only the amount of the premiums paid and not the insurance purchased or maintained with such premiums.

3. An initial interest in property owned as a joint tenant with survivorship is valued at the time the interest is acquired, and a further interest received upon the death of a cotenant is valued at the time of the cotenant's death. Property owned jointly by persons married to each other is rebuttably presumed to have been acquired with contributions of equal value by each tenant. The mere creation of an indebtedness secured by jointly owned property is not a contribution to its acquisition, but any satisfaction of such an indebtedness is a contribution. An interest in a tenancy by the entireties is valued as if it were an interest in a joint tenancy with survivorship. Joint accounts in financial institutions are valued in accordance with the provisions of Article 2 (§ 6.2-604 et seq.) of Chapter 6 of Title 6.2.

1990, c. 831, § 64.1-16.1; 1992, cc. 617, 647; 1998, c. 234; 1999, c. 38; 2007, c. 308; 2012, c. 614; 2014, c. 532.

§ 64.2-306. Charging spouse with the value of property received; liability of others for balance of elective share.

A. In determining the elective share, the value of property included in the augmented estate that passes or has passed to the surviving spouse, or that would have passed to the spouse but was disclaimed, is applied first to satisfy the elective share in order to reduce any contributions due from other recipients of transfers included in the augmented estate.

B. The recipients of the remaining property of the augmented estate are liable to contribute the balance of the elective share and any interest thereon in proportion to the value of their interests.

C. The only persons subject to contribution to make up the elective share are (i) an original transferee from or appointee of the decedent, and any subsequent gratuitous inter vivos donee or person claiming by will or intestate succession, to the extent such person has the property or its proceeds on or after the date of the decedent's death, and (ii) a fiduciary, as to the property under the fiduciary's control at or after the time a fiduciary receives notice that a surviving spouse has claimed an elective share in the decedent's estate. A corporate fiduciary shall not be considered to have notice until it receives notice at its address as shown in the decedent's estate papers in the clerk's office or, if there are no such papers or no address is shown therein, at the office of its registered agent.

No other party is subject to contribution to make up the elective share even though the party makes a payment or transfers an item of property or other benefit to any person with actual knowledge that a surviving spouse has claimed an elective share in the decedent's estate.

D. Upon the petition of the surviving spouse, the decedent's personal representative, or any party in interest, the court having jurisdiction over the administration of the decedent's estate shall determine the amount of the elective share and the ratable portion of the elective share attributable to each person liable to contribution. Such petition may be brought against fewer than all persons from whom relief could be sought, but no person is subject to contribution in any amount greater than that which he would have been if relief had been secured against all persons subject to contribution.

E. Within 30 days after the court's determination of the contributions due under subsection D becomes final and not subject to further appeal, any person liable to the surviving spouse for contribution may file with the court a written statement specifying any of the following methods for satisfying his contribution and interest liability:

1. Conveyance to the surviving spouse of a portion of the property included in the augmented estate equal in value to his liability on the date the contribution statement is filed, or if, on the date of filing, the value of the property included in the augmented estate is less than his liability, conveyance to the surviving spouse of the entire property included in the augmented estate in full satisfaction;

2. Payment of the value of his liability in cash or, upon agreement of the surviving spouse, other property; or

3. Partial conveyance and partial payment under subdivisions 1 and 2, provided that the value conveyed and paid is equal to his liability.

In the event a contribution statement is not filed within 30 days, the court shall enter an order specifying the method by which a person's liability to the surviving spouse shall be satisfied.

1990, c. 831, § 64.1-16.2; 1992, cc. 617, 647; 2007, c. 308; 2012, c. 614.

§ 64.2-307. Rights in family residence.

Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent's augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.

1990, c. 831, § 64.1-16.4; 2012, c. 614.

§ 64.2-308. Statutory rights barred by desertion or abandonment.

A. If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

B. If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child's estate by intestate succession.

1990, c. 831, § 64.1-16.3; 1992, c. 795; 2012, c. 614.

Article 1.1. Elective Share of Surviving Spouse of Decedent Dying on or After January 1, 2017.

§ 64.2-308.1. Applicability; definitions.

A. The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying on or after January 1, 2017.

B. As used in this article, unless the context requires a different meaning:

"Decedent's non-probate transfers to others" means the amounts that are included in the augmented estate under § 64.2-308.6.

"Fractional interest in property held in joint tenancy with the right of survivorship," whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.

"Marriage," as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.

"Non-adverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or non-exercise of the power that he possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

"Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation.

"Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not he then had the capacity to exercise the power, held a power to create a present or future interest in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.

"Property" includes values subject to a beneficiary designation.

"Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.

"Transfer," as it relates to a transfer by or of the decedent, includes (i) an exercise or release of a presently exercisable general power of appointment held by the decedent, (ii) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (iii) an exercise, release, or lapse of a general power of appointment that the decedent created in himself and of a power described in subdivision 2 b of § 64.2-308.6 that the decedent conferred on a non-adverse party.

2016, cc. 187, 269.

§ 64.2-308.2. Dower or curtesy abolished.

The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.

The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.

2016, cc. 187, 269.

§ 64.2-308.3. Elective share amount; effect of election on statutory benefits; non-domiciliary.

A. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

B. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.

C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

2016, cc. 187, 269.

§ 64.2-308.4. Composition of the augmented estate; marital property portion.

A. Subject to § 64.2-308.9, the value of the augmented estate, to the extent provided in §§ 64.2-308.5, 64.2-308.6, 64.2-308.7, and 64.2-308.8, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:

1. The decedent's net probate estate;

2. The decedent's non-probate transfers to others;

3. The decedent's non-probate transfers to the surviving spouse; and

4. The surviving spouse's property and non-probate transfers to others.

B. The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection A multiplied by the following percentage:

If the decedent and the spouse were married to each other: The percentage is:

aLess than 1 year3%
a1 year but less than 2 years6%
b2 years but less than 3 years12%
c3 years but less than 4 years18%
d4 years but less than 5 years24%
e5 years but less than 6 years30%
f6 years but less than 7 years36%
g7 years but less than 8 years42%
h8 years but less than 9 years48%
i9 years but less than 10 years54%
j10 years but less than 11 years60%
k11 years but less than 12 years68%
l12 years but less than 13 years76%
m13 years but less than 14 years84%
n14 years but less than 15 years92%
o15 years or more100%

2016, cc. 187, 269.

§ 64.2-308.5. Decedent's net probate estate.

The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses (excluding federal or state transfer taxes), homestead allowance, family allowances, exempt property, and enforceable claims.

2016, cc. 187, 269.

§ 64.2-308.6. Decedent's non-probate transfers to others.

The value of the augmented estate includes the value of the decedent's non-probate transfers to others, not included under § 64.2-308.5, of any of the following types, in the amount provided respectively for each type of transfer:

1. Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent's death. Property included under this category consists of:

a. Property over which the decedent, alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.

b. The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse.

c. The decedent's ownership interest in property or accounts held in Payable on Death or Transfer on Death designations or co-ownership registration with the right of survivorship. The amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

d. Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

2. Property transferred in any of the following forms by the decedent during marriage:

a. Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse.

b. Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a non-adverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent's estate, or creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.

3. Property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:

a. Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under subdivision 1 a, b, or c, or under subdivision 2, if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the property that would have been included under those subdivisions if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse. As used in this subdivision, "termination," with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in subdivision 1 a, "termination" occurs when the power terminated by exercise or release, but not otherwise.

b. Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under subdivision 1 d had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

c. Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse. The amount included is the value of the transferred property to the extent the transfers to any one donee in either of the two years next preceding the date of the decedent's death exceeded the amount excludable from taxable gifts under 26 U.S.C. § 2503(b), or its successor, on the date of the gift.

2016, cc. 187, 269.

§ 64.2-308.7. Decedent's non-probate transfers to the surviving spouse.

Excluding property passing to the surviving spouse under the federal social security system, the value of the augmented estate includes the value of the decedent's non-probate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:

1. The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;

2. The decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, or with Payable on Death or Transfer on Death designations to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and

3. All other property that would have been included in the augmented estate under subdivision 1 or 2 of § 64.2-308.6 had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.

2016, cc. 187, 269.

§ 64.2-308.8. Surviving spouse's property and non-probate transfers to others.

A. Except to the extent included in the augmented estate under § 64.2-308.5 or 64.2-308.7, the value of the augmented estate includes the value of:

1. Property that was owned by the decedent's surviving spouse at the decedent's death, including:

a. The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;

b. The surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and

c. Property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal social security system.

2. Property that would have been included in the surviving spouse's non-probate transfers to others, other than the spouse's fractional and ownership interests included under subdivision 1 a or b, had the spouse been the decedent.

B. Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subdivision A 1 a or b, the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subdivision A 2, proceeds of insurance that would have been included in the spouse's non-probate transfers to others under subdivision 1 d of § 64.2-308.6 are not valued as if the spouse were deceased.

C. The value of property included under this section is reduced by enforceable claims against the surviving spouse.

2016, cc. 187, 269.

§ 64.2-308.9. Exclusions, valuation, and overlapping application.

A. The value of any property is excluded from the decedent's non-probate transfers to others:

1. To the extent that the decedent received adequate and full consideration in money or money's worth for a transfer of the property; or

2. If the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.

B. 1. The value of any property otherwise included under § 64.2-308.5, 64.2-308.6, or 64.2-308.7, and its income or proceeds, is excluded from the decedent's net probate estate, decedent's non-probate transfers to others, and decedent's non-probate transfers to the surviving spouse to the extent that such property was transferred to or for the benefit of the decedent, before or during the marriage to the surviving spouse, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money's worth from a person other than the surviving spouse and (ii) maintained by the decedent as separate property.

2. The value of any property otherwise included under § 64.2-308.8, and its income or proceeds, is excluded from the surviving spouse's property and non-probate transfers to others to the extent that such property was transferred to or for the benefit of the surviving spouse, before or during the marriage to the decedent, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money's worth from a person other than the decedent and (ii) maintained by the surviving spouse as separate property.

C. The value of property:

1. Included in the augmented estate under § 64.2-308.5, 64.2-308.6, 64.2-308.7, or 64.2-308.8 is reduced in each category by enforceable claims against the included property; and

2. Includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal social security system. Except as provided herein for interests passing to a surviving spouse, life estates and remainder interests are valued in the manner prescribed in Article 2 (§ 55-269.1 et seq.) of Chapter 15 of Title 55 and deferred payments and estates for years are discounted to present value using the interest rate specified in § 55-269.1. In valuing partial and contingent interests passing to the surviving spouse, and beneficial interests in trust, the following special rules apply:

a. The value of the beneficial interest of a spouse shall be the entire fair market value of any property held in trust if the decedent was the settlor of the trust, if the trust is held for the exclusive benefit of the surviving spouse during the surviving spouse's lifetime, and if the terms of the trust meet the following requirements:

(1) During the lifetime of the surviving spouse, the trust is controlled by the surviving spouse or one or more trustees who are non-adverse parties;

(2) The trustee shall distribute to or for the benefit of the surviving spouse the entire net income of the trust at least annually;

(3) The trustee is permitted to distribute to or for the benefit of the surviving spouse out of the principal of the trust such amounts and at such times as the trustee, in its discretion, determines for the health, maintenance, and support of the surviving spouse; and

(4) In exercising discretion, the trustee may be authorized or required to take into consideration all other income assets and other means of support available to the surviving spouse.

b. To the extent that the partial or contingent interest is dependent upon the occurrence of any contingency that is not subject to the control of the surviving spouse and that is not subject to valuation by reference to the mortality and annuity tables set forth in §§ 55-271 through 55-277, the contingency will be conclusively presumed to result in the lowest possible value passing to the surviving spouse.

c. To the extent that the valuation of a partial or contingent interest is dependent upon the life expectancy of the surviving spouse, that life expectancy shall be conclusively presumed to be no less than 10 years, regardless of the actual attained age of the surviving spouse at the decedent's death.

D. In case of overlapping application to the same property of the subsections or subdivisions of § 64.2-308.6, 64.2-308.7, or 64.2-308.8, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.

2016, cc. 187, 269; 2018, c. 301.

§ 64.2-308.10. Sources from which elective share payable.

A. In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others:

1. Amounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9 that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent's death pursuant to the decedent's exercise of a power of appointment over property not included in the augmented estate;

2. Amounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7; and

3. The marital property portion of amounts included in the augmented estate under § 64.2-308.8.

B. The marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.

C. If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent's net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent's non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent's net probate estate and that portion of the decedent's non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent's net probate estate and of that portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.

D. If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent's non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.

E. The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.

2016, cc. 187, 269; 2018, c. 301.

§ 64.2-308.11. Personal liability of recipients.

A. Only original recipients of the decedent's non-probate transfers to others, and the donees of the recipients of the decedent's non-probate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's non-probate transfers to him or to pay the value of the amount for which he is liable in cash, or, upon agreement of the surviving spouse, other property.

B. If any section or part of any section of this article is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's non-probate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in § 64.2-308.10, to the person who would have been entitled to it were that section or part of that section not preempted.

2016, cc. 187, 269.

§ 64.2-308.12. Proceeding for elective share; time limit.

A. The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate, by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55. The clerk shall record such election in the will book of the court. A copy of such election shall be provided to the personal representative, if any, by regular U.S. mail or hand delivery within 30 days of filing.

B. The surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent's non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent's death.

C. Notwithstanding the provisions of § 8.01-380, the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court and such election shall be extinguished.

D. After notice and hearing, the court shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10 and 64.2-308.11. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10 and 64.2-308.11 had relief been secured against all persons subject to contribution.

E. An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

2016, cc. 187, 269.

§ 64.2-308.13. Right of election personal to surviving spouse; incapacitated surviving spouse.

A. The right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court under subsection A of § 64.2-308.12. If the election is not made by the surviving spouse personally, it may be made on the surviving spouse's behalf by his or her conservator or agent under the authority of a durable power of attorney.

B. If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others under subsections C and D of § 64.2-308.10 and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate:

1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.

2. During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.

3. Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse's heirs under Chapter 2 (§ 64.2-200 et seq.).

4. The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2.

2016, cc. 187, 269.

§ 64.2-308.14. Waiver of right to elect and of other rights; defenses.

A. The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

B. A surviving spouse's waiver is not enforceable if the surviving spouse proves that:

1. The waiver was not executed voluntarily; or

2. The waiver was unconscionable when it was executed and before execution of the waiver because:

a. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;

b. Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and

c. The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

C. An issue of unconscionability of a waiver is for decision by the court as a matter of law.

D. Unless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

E. If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

2016, cc. 187, 269.

§ 64.2-308.15. Protection of payors and other third parties.

A. Although under § 64.2-308.6 a payment, item of property, or other benefit is included in the decedent's non-probate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or spouse's representative as required by § 64.2-308.12, that a complaint for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice that a complaint for the elective share has been filed.

B. A written notice that a complaint for the elective share has been filed must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice that a complaint for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate. The court shall hold the funds or item of property, and, upon its determination under subsection D of § 64.2-308.12, shall order disbursement in accordance with the determination. If no complaint is filed in the court within the specified time under subsection A of § 64.2-308.12 or, if filed, the election for an elective share is withdrawn under subsection C of § 64.2-308.12, the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.

C. Upon complaint to the probate court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this article.

2016, cc. 187, 269.

§ 64.2-308.16. Rights in family residence.

Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent's augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.

2016, cc. 187, 269.

§ 64.2-308.17. Statutory rights barred by desertion or abandonment.

If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child's estate by intestate succession.

2016, cc. 187, 269.

Article 2. Exempt Property and Allowances.

§ 64.2-309. Family allowance.

A. In addition to any other right or allowance under this article, upon the death of a decedent who was domiciled in the Commonwealth, the surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance shall not continue for longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance may be paid as a lump sum not to exceed $24,000, or in periodic installments not to exceed $2,000 per month for one year. It is payable to the surviving spouse for the use of the surviving spouse and minor children or, if there is no surviving spouse, to the person having the care and custody of the minor children. If any minor child is not living with the surviving spouse, the family allowance may be made partially to the spouse and partially to the person having the care and custody of the child, as their needs may appear. If there are no minor children, the allowance is payable to the surviving spouse.

B. The family allowance has priority over all claims against the estate.

C. The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.

D. The death of any person entitled to a family allowance terminates the person's right to any allowance not yet paid.

1981, c. 580, §§ 64.1-151.1, 64.1-151.4; 1987, c. 222; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532.

§ 64.2-310. Exempt property.

A. In addition to any other right or allowance under this article, the surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $20,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value. If the value of the exempt property selected in excess of any security interests therein is less than $20,000, or if there is not $20,000 worth of exempt property in the estate, the spouse or minor children are entitled to other assets of the estate, if any, to the extent necessary to make up the $20,000 value.

B. The right to exempt property and other assets of the estate needed to make up a deficiency of exempt property has priority over all claims against the estate, except the family allowance.

C. The right to exempt property is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.

1981, c. 580, § 64.1-151.2; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532.

§ 64.2-311. Homestead allowance.

A. In addition to any other right or allowance under this article, a surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $20,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children.

B. The homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property.

C. The homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent's will or by intestate succession is less than $20,000, then the surviving spouse or minor children are entitled to a homestead allowance in an amount that when added to the property passing to the surviving spouse and minor children by the decedent's will or by intestate succession, equals the sum of $20,000.

D. If the surviving spouse claims and receives an elective share of the decedent's estate under §§ 64.2-302 through 64.2-307, the surviving spouse shall not have the benefit of any homestead allowance. If the surviving spouse claims and receives an elective share of the decedent's estate under Article 1.1 (§ 64.2-308.1 et seq.), the homestead allowance shall be in addition to any benefit or share passing to the surviving spouse by way of elective share.

1981, c. 580, § 64.1-151.3; 1990, c. 831; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2016, cc. 187, 269; 2017, cc. 32, 82.

§ 64.2-312. Source, determination, and documentation of family allowance, exempt property, and homestead allowance; petition for relief.

A. Property specifically bequeathed or devised shall not be used to satisfy the right to exempt property and the homestead allowance if there are sufficient assets in the estate otherwise to satisfy such rights. Subject to this restriction, the surviving spouse or the guardian of the minor children may select property of the estate as exempt property and the homestead allowance. The personal representative may make these selections if the surviving spouse or the guardian of the minor children is unable or fails to do so within a reasonable time, or if there is no guardian of the minor children. The personal representative may execute a deed of distribution to establish the ownership of property taken as the homestead allowance or exempt property, which deed, if executed, shall (i) describe the property with reasonable certainty and (ii) state the value of each asset included therein. The personal representative may determine the family allowance in a lump sum or periodic installments in accordance with § 64.2-309. The personal representative may disburse funds of the estate in payment of the family allowance and in payment of any part of the exempt property or the homestead allowance that is payable in cash.

B. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the circuit court for appropriate relief, including the award of a family allowance that is larger or smaller than what the personal representative determined or could have determined. Such petition may be ex parte; provided, however, that the court in its discretion may require such notice to and the convening of interested parties as it may deem proper in each case.

1981, c. 580, § 64.1-151.4; 1996, c. 549; 2001, c. 368; 2012, c. 614.

§ 64.2-313. When and how exempt property and allowances may be claimed.

Any election to take a family allowance, exempt property, or a homestead allowance shall be made within one year from the decedent's death. The election shall be made either in person before the court having jurisdiction over probate or administration of the decedent's estate, or by a writing recorded in the court, or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55.

1981, c. 580, § 64.1-151.5; 2012, c. 614.

§ 64.2-314. Waiver.

A. The right of a decedent's surviving spouse to a homestead allowance in the estate of a decedent as provided in § 64.2-311 may be waived during the decedent's lifetime only by execution of a marital or premarital agreement in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20 or by execution of a waiver provided (i) the waiver is in writing, (ii) the language of the waiver mentions homestead allowance in conspicuous language, and (iii) the waiver has been signed by the surviving spouse.

B. The right to the family allowance and exempt property, as provided in §§ 64.2-309 and 64.2-310, may be waived during the decedent's lifetime only by execution of a marital or premarital agreement made in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20.

1990, c. 831, § 64.1-151.6; 2012, c. 614.

Article 3. Uniform Disposition of Community Property Rights At Death Act.

§ 64.2-315. Application.

This article applies to the disposition at death of the following property acquired by a married person:

1. All personal property, wherever situated:

a. Which was acquired as or became, and remained, community property under the laws of another jurisdiction;

b. Which, all or the proportionate part of that property, was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or

c. Which is traceable to that community property;

2. All or the proportionate part of any real property situated in the Commonwealth which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as, or which became and remained, community property under the laws of another jurisdiction, or property traceable to that community property.

1982, c. 456, § 64.1-197; 2012, c. 614.

§ 64.2-316. Presumptions.

In determining whether this article applies to specific property, the following rebuttable presumptions apply:

1. Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as, or to have become and remained, property to which this article applies; and

2. Real property situated in the Commonwealth and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which this article applies.

1982, c. 456, § 64.1-198; 2012, c. 614.

§ 64.2-317. Disposition upon death.

Upon death of a married person, one-half of the property to which this article applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of intestate succession of the Commonwealth. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of intestate succession of the Commonwealth. With respect to property to which this article applies, the decedent's one-half of the property is not subject to the surviving spouse's right to an elective share under § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.), as applicable.

1982, c. 456, § 64.1-199; 1990, c. 831; 2012, c. 614; 2016, cc. 187, 269.

§ 64.2-318. Perfection of title of surviving spouse.

If the title to any property to which this article applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the commissioner of accounts. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which this article applies, unless a written demand is made by the surviving spouse or the spouse's successor in interest.

1982, c. 456, § 64.1-200; 2012, c. 614.

§ 64.2-319. Perfection of title of personal representative, heir or devisee.

If the title to any property to which this article applies is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this article applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.

1982, c. 456, § 64.1-201; 2012, c. 614.

§ 64.2-320. Purchaser for value or lender.

A. If a surviving spouse has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.

B. If a personal representative or an heir or devisee of the decedent has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse.

C. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.

D. The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.

1982, c. 456, § 64.1-202; 2012, c. 614.

§ 64.2-321. Creditor's rights.

This article does not affect rights of creditors with respect to property to which this article applies.

1982, c. 456, § 64.1-203; 2012, c. 614.

§ 64.2-322. Acts of married persons.

The provisions of this article do not prevent married persons from severing or altering their interests in property to which this article applies.

1982, c. 456, § 64.1-204; 2012, c. 614.

§ 64.2-323. Limitations on testamentary disposition.

This article does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

1982, c. 456, § 64.1-205; 2012, c. 614.

§ 64.2-324. Uniformity of application and construction.

This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.

1982, c. 456, § 64.1-206; 2012, c. 614.

Chapter 4. Wills.

Article 1. Requisites and Execution.

§ 64.2-400. Separate writing identifying recipients of tangible personal property; liability for distribution; action to recover property.

A. If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.

B. The written statement or list may be (i) referred to as one that is in existence at the time of the testator's death, (ii) prepared before or after the execution of the will, (iii) altered by the testator at any time, and (iv) a writing that has no significance apart from its effect on the dispositions made by the will. When distribution is made pursuant to such a written statement or list, a copy thereof shall be furnished to the commissioner of accounts along with the legatee's receipt.

C. A personal representative shall not be liable for any distribution of tangible personal property to the apparent legatee under the testator's will made without actual knowledge of the existence of a written statement or list, nor shall he have any duty to recover property so distributed. However, a person named to receive certain tangible personal property in a written statement or list that is effective under this section may recover that property, or its value if the property cannot be recovered, from an apparent legatee to whom it has been distributed in an action brought for that purpose within one year after the probate of the testator's will.

D. This section shall not apply to a writing admitted to probate as a will and, except as provided herein, shall not otherwise affect the law of incorporation by reference.

1995, c. 363, § 64.1-45.1; 2012, c. 614.

§ 64.2-401. Who may make a will; what estate may be disposed of.

A. Except as provided in subsection B, any individual may make a will to dispose of all or part of his estate at his death that, if not disposed of, would otherwise pass by intestate succession, including any estate, right, or interest that the testator may subsequently become entitled to after the execution of the will.

B. An individual is not capable of making a will if he is (i) of unsound mind or (ii) an unemancipated minor.

Code 1950, §§ 64-48, 64-49; 1968, c. 656, §§ 64.1-46, 64.1-47; 1972, c. 825; 2000, c. 161; 2012, c. 614.

§ 64.2-402. Advertisements to draw wills prohibited; penalty.

Any person that advertises any direct or indirect offer to draw any will or have any will drawn is guilty of a Class 3 misdemeanor, provided that the provisions of this section shall not apply to a duly licensed attorney-at-law, partnership composed of duly licensed attorneys-at-law, or a professional corporation or professional limited liability company incorporated or organized for the practice of law so long as such attorney, partnership, or professional corporation conducts such advertisement in accordance with the Rules of Court promulgated by the Supreme Court of Virginia.

Code 1950, § 64-50; 1968, c. 656, § 64.1-48; 1979, c. 438; 1996, c. 265; 2012, c. 614.

§ 64.2-403. Execution of wills; requirements.

A. No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator's presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.

B. A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.

C. A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.

Code 1950, § 64-51; 1968, c. 656, § 64.1-49; 2012, c. 614.

§ 64.2-404. Writings intended as wills.

A. Although a document, or a writing added upon a document, was not executed in compliance with § 64.2-403, the document or writing shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

B. The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator's signature, except in circumstances where two persons mistakenly sign each other's will, or a person signs the self-proving certificate to a will instead of signing the will itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent's date of death and in which all interested persons are made parties.

2007, c. 538, § 64.1-49.1; 2012, c. 614.

§ 64.2-404.1. Reformation of will to correct mistakes or achieve decedent's tax objectives.

A. The court may reform the terms of a decedent's will, or any codicil thereto, even if unambiguous, to conform the terms to the decedent's intention if it is proved by clear and convincing evidence that both the decedent's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.

B. If shown by clear and convincing evidence, the court may modify the terms of a decedent's will to achieve the decedent's tax objectives in a manner that is not contrary to the decedent's probable intention.

C. Notice must be given and a person may represent and bind another person in proceedings under this section to the same extent that a person may represent and bind another person in proceedings brought under § 64.2-733 or 64.2-734 relating to trusts.

D. The remedies granted by this section are available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent's date of death and in which all interested persons are made parties.

E. This section applies to all wills and codicils regardless of the date of their execution and all judicial proceedings regardless of when commenced, except that this section shall not apply to any judicial proceeding commenced before July 1, 2018, if the court finds that its application would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of the parties.

2018, c. 44.

§ 64.2-405. Interested persons as competent witnesses.

No person is incompetent to testify for or against a will solely by reason of any interest he possesses in the will or the estate of the testator.

Code 1950, §§ 64-53, 64-54; 1962, c. 338; 1968, c. 656, § 64.1-51; 2012, c. 614.

§ 64.2-406. Repealed.

Repealed by Acts 2016, c. 266, cl. 2.

§ 64.2-407. Will of personal estate of nonresidents.

Notwithstanding the provisions of § 64.2-403, the will of a person domiciled out of the Commonwealth at the time of his death shall be valid as to personal property in the Commonwealth if the will is executed according to the law of the state or country in which the person was so domiciled.

Code 1950, § 64-55; 1968, c. 656, § 64.1-53; 2012, c. 614; 2016, c. 266.

§ 64.2-408. Presumption of formal execution of wills made by persons in military service; will of personal estate of persons in military service and seamen.

A. A will executed by a person while in the military service of the United States, as that term is defined in the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.), that purports on its face to be witnessed as required by § 64.2-403, upon proof of the signature of the testator by any two disinterested witnesses, shall be presumed, in the absence of evidence to the contrary, to have been executed in accordance with the requirements of that section and shall be admitted to probate as if the formalities of execution were proved.

B. Notwithstanding the provisions of § 64.2-403, a person while in the military service of the United States, or a seaman or mariner while at sea, may dispose of his personal estate in the same manner as he might heretofore have done.

Code 1950, §§ 64-55, 64-56; 1968, c. 656, §§ 64.1-53, 64.1-54; 2012, c. 614; 2016, c. 266.

§ 64.2-409. Wills of living persons lodged for safekeeping with clerks of certain courts.

A. A person or his attorney may, during the person's lifetime, lodge for safekeeping with the clerk of the circuit court serving the jurisdiction where the person resides any will executed by such person. The clerk shall receive such will and give the person lodging it a receipt. The clerk shall (i) place the will in an envelope and seal it securely, (ii) number the envelope and endorse upon it the name of the testator and the date on which it was lodged, and (iii) index the same alphabetically in a permanent index that shows the number and date such will was deposited.

B. An attorney-at-law, bank, or trust company that has held a will for safekeeping for a client for at least seven years and that has no knowledge of whether the client is alive or dead after such time may lodge such will with the clerk as provided in subsection A.

C. The clerk shall carefully preserve the envelope containing the will unopened until it is returned to the testator or his nominee in the testator's lifetime upon request of the testator or his nominee in writing or until the death of the testator. If such will is returned during the testator's lifetime and is later returned to the clerk, it shall be considered to be a separate lodging under the provisions of this section.

D. Upon notice of the testator's death, the clerk shall open the will and deliver the same to any person entitled to offer it for probate.

E. The clerk shall charge a fee of $2 for lodging, indexing, and preserving a will pursuant to this section.

F. The provisions of this section are applicable only to the clerk's office of a court where the judge or judges of such court have entered an order authorizing the use of the clerk's office for such purpose.

Code 1950, § 64-57.1; 1958, c. 392; 1964, c. 390; 1968, c. 656, § 64.1-56; 1970, c. 567; 2012, c. 614.

Article 2. Revocation and Effect.

§ 64.2-410. Revocation of wills generally.

A. If a testator with the intent to revoke a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.

B. If a testator executes a will in the manner required by law or other writing in the manner in which a will is required to be executed that expressly revokes a former will, such former will, including any codicil thereto, is void and of no effect.

C. If a testator executes a will or codicil in the manner required by law that (i) expressly revokes a part, but not all, of a former will or codicil or (ii) contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil is effective upon the death of the testator.

Code 1950, § 64-59; 1968, c. 656, § 64.1-58.1; 1985, c. 431; 2012, c. 614.

§ 64.2-411. Revival of wills after revocation.

Any will or codicil, or any part thereof that has been revoked pursuant to § 64.2-410 shall not be revived unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to the extent that the testator's intent to revive the will or codicil is shown.

Code 1950, § 64-60; 1968, c. 656, § 64.1-60; 1985, c. 431; 2012, c. 614.

§ 64.2-412. Revocation by divorce or annulment; revival upon remarriage; no revocation by other change.

A. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Unless the will expressly provides otherwise, any provision conferring a general or special power of appointment on the former spouse or nominating the former spouse as executor, trustee, conservator, or guardian is also revoked.

C. Property prevented from passing to a former spouse because of revocation pursuant to subsection B shall pass as if the former spouse failed to survive the testator. Provisions of a will conferring a power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator.

D. Unless the trust instrument expressly provides otherwise, if a settlor creates a revocable trust and if, after such creation:

1. The settlor is divorced from the bond of matrimony or the settlor's marriage is annulled and the trust was revocable immediately before the divorce or annulment, then a provision of such revocable trust transferring property to or conferring any beneficial interest on the settlor's former spouse is revoked upon the divorce or the annulment of the settlor's marriage, and such property or beneficial interest shall be administered as if the former spouse failed to survive the divorce or annulment; or

2. An action is filed (i) for the divorce or annulment of the settlor's marriage to the settlor's spouse or for their legal separation or (ii) by either the settlor or the settlor's spouse for separate maintenance from the other, and the trust was revocable at the time of the filing, then a provision of such revocable trust conferring a power, including a power of appointment, on the spouse or nominating or appointing the spouse as a fiduciary, including trustee, trust director, conservator, or guardian, is revoked upon the filing, and such provision shall be interpreted as if the former spouse failed to survive the filing.

E. If the provisions of the will or revocable trust instrument are revoked solely pursuant to this section, and there is no subsequent will, trust revocation, other than under this section, or inconsistent codicil or amendment, the provisions shall be revived upon the testator's or settlor's remarriage to the former spouse. Nothing in this section shall prevent a testator or settlor from transferring property to, conferring any beneficial interest on, conferring a power on, or nominating or appointing as a fiduciary a spouse or former spouse subsequent to a revocation under this section.

F. Except as provided in this section, no change of circumstances shall be deemed to revoke a will or trust instrument.

G. This section applies to trusts and trust provisions only to the extent the event causing the revocation under subsection D occurs on or after July 1, 2018.

1968, c. 656, § 64.1-59; 1985, c. 429; 2012, c. 614; 2018, c. 44.

§ 64.2-413. Effect of subsequent conveyance on will.

Except for an act that results in the revocation of a will pursuant to this article, any conveyance or other act done subsequent to the execution of a will shall not prevent the operation of the will with respect to such interest in the estate as the testator may have power to dispose of by will at the time of his death.

Code 1950, § 64-61; 1968, c. 656, § 64.1-61; 2012, c. 614.

Article 3. Construction and Effect.

§ 64.2-414. When wills deemed to speak.

A. A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

B. Every will reexecuted or republished, or revived by any codicil, shall be deemed to have been made at the time it was reexecuted, republished, or revived.

Code 1950, §§ 64-62, 64-71; 1968, c. 656, §§ 64.1-62, 64.1-72; 2012, c. 614.

§ 64.2-415. How certain trust provisions, bequests, and devises to be construed; nonademption in certain cases.

A. As used in this section:

"Incapacitated" means impairment by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

"Revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. Unless a contrary intention appears in the will or trust instrument:

1. A bequest or trust provision requiring distribution by reason of the settlor's death of specific securities, whether or not expressed in number of shares, shall include as much of the securities as is part of the estate or is or becomes part of the trust by reason of the testator's or settlor's death, any additional or other securities of the same entity owned by the testator or trustee by reason of action initiated by the entity, excluding any securities acquired by the exercise of purchase options, and any securities of another entity acquired with respect to the specific securities mentioned in the bequest or trust provision as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;

2. A bequest, devise, or trust provision requiring distribution by reason of the settlor's death of specific property shall include the amount of any condemnation award for the taking of the property that remains unpaid at death and any proceeds unpaid at death on fire and casualty insurance on the property; and

3. A bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is under a disability, was sold by a conservator, guardian, or committee for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the conservator, guardian, or committee for the testator. For purposes of this subdivision, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision 2. This subdivision shall not apply if, after the sale or casualty, it is adjudicated that the disability of the testator had ceased and the testator survived the adjudication by one year.

C. Unless a contrary intention appears in a testator's will or durable power of attorney, a bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is incapacitated, was sold by an agent acting within the authority of a durable power of attorney for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the agent. For purposes of this subsection, (i) the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2, (ii) no adjudication of the testator's incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator. This subsection shall not apply (a) if the agent's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the testator or (b) to a power of attorney limited to one or more specific purposes.

D. Unless a contrary intention appears in the will, a devise that would describe a leasehold estate, if the testator had no freehold estate that could be described by the devise, shall be construed to include such a leasehold estate.

E. Unless a contrary intention appears in the trust instrument, a provision requiring distribution of specific property by reason of the death of the settlor shall, in addition to such property that is or becomes part of the trust by reason of the settlor's death, be deemed to be a distribution of a pecuniary amount if, while the settlor was incapacitated, (i) such specific property was sold by the trustee or (ii) the proceeds of fire or casualty insurance as to such property were paid to the trustee. For purposes of this subsection, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2. For purposes of this subsection, no adjudication of the settlor's incapacity before death is necessary. This subsection shall not apply if the trustee's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the settlor.

F. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the distribution occurs by reason of the settlor's death and is of property that is or becomes part of the trust by reason of the settlor's death.

Code 1950, § 64-66; 1968, c. 656, § 64.1-66; 1985, c. 429, § 64.1-62.3; 1995, c. 381; 2012, cc. 476, 507, 614; 2018, c. 44.

§ 64.2-416. Devises, bequests, and distributions that fail; how to pass.

A. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. Unless a contrary intention appears in the will or trust instrument, and except as provided in § 64.2-418:

1. If a devise, bequest, or distribution other than a residuary devise, bequest, or distribution fails for any reason, it shall become a part of the residue; and

2. If the residue is devised, bequeathed, or otherwise required to be distributed to two or more persons and the share of one fails for any reason, such share shall pass to the other residuary devisees, legatees, or beneficiaries in proportion to their interests in the residue.

C. Notwithstanding the provisions of §§ 64.2-2604 and 64.2-2605 and unless a contrary intention appears in the will, if a testator makes a bequest, not exceeding the value of $100, to a legatee and such legatee refuses to take possession of such bequest, then the bequest shall fail and becomes a part of the residue of the testator's estate.

D. Subsection B applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the devise, bequest, or distribution occurs by reason of the settlor's death.

1985, c. 592, § 64.1-65.1; 2003, c. 253; 2012, c. 614; 2014, c. 532; 2018, c. 44.

§ 64.2-417. When advancement deemed satisfaction of devise or bequest.

Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.

Code 1950, § 64-63; 1968, c. 656, § 64.1-63; 1985, c. 432, § 64.1-63.1; 2012, c. 614.

§ 64.2-418. When children or descendants of beneficiary to take estate or trust.

A. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. Unless a contrary intention appears in the will or trust instrument, if a beneficiary, including a beneficiary under a class gift, is (i) a grandparent or a descendant of a grandparent of the testator or settlor and (ii) dead at the time of execution of the will or trust instrument or dead at the time of the testator's or settlor's death, the descendants of the deceased beneficiary who survive the testator or settlor take in the place of the deceased beneficiary. The portion of the testator's estate or the trust that the deceased beneficiary was to take shall be divided into as many equal shares as there are (a) surviving descendants in the closest degree of kinship to the deceased beneficiary and (b) deceased descendants, if any, in the same degree of kinship to the deceased beneficiary who left descendants surviving at the time of the testator's or settlor's death. One share shall pass to each such surviving descendant and one share shall pass per stirpes to such descendants of deceased descendants.

C. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the beneficiary would have taken by reason of the settlor's death if the beneficiary survived the settlor.

1985, c. 592, § 64.1-64.1; 2012, c. 614; 2018, c. 44.

§ 64.2-419. Provision for omitted children when no child living when will made.

A. If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator's will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to such portion of the testator's estate as he would have been entitled to if the testator had died intestate.

B. The devisees and legatees shall contribute ratably to the portion of the testator's estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

Code 1950, § 64-69; 1968, c. 656, § 64.1-70; 1972, c. 825; 2012, c. 614.

§ 64.2-420. Provision for omitted children when child living when will made.

A. If a testator executes a will that makes provision for a living child of the testator, a child born or adopted after execution of a testator's will who is neither provided for nor expressly excluded by the will is entitled to the lesser of (i) such portion of the testator's estate as the afterborn or after-adopted child would have been entitled to if the testator had died intestate or (ii) the equivalent in amount to any bequests and devises to any child named in the will, and if there are bequests or devises to more than one child, then to the largest aggregate bequest or devise to any child.

B. The devisees and legatees of the testator's will shall contribute ratably to the portion of the testator's estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

Code 1950, § 64-70; 1960, c. 527; 1968, c. 656, § 64.1-71; 1972, c. 825; 1978, c. 647; 2012, c. 614.

§ 64.2-421. Construction of certain conditions of spouse's survivorship.

A. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will or trust that provides that the spouse of the decedent shall survive until the distribution of the gift, the will or trust shall be construed as requiring that the spouse survive until the earlier of the date on which the distribution occurs or the date six months after the date of the death of the testator or decedent, unless the court shall find that the decedent intended a contrary result.

B. The proceeding to determine whether the decedent intended that the spouse actually survive until the distribution of the gift shall be filed within 12 months following the death of the decedent. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

1997, c. 263, § 64.1-66.2; 2012, c. 614.

§ 64.2-422. When omitted spouse to take intestate portion.

If a testator fails to provide by will for a surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate such spouse would have received if the decedent left no will, unless it appears from the will or from the provisions of a valid premarital or marital agreement that the omission was intentional.

1985, c. 430, § 64.1-69.1; 1991, c. 441; 2012, c. 614.

§ 64.2-423. Repealed.

Repealed by Acts 2016, c. 266, cl. 2.

§ 64.2-424. When direction to purchase annuity binding on legatee.

If a testator directs in his will that an annuity sufficient to provide income of at least $100 per month be purchased for a legatee, the legatee who is to receive the income from the annuity shall not have the right to instead take the sum directed to be used to purchase such annuity, except to the extent that the will expressly provides for such right or that an assignable annuity be purchased.

Code 1950, § 64-68.1; 1956, c. 448; 1968, c. 656, § 64.1-69; 2012, c. 614; 2014, c. 532.

§ 64.2-425. Interest on pecuniary legacies.

A. Unless a contrary intent is expressed in or to be implied from a will or trust: (i) interest on a pecuniary legacy begins to run at the expiration of one year after the date of the death of the testator and (ii) interest on a pecuniary amount from a trust begins to run at the expiration of one year after the date on which the beneficiary is entitled to receive the pecuniary amount.

B. For the purposes of this section, a marital formula pecuniary bequest either outright to the testator's spouse or in trust for the benefit of such spouse, designed in either case to qualify for the benefit of the marital deduction allowed by the Internal Revenue Code, shall not be considered a pecuniary legacy entitled to interest at the expiration of one year after the death of the testator but, instead, shall share ratably with the residue of the estate in the income earned by the estate during the period of administration, unless a contrary intent is expressed in the will.

Code 1950, § 64-68; 1968, c. 656, § 64.1-68; 1999, c. 975; 2012, c. 614.

§ 64.2-426. Testamentary additions to trusts by testator dying on or after July 1, 1994, and before July 1, 1999.

A. A devise or bequest, including the exercise of a power of appointment, may be made by a will to the trustees of an inter vivos trust or testamentary trust, whether the trust was established by the testator, by the testator and another, or by some other person if:

1. In the case of an inter vivos trust, the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator's will; or

2. In the case of a testamentary trust, the trust is identified in the testator's will and its terms are set forth in the valid last will of a person who has predeceased the testator and whose will was executed before or concurrently with the execution of the testator's will.

In either event, at the time the devise or bequest is to be distributed to the trustees at least one trustee of the trust shall be (i) an individual or (ii) an entity authorized to do a trust business in the Commonwealth. However, prior to distribution of the devise or bequest to the trustees, each nonresident individual or entity shall file with the clerk of the circuit court of the jurisdiction wherein the testator's will was admitted to probate, a consent in writing that service of process in any action against him as trustee or any other notice with respect to administration of the trust in his charge, may be by service upon the clerk of the court in which he is qualified or upon a resident of the Commonwealth at such address as he may appoint in the written instrument filed with the clerk. Where any nonresident qualifies pursuant to this subsection, bond with surety shall be required in every case unless at least one other trustee is a resident or the court in which the nonresident qualifies waives surety under the provisions of § 64.2-1411.

An entity not authorized to do a trust business in the Commonwealth at the time the devise or bequest is to be distributed shall not, in any case, be a trustee of such trust.

B. The inter vivos trust may be an unfunded trust, and for the purposes of this section:

1. An inter vivos trust shall be deemed established upon execution of the instrument creating such trust; and

2. An inter vivos trust may contain provisions whereby the amount of corpus to be allocated to any particular portion of the trust will be determined, measured, or affected by the adjusted gross estate of the settlor or testator for federal estate tax purposes, by the amount of the marital deduction allowable to the settlor's or testator's estate, by the amount of deductions or credits available to the estate of the settlor or testator for federal estate tax purposes, by the value of such estate for federal estate tax purposes, or by any other method, and that an unfunded trust shall not be deemed to be testamentary for that reason.

C. The devise or bequest shall not be invalid because (i) the trust is amendable or revocable or both by the settlor or any other person, either prior or subsequent to the testator's death, (ii) the trust instrument or any amendment thereto was not executed in the manner required for wills, or (iii) the trust was amended after the execution of the will or after the death of the testator.

D. Unless the testator's will provides otherwise, the property so devised or bequeathed:

1. Shall not be deemed held under a testamentary trust of the testator, but shall become a part of the corpus of the trust to which it is given or, if the will so specifies, the property shall become a part of any one or more particular portions of the corpus; and

2. Shall be administered and disposed of (i) in accordance with the terms of the trust as they appear in writing at the testator's death, including any amendments thereto made before the death of the testator, regardless of whether made before or after the execution of the testator's will, or (ii) if the testator expressly specifies in his will, as such terms are amended after the death of the testator.

E. In the event that the settlor or other person having the right to do so revokes or otherwise terminates the trust pursuant to a power to do so reserved in the trust instrument, and such revocation or termination is effected at a date subsequent to the death of a testator who has devised or bequeathed property to such trust, the revocation or termination shall be ineffective as to property devised or bequeathed to such trust by a testator other than the settlor, unless the testator's will expressly provides to the contrary.

F. The devise or bequest shall not be valid should the entire trust not be operative for any reason at the testator's death. If the devise or bequest is to augment only one or more portions of the trust, the devise or bequest shall not be valid should the trust not be operative for any reason as to such portion at the testator's death.

G. In any case in which the devise or bequest to the trustee of a trust fails to take effect by reason of the fact that there is no qualified trustee acting at the time the devise or bequest is to be distributed, or that one or more of the trustees then acting is an entity not authorized to do a trust business in the Commonwealth, the court having jurisdiction with respect to the probate of the will or the administration of the testator's estate, upon sufficient evidence of the existence of a trust estate for administration, independent of the testator's estate, and of the validity of the trust established by virtue of such separate written instrument, may determine that the trusts declared by such separate written instrument are the trusts upon which the devise or bequest is made to the same extent and with like effect as if such trust provisions had been extensively incorporated in the testamentary documents, and that such trusts do not fail for want of a qualified trustee to administer the trust estate so devised or bequeathed. The court may then grant such further and ancillary relief as the nature of the case may require, including the appointment of a qualified trustee to perform the trusts with respect to the estate so devised or bequeathed, and granting instruction and guidance to the trustee so appointed in the performance of his duties. Nothing herein shall be deemed to authorize any such trustee to be excused from any obligations of accounting or performance as are required by law of fiduciaries, nor to prevent the transfer of the trust estate to a trustee appointed by or qualified in a court of record in a foreign state in accordance with the provisions of § 64.2-706.

H. This section shall apply to any devise or bequest under the will of a decedent dying on or after July 1, 1994, and before July 1, 1999.

Code 1950, § 64-71.1; 1958, c. 450; 1962, c. 573; 1966, c. 538; 1968, c. 656, § 64.1-73; 1972, c. 332; 1982, c. 373; 1991, c. 343; 1992, c. 66; 1994, c. 562; 1995, c. 684; 1996, c. 680; 1999, c. 252; 2005, c. 935; 2012, c. 614.

§ 64.2-427. Testamentary additions to trusts by testator dying after June 30, 1999.

A. A will may validly devise or bequeath property, including by the exercise of a power of appointment, to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts or (ii) at the testator's death by the testator's devise or bequest to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.

B. Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection A is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.

C. Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

D. Unless at least one trustee of the trust is an individual resident of the Commonwealth or an entity authorized to do a trust business in the Commonwealth, at the time the devise or bequest is to be distributed to the trust, the testator's personal representative shall not make any distribution to the trust until each nonresident individual or entity files with the clerk of the circuit court of the jurisdiction wherein the testator's will was admitted to probate, a consent in writing that service of process in any action against the trustee or any other notice with respect to administration of the trust in the trustee's charge may be by service upon a resident of the Commonwealth at such address as the trustee may appoint in the written instrument filed with the clerk. No further requirement shall be imposed upon any nonresident individual or entity as a condition to receiving the devise or bequest.

E. This section applies to a will of a testator who dies after June 30, 1999, and it shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.

1999, c. 252, § 64.1-73.1; 2012, c. 614.

§ 64.2-428. Distribution of assets by fiduciaries in satisfaction of pecuniary bequests or transfers in trust of pecuniary amount.

A. Where a will or trust agreement authorizes or directs the fiduciary to satisfy wholly or partly in kind a pecuniary bequest or transfer in trust of a pecuniary amount, unless the instrument shall otherwise expressly provide, the assets selected by the fiduciary for that purpose shall be valued at their respective values on the date of their distribution.

B. Whenever a fiduciary under the provisions of a will or other governing instrument is required to satisfy a pecuniary bequest or transfer in trust in favor of the testator's or donor's spouse and is authorized to satisfy such bequest or transfer by selection and distribution of assets in kind, and the will or other governing instrument further provides that the assets to be so distributed shall or may be valued by some standard other than their fair market value on the date of distribution, the fiduciary, unless the will or other governing instrument otherwise specifically directs, shall distribute assets, including cash, in a manner that is fairly representative of appreciation or depreciation in the value of all property available for distribution in satisfaction of such pecuniary bequest or transfer. This subsection shall not prevent a fiduciary from carrying out the provisions of the will or other governing instrument that require the fiduciary, in order to implement such a bequest or transfer, to distribute assets, including cash, having an aggregate fair market value at the date of distribution amounting to no less than the amount of the pecuniary bequest or transfer as finally determined for federal estate tax purposes.

C. Any fiduciary having discretionary powers under a will or other governing instrument with respect to the selection of assets to be distributed in satisfaction of a pecuniary bequest or transfer in trust in favor of the testator's or donor's spouse shall be authorized to enter into agreements with the Commissioner of Internal Revenue of the U.S. Department of the Treasury and other taxing authorities requiring the fiduciary to exercise the fiduciary's discretion so that cash and other properties distributed in satisfaction of such bequest or transfer in trust will be fairly representative of the appreciation or depreciation in value of all property then available for distribution in satisfaction of such bequest or transfer in trust, and any such agreement heretofore entered into after April 1, 1964, is hereby validated. Any such fiduciary shall be authorized to enter into any other agreement not in conflict with the express terms of the will or other governing instrument that may be necessary or advisable in order to secure for federal estate tax purposes the appropriate marital deduction available under the Internal Revenue Code, and to do and perform all acts incident to securing such deduction.

D. Where a will or trust agreement directs the fiduciary to satisfy a pecuniary or fractional bequest or transfer in trust of a pecuniary amount or fractional share in favor of the testator's or donor's spouse with amounts or assets having a value equal to the maximum marital deduction available under the Internal Revenue Code, the interest of such spouse shall vest immediately upon the testator's death in the case of a will, and upon the execution of the trust agreement in the case of a trust, regardless of when the exact amount of the bequest or transfer is finally determined.

Code 1950, § 64-71.2; 1966, c. 441; 1968, c. 656, § 64.1-74; 1978, c. 481; 2012, c. 614.

§ 64.2-429. Construction of trust provisions otherwise eligible for the election permitted under § 2056(b)(7) of the Internal Revenue Code.

If any trust created under a will or trust agreement made by a decedent dying after December 31, 1981, would qualify for the election specified in § 2056(b)(7) of the Internal Revenue Code but for (i) a direction that accrued income remaining in the hands of a trustee at the death of the surviving spouse of the decedent not be paid to the estate of the surviving spouse or (ii) an authorization to retain unproductive property as an asset of the trust, then, unless the decedent shall have specifically otherwise provided in the will or trust agreement by reference to this section, (a) all accrued and undistributed income of the trust at the death of the surviving spouse shall be paid to the personal representative of the surviving spouse as contemplated by the Uniform Principal and Income Act (§ 64.2-1000 et seq.) and (b) the surviving spouse shall have the right to require the trustee of the trust to make the trust assets productive of income, so as to render the trust eligible for the election provided in § 2056(b)(7) of the Internal Revenue Code.

This section shall apply to all wills and revocable trusts made by decedents dying after December 31, 1981, regardless of when the will or trust was made.

1984, c. 339, § 64.1-74.1; 2012, c. 614.

§ 64.2-430. Certain marital deduction formula clauses to be construed to refer to federal marital deduction allowable if decedent had died on December 31, 1981.

A. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, then such formula provision shall be construed as referring to the maximum amount of property eligible for the marital deduction as was allowable under the Internal Revenue Code as if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended to refer to the maximum marital deduction of the Internal Revenue Code in effect at the time of his death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer specifically to an unlimited marital deduction or an amount qualifying for such deduction, or to otherwise manifest an intent to have the estate qualify for the unlimited marital deduction.

B. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, but no more than will reduce such federal estate tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, then such provision reducing such bequest to such amount necessary to reduce the federal tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, shall be construed as referring to a computation done as of December 31, 1981, that would have reduced the federal estate tax to zero if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended the computation to be made as of the date of death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer to the federal estate tax on a date later than September 12, 1981.

C. The proceeding to determine whether the decedent intended that the computation under subsection A or B be made as of the date of death, rather than the earlier 1981 date, shall be filed within 12 months following the death of the testator or grantor. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

1982, c. 622, § 64.1-62.1; 1983, c. 512; 1987, c. 504; 2012, c. 614.

§ 64.2-431. Certain powers of appointment construed to refer to federal gift tax exclusion in effect on date of execution.

If an instrument executed before September 12, 1981, provides for a power of appointment that may be exercised during any period after December 31, 1981, and such power of appointment is defined in terms of, or by reference to, the maximum amount of property qualifying for the gift tax exclusion under federal law, then such instrument shall be construed as referring to the maximum amount of property eligible for the annual gift tax exclusion as was allowable under the Internal Revenue Code in effect on the date of execution of such instrument provided that the instrument described has not been amended after September 12, 1981, to refer specifically to the federal gift tax exclusion available after December 31, 1981, or the amount qualifying for such exclusion.

1982, c. 622, § 64.1-62.2; 2012, c. 614.

§ 64.2-432. Certain formula clauses to be construed to refer to federal estate and generation-skipping transfer tax laws applicable to estates of decedents dying after December 31, 2009, and before January 1, 2011.

A. A will, trust, or other instrument of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the "unified credit," "estate tax exemption," "applicable exemption amount," "applicable credit amount," "applicable exclusion amount," "generation-skipping transfer tax exemption," "GST exemption," "marital deduction," "maximum marital deduction," "unlimited marital deduction," "inclusion ratio," "applicable fraction," or any section of the Internal Revenue Code relating to the federal estate tax or generation-skipping transfer tax, or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate tax and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010 regardless of whether the decedent's personal representative or other fiduciary elects not to have the estate tax apply with respect to the estate. This provision shall not apply with respect to a will, trust, or other instrument that manifests an intent that a contrary rule shall apply.

B. The personal representative, trustee, other fiduciary, or any affected beneficiary under the will, trust, or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust, or other instrument be construed in a manner other than as provided in subsection A. A proceeding under this section shall be commenced prior to January 1, 2012. In such a proceeding, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust, or other instrument. The court shall have the power to modify a provision of a will, trust, or other instrument that refers to the federal estate tax or generation-skipping transfer tax laws as described in subsection A to (i) conform the terms to the decedent's intention or (ii) achieve the decedent's tax objectives in a manner that is not contrary to the decedent's probable intention. The court may provide that its decision, including any decision to modify a provision of a will, trust, or other instrument, shall be effective as of the date of the decedent's death. A person who commences a proceeding under this section has the burdens of proof, by clear and convincing evidence, and persuasion in establishing the decedent's intention that the will, trust, or other instrument be construed in a manner other than as provided in subsection A.

C. For purposes of this section, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust, or other instrument shall be construed in a manner other than as provided in subsection A, and to conform the terms of the will, trust, or other instrument to the decedent's intention without court approval as provided in subsection B. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to § 64.2-709. "Interested person" means any person whose consent is required in order to achieve a binding settlement were the settlement to be approved by the court.

2010, c. 238, § 64.1-62.4; 2011, c. 679; 2012, c. 614; 2013, c. 784.

Article 4. Uniform International Wills Act.

§ 64.2-433. Definitions.

As used in this article:

"Authorized person" and "person authorized to act in connection with international wills" means a person who by § 64.2-441 or by the laws of the United States, including members of the diplomatic and consular service of the United States designated by Foreign Service Regulations, is empowered to supervise the execution of international wills.

"International will" means a will executed in conformity with §§ 64.2-434 through 64.2-437.

1995, c. 443, § 64.1-96.2; 2012, c. 614.

§ 64.2-434. Validity.

A. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets, and of the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of this article.

B. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

C. This article shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

1995, c. 443, § 64.1-96.3; 2012, c. 614.

§ 64.2-435. Requirements.

A. The will shall be made in writing. It need not be written by the testator himself. It may be written in any language, by hand or by any other means.

B. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

C. In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

D. When the testator is unable to sign, the absence of his signature does not affect the validity of the international will if the testator indicates the reason for his inability to sign and the authorized person makes note thereof on the will. In these cases, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator to sign the testator's name for him, if the authorized person makes note of this also on the will, but it is not required that any person sign the testator's name for him.

E. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

1995, c. 443, § 64.1-96.4; 2012, c. 614.

§ 64.2-436. Other points of form.

A. The signatures shall be placed at the end of the will. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

B. The date of the will shall be the date of its signature by the authorized person. That date shall be noted at the end of the will by the authorized person.

C. The authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so, and at the express request of the testator, the place where he intends to have his will kept shall be mentioned in the certificate provided for in § 64.2-437.

D. A will executed in compliance with § 64.2-435 shall not be invalid merely because it does not comply with this section.

1995, c. 443, § 64.1-96.5; 2012, c. 614.

§ 64.2-437. Certificate.

The authorized person shall attach to the will a certificate to be signed by him establishing that the requirements of this article for valid execution of an international will have been complied with. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate shall be substantially in the following form:

CERTIFICATE

(Convention of October 26, 1973)

I,................… (name, address and capacity), a person authorized
to act in connection with international wills
Certify that on..............…(date)............… (place)
(testator)........................… (name, address, date and place of
birth)in my presence and that of the witnesses
(a)..........................… (name, address, date and place of
birth)
(b)..........................… (name, address, date and place of
birth)
has declared that the attached document is his will and that he knows
the contents thereof.

I furthermore certify that:

(a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his
signature previously affixed.

*(2) following a declaration of the testator stating that he was
unable to sign his will for the following reason
..........................… I have mentioned this declaration
on the will
*and the signature has been affixed by (name and address)

(b) the witnesses and I have signed the will;
*(c) each page of the will has been signed by
..........................… and numbered;

(d) I have satisfied myself as to the identity of the testator and of
the witnesses as designated above;

(e) the witnesses met the conditions requisite to act as such
according to the law under which I am acting;

(f) the testator has requested me to include the following statement

concerning the safekeeping of his will:

PLACE OF EXECUTION
DATE
SIGNATURE and, if necessary, SEAL.

* to be completed if appropriate

1995, c. 443, § 64.1-96.6; 2012, c. 614.

§ 64.2-438. Effect of certificate.

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this article. The absence or irregularity of a certificate shall not affect the formal validity of a will under this article.

1995, c. 443, § 64.1-96.7; 2012, c. 614.

§ 64.2-439. Revocation.

The international will shall be subject to the ordinary rules of revocation of wills.

1995, c. 443, § 64.1-96.8; 2012, c. 614.

§ 64.2-440. Source and construction.

Sections 64.2-433 through 64.2-439 derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and applying this article, regard shall be had to its international origin and to the need for uniformity in its interpretation.

1995, c. 443, § 64.1-96.9; 2012, c. 614.

§ 64.2-441. Persons authorized to act in relation to international will; eligibility; recognition by authorizing agency.

Individuals who have been admitted to practice law before the courts of the Commonwealth and who are members in good standing of the Virginia State Bar are hereby declared to be authorized persons in relation to international wills.

1995, c. 443, § 64.1-96.10; 2012, c. 614.

§ 64.2-442. International will information registration.

The Secretary of the Commonwealth shall establish a registry system by which authorized persons may register in a central information center, information regarding the execution of international wills, keeping that information in strictest confidence until the death of the testator and then making it available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator's death to the center. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the name, social security or any other individual-identifying number established by law, address, and date and place of birth of the testator, and the intended place of deposit or safekeeping of the instrument pending the death of the testator. The Secretary of the Commonwealth, at the request of the authorized person, may cause the information he receives about execution of any international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in the Commonwealth.

1995, c. 443, § 64.1-96.11; 2001, c. 85; 2012, c. 614.

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.

Article 6. Recordation and Effect.

§ 64.2-455. Wills to be recorded; recording copies; effect; transfer to The Library of Virginia.

A. Every will or authenticated copy admitted to probate by any circuit court or clerk of any circuit court shall be recorded by the clerk and remain in the clerk's office, except during such time as the same may be carried to another court under a subpoena duces tecum or as otherwise provided in § 17.1-213. A certified copy of such will or of any authenticated copy may be recorded in any county or city wherein there is any estate, real or personal, devised or bequeathed by such will.

B. The personal representative of the testator shall cause a certified copy of any will or of any authenticated copy so admitted to record to be recorded in any county or city wherein there is any real estate of which the testator possessed at the time of his death or that is devised by his will.

C. Every will or certified copy when recorded shall have the effect of notice to all persons of any devise or disposal by the will of real estate situated in a county or city in which such will or copy is so recorded.

D. With the approval of the judges of a circuit court of any county or city, the clerk of such court may transfer such original wills from his office to the Archives Division of The Library of Virginia. A copy of any will that has been microfilmed or stored in an electronic medium, prepared from such microfilmed or electronic record and certified as authentic by the clerk or his designee, shall constitute a certified copy of the will for any purpose arising under this title for which a certified copy of the will is required.

Code 1950, § 64-90; 1964, c. 169; 1966, c. 254; 1968, c. 656, § 64.1-94; 1978, c. 366; 1994, c. 64; 2001, c. 836; 2002, c. 832; 2012, c. 614.

§ 64.2-456. Bona fide purchaser of real estate without notice of devise protected.

The title of a bona fide purchaser without notice from the heir at law of a person who has died heretofore, or who may die hereafter, having title to any real estate of inheritance in the Commonwealth, shall not be affected by a devise of such real estate made by the decedent, unless within one year after the testator's death the will devising the same or, if such will has been probated outside of the Commonwealth, an authenticated copy thereof and the certificate of probate shall be filed for probate before the court or clerk having jurisdiction for that purpose and shall afterwards be admitted to probate and recorded in the proper court or clerk's office as a will of real estate.

Code 1950, § 64-91; 1968, c. 656, § 64.1-95; 2012, c. 614.

§ 64.2-457. Bona fide purchaser of real estate without notice of devise protected; later will.

The title of a bona fide purchaser without notice from the devisee, or from the personal representative with power to sell, encumber, lease, or exchange, under the will of a person who has died heretofore, or may die hereafter, having title to any real estate of inheritance in the Commonwealth, shall not be affected by any other devise of such real estate made by the testator in another will, unless within one year after the testator's death such other will or, if such other will has been probated outside of the Commonwealth, an authenticated copy thereof and the certificate of probate shall be filed for probate before the court or clerk having jurisdiction for that purpose and shall afterwards be admitted to probate and recorded in the proper court or clerk's office as a will of real estate.

Code 1950, § 64-92; 1968, c. 656, § 64.1-96; 2012, c. 614.

§ 64.2-458. Bona fide purchaser of real estate without notice of devise protected; intestacy.

The title of a bona fide purchaser without notice from the devisee, or from the personal representative with power to sell, encumber, lease, or exchange, under the will of a person who has died heretofore, or may die hereafter, having title to any real estate of inheritance in the Commonwealth, shall not be affected by the later impeachment of the testator's will that results in intestacy, unless within one year after the testator's death a complaint is filed before the court having jurisdiction for that purpose.

1991, c. 197, § 64.1-96.1; 2012, c. 614.

Chapter 5. Personal Representatives and Administration of Estates.

Article 1. Appointment and Qualification.

§ 64.2-500. Grant of administration with the will annexed.

A. If the will does not name an executor, or the executor named refuses to accept, fails to give bond, or dies, resigns, or is removed from office, the court or clerk may grant administration with the will annexed to a person who is a residual or substantial legatee under the will, or his designee, or if such person fails to apply for administration within 30 days, to a person who would have been entitled to administration if there had been no will.

B. Administration shall not be granted to any person unless he takes the required oath and gives bond, and the court or clerk is satisfied that he is suitable and competent to perform the duties of his office. Administration shall not be granted to any person under a disability as defined in § 8.01-2.

C. If any beneficiary of the estate objects, a spouse or parent who has been barred from all interest in the estate because of desertion or abandonment as provided under § 64.2-308 or 64.2-308.17, as applicable, may not serve as an administrator of the estate.

Code 1950, § 64-112; 1968, c. 656, § 64.1-116; 1979, c. 323; 2000, c. 321; 2012, c. 614; 2016, cc. 187, 269.

§ 64.2-501. Oath of executor or administrator with the will annexed.

An executor or administrator with the will annexed shall take an oath that the writing admitted to record contains the true last will of the decedent, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. Such oath may be taken on behalf of a corporation by its president, vice-president, secretary, treasurer, or trust officer.

Code 1950, § 64-113; 1968, c. 656, § 64.1-117; 2012, c. 614.

§ 64.2-502. Grant of administration of intestate estate.

A. The court or the clerk who would have jurisdiction as to the probate of a will, if there were a will, has jurisdiction to hear and determine the right of administration of the estate in the case of a person dying intestate. Administration shall be granted as follows:

1. During the first 30 days following the decedent's death, the court or the clerk may grant administration to a sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.

2. After 30 days have passed since the decedent's death, the court or the clerk may grant administration to the first distributee, or his designee, who applies, provided, that if, during the first 30 days following the decedent's death, more than one distributee notifies the court or the clerk of an intent to qualify after the 30-day period has elapsed, the court or the clerk shall not grant administration to any distributee, or his designee, until the court or the clerk has given all such distributees an opportunity to be heard.

3. After 45 days have passed since the decedent's death, the court or the clerk may grant administration to any nonprofit charitable organization that operated as a conservator or guardian for the decedent at the time of his death if such organization certifies that it has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of its intention to apply for administration at least 30 days before such application, or, that it has not been able to find any address for such distributee. However, if, during the first 45 days following the decedent's death, any distributee notifies the court or the clerk of an intent to qualify after the 45-day period has elapsed, the court or the clerk shall not grant administration to any such organization until the court or the clerk has given all such distributees an opportunity to be heard. Qualification of such nonprofit charitable organization is not subject to challenge on account of the failure to make the certification required by this subdivision.

4. After 60 days have passed since the decedent's death, the court or the clerk may grant administration to one or more of the creditors or to any other person, provided such creditor or person other than a distributee certifies that he has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of his intention to apply for administration at least 30 days before such application, or that he has not been able to find any address for such distributee. Qualification of a creditor or person other than a distributee is not subject to challenge on account of the failure to make the certification required by this subdivision.

B. When granting administration, if the court determines that it is in the best interests of a decedent's estate, the court may depart from the provisions of this section at any time and grant administration to such person as the court deems appropriate.

C. The court or clerk may admit to probate a will of the decedent after a grant of administration. If administration has been granted to a creditor or person other than a distributee, the court or clerk may grant administration to a distributee who applies for administration and who has not previously been refused administration after reasonable notice has been given to such creditor or other person previously granted administration. Admission of a will to probate or the grant of administration pursuant to this subsection terminates any previous grant of administration.

D. The court or clerk shall not grant administration to any person unless satisfied that he is suitable and competent to perform the duties of his office. The clerk shall require such person to sign under oath that such person is not under a disability as defined in § 8.01-2 or, regardless of whether his civil rights have been restored, has not been convicted of a felony offense of (i) fraud or misrepresentation or (ii) robbery, extortion, burglary, larceny, embezzlement, fraudulent conversion, perjury, bribery, treason, or racketeering. However, if the person convicted of such felony offense is the sole distributee of the estate, then the court or clerk may grant administration to such person if he is otherwise suitable and competent to perform the duties of his office.

E. If any beneficiary of the estate objects, a spouse or parent who has been barred from all interest in the estate because of desertion or abandonment as provided under § 64.2-308 or 64.2-308.17, as applicable, may not serve as an administrator of the estate of the deceased spouse or child.

Code 1950, §§ 64-114, 64-115; 1968, c. 656, §§ 64.1-118, 64.1-119; 1978, c. 483; 2000, c. 321; 2002, c. 197; 2006, c. 724; 2012, c. 614; 2015, c. 551; 2016, cc. 187, 269.

§ 64.2-503. Oath and bond of administrator of intestate estate.

An administrator of an intestate estate shall give bond and take an oath that the decedent has left no will, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. Such oath may be taken on behalf of a corporation by its president, a vice-president, secretary, treasurer, or trust officer.

Code 1950, § 64-115; 1968, c. 656, § 64.1-119; 2012, c. 614.

§ 64.2-504. Bond of executor or administrator.

A. Except as provided in subsection B, every bond of an executor or administrator shall be, at least, in an amount equal to (i) the full value of the personal estate of the decedent to be administered, or (ii) if the will authorizes the executor or administrator to sell real estate, or receive the rents and profits thereof, the full value of the personal estate and such real estate, or the rents and profits thereof, as the case may be.

B. Upon the request of an executor or administrator, the clerk shall redetermine the amount of the bond in light of any reduction in the current market value of the estate in the executor's or administrator's possession or subject to his power, whether such reduction is due to disbursements, distributions, or valuation of assets, if such reduction is reflected in an accounting that has been confirmed by the court or an inventory that has been approved by the commissioner of accounts and recorded in the clerk's office. This provision shall not apply to any bond set by the court.

Code 1950, § 64-116; 1968, c. 656, § 64.1-120; 1996, c. 317; 2012, c. 614.

§ 64.2-505. When security not required.

A. The court or clerk shall require a personal representative to furnish security. However, the court or clerk shall not require a personal representative to furnish security if:

1. All distributees of a decedent's estate or all beneficiaries under the decedent's will are personal representatives of that decedent's estate, whether serving alone or with others who are not distributees or beneficiaries; however, if all personal representatives of a testate decedent are entitled to file a statement in lieu of an accounting under § 64.2-1314, the security shall be required only upon the portion of their bond given in connection with the property passing to beneficiaries who are not personal representatives; or

2. The will waives security of an executor nominated therein.

B. Notwithstanding subsection A, upon the motion of a legatee, devisee, or distributee of an estate, or any person who has a pecuniary interest in an estate, the court or clerk may require the personal representative to furnish security. A copy of such motion shall be served upon the personal representative. The court shall conduct a hearing on the motion and may require the personal representative to furnish security in an amount it deems sufficient and may award the movant reasonable attorney fees and costs which shall be paid out of the estate.

C. This section shall be deemed to permit qualification without security where the personal representative is the only distributee or only beneficiary by virtue of one or more instruments of disclaimer filed prior to, or at the time of, such personal representative's qualification.

Code 1950, § 64-117; 1966, c. 325; 1968, c. 656, § 64.1-121; 1970, c. 426; 1974, c. 140; 1977, c. 144; 1994, c. 393; 1996, c. 57; 2012, c. 614; 2014, c. 291; 2015, c. 631.

§ 64.2-506. When letters of administration and order for obtaining probate in due form are required.

The court or clerk may issue a certificate of qualification to any personal representative for obtaining probate or letters of administration, which shall be given the same effect as the probate or letters made out in due form. The clerk when required by any personal representative, shall make out such probate or letters in due form that shall be signed by the clerk, sealed with the seal of the court, and certified by the judge to be attested in due form.

Code 1950, § 64-118; 1968, c. 656, § 64.1-122; 2012, c. 614.

§ 64.2-507. Clerks to deliver statement of responsibilities.

The clerk of any court in which any person qualifies as executor or administrator of an estate shall deliver to such person, at the time of qualification, a statement in at least the following form: "As an executor or administrator of an estate, you are charged with the responsibility of filing any income, inheritance or estate tax returns required by state or federal law and an accounting of your handling of the estate."

1980, c. 292, § 64.1-122.1; 2012, c. 614.

§ 64.2-508. Written notice of probate, qualification, and entitlement to copies of inventories, accounts, and reports to be provided to certain parties.

A. Except as otherwise provided in this section, a personal representative of a decedent's estate or a proponent of a decedent's will when there is no qualification shall provide written notice of qualification or probate, and notice of entitlement to copies of wills, inventories, accounts, and reports, to the following persons:

1. The surviving spouse of the decedent, if any;

2. All heirs at law of the decedent, whether or not there is a will;

3. All living and ascertained beneficiaries under the will of the decedent, including those who may take under § 64.2-418, and beneficiaries of any trust created by the will; and

4. All living and ascertained beneficiaries under any will of the decedent previously probated in the same court.

B. Notice under subsection A need not be provided (i) when the known assets passing under the will or by intestacy do not exceed $5,000 or (ii) to the following persons:

1. A personal representative or proponent of the will;

2. Any person who has signed a waiver of right to receive notice;

3. Any person to whom a summons has been issued pursuant to § 64.2-446;

4. Any person who is the subject of a conservatorship, guardianship, or committeeship, if notice is provided to his conservator, guardian, or committee;

5. Any beneficiary of a trust, other than a trust created by the decedent's will, if notice is provided to the trustee of the trust;

6. Any heir or beneficiary who survived the decedent but is deceased at the time of qualification or probate, and such person's successors in interest, if notice is provided to such person's personal representative;

7. Any minor for whom no guardian has been appointed, if notice is provided to his parent or person in loco parentis;

8. Any beneficiary of a pecuniary bequest or of a bequest of tangible personal property, provided in either case the beneficiary is not an heir at law and the value of the bequest is not in excess of $5,000; and

9. Any unborn or unascertained persons.

C. The notice shall include the following information:

1. The name and date of death of the decedent;

2. The name, address, and telephone number of a personal representative or a proponent of a will;

3. The mailing address of the clerk of the court in which the personal representative qualified or the will was probated;

4. A statement as follows: "This notice does not mean that you will receive any money or property";

5. A statement as follows: "If personal representatives qualified on this estate, they are required by law to file an inventory with the commissioner of accounts within four months after they qualify in the clerk's office, to file an account within 16 months of their qualification, and to file additional accounts within 16 months from the date of their last account period until the estate is settled. If you make written request therefor to the personal representatives, they must mail copies of these documents (not including any supporting vouchers, but including a copy of the decedent's will) to you at the same time the inventory or account is filed with the commissioner of accounts unless (i) you would take only as an heir at law in a case where all of the decedent's probate estate is disposed of by will or (ii) your gift has been satisfied in full before the time of such filing. Your written request may be made at any time; it may relate to one specific filing or to all filings to be made by the personal representative, but it will not be effective for filings made prior to its receipt by a personal representative. A copy of your request may be sent to the commissioner of accounts with whom the filings will be made. After the commissioner of accounts has completed work on an account filed by a personal representative, the commissioner files it and a report thereon in the clerk's office of the court wherein the personal representative qualified. If you make written request therefor to the commissioner before this filing, the commissioner must mail a copy of this report and any attachments (excluding the account) to you on or before the date that they are filed in the clerk's office"; and

6. The mailing address of the commissioner of accounts with whom the inventory and accounts must be filed by the personal representatives, if they are required.

D. Within 30 days after the date of qualification or admission of the will to probate, a personal representative or proponent of the will shall forward notice by delivery or by first-class mail, postage prepaid, to the persons entitled to notice at their last known address. If the personal representative or proponent does not determine that the assets of the decedent passing under the will or by intestacy exceed $5,000 until after the date of the qualification or admission of the will to probate, notice shall be forwarded to the persons entitled thereto within 30 days after such determination.

E. Failure to give the notice required by this section shall not (i) affect the validity of the probate of a decedent's will or (ii) render any person required to give notice, who has acted in good faith, liable to any person entitled to receive notice. In determining the limitation period for any rights that may commence upon or accrue by reason of such probate or qualification in favor of any entitled person, the time that elapses from the date that notice should have been given to the date that notice is given shall not be counted, unless the person required to give notice could not determine the name and address of the entitled person after the exercise of reasonable diligence.

F. The personal representative or proponent of the will shall record within four months in the clerk's office where the will is recorded an affidavit stating (i) the names and addresses of the persons to whom he has mailed or delivered notice and when the notice was mailed or delivered to each or (ii) that no notice was required to be given to any person. The commissioner of accounts shall not approve any settlement filed by a personal representative until the affidavit described in this subsection has been recorded. If the personal representative of an estate or the proponent of a will is unable to determine the name and address of any person to whom notice is required after the exercise of reasonable diligence, a statement to that effect in the required affidavit shall be sufficient for purposes of this subsection. Notwithstanding the foregoing provisions, any person having an interest in an estate may give the notice required by this section and record the affidavit described in this subsection. If this subsection has not been complied with within four months after qualification, the commissioner of accounts shall issue, through the sheriff or other proper officer, a summons to such fiduciary requiring him to comply, and if the fiduciary does not comply, the commissioner shall enforce the filing of the affidavit in the manner set forth in § 64.2-1215.

G. The form of the notice to be given pursuant to this section, which shall contain appropriate instructions regarding its use, shall be provided to each clerk of the circuit court by the Office of the Executive Secretary of the Supreme Court and each clerk shall provide copies of such form to the proponents of a will or those qualifying on an estate.

1993, c. 4, § 64.1-122.2; 2001, cc. 78, 265; 2002, c. 716; 2012, c. 614.

Article 2. List of Heirs and Affidavit of Real Estate.

§ 64.2-509. List of heirs.

A. Every personal representative of a decedent, whether the decedent died testate or intestate, shall, at the time of his qualification, and every proponent of a will where there is no qualification of a personal representative, shall, at the time the will is presented for probate, furnish a list of heirs under oath in accordance with a form provided to each clerk of court by the Office of the Executive Secretary of the Supreme Court or a computer-generated facsimile thereof to the court or clerk where the personal representative qualifies and to the clerk of the circuit court for the jurisdiction where any real estate that is part of the decedent's estate is located.

B. If there has been no qualification of a personal representative within 30 days following the decedent's death, a list of heirs, made under oath in accordance with the form provided to each clerk or a computer-generated facsimile thereof, may be filed by any heir at law of a decedent who died intestate.

C. The clerk shall record the list of heirs in the will book and index the list in the name of the decedent and the heirs. A list of heirs made under oath and recorded pursuant to this section shall be prima facie evidence of the facts contained in the list. The cost of recording the list shall be deemed a part of the cost of administration and be paid out of the estate of the decedent.

D. The personal representative shall not receive any compensation for his services until the list of heirs is filed unless he files an affidavit before the commissioner of accounts that the heirs are unknown to him and that after diligent inquiry he has been unable to ascertain their names, ages, or addresses, as the case may be.

E. The list of heirs filed pursuant to this section shall reflect the heirs in existence on the date of the decedent's death. If there are any changes as to who should be included on the list of heirs, an additional list of heirs shall be filed that includes such changes.

Code 1950, § 64-127; 1954, c. 182; 1968, cc. 384, 656, § 64.1-134; 1984, c. 339; 1994, c. 327; 1998, c. 610; 2010, c. 585; 2012, c. 614.

§ 64.2-510. Affidavit relating to real estate of intestate decedent.

A. Any person having an interest in real estate that is part of an intestate decedent's estate, including a personal representative who has qualified, may execute an affidavit, on a form provided to each clerk of the court by the Office of the Executive Secretary of the Supreme Court or a computer-generated facsimile thereof, setting forth briefly (i) a description of the real estate owned by the decedent at the time of his death situated within the jurisdiction where the affidavit is to be recorded; (ii) that the decedent died intestate; and (iii) the names and last known addresses of the decedent's heirs at law. The clerk of the circuit court of the jurisdiction where such real estate or any part thereof is located shall record and index the affidavit as wills are recorded and indexed in the name of the decedent and the heirs.

B. The clerk of the circuit court of the jurisdiction where the affidavit is recorded shall transmit an abstract of the affidavit to the commissioner of the revenue of such jurisdiction. In lieu of a printed paper copy of such abstract, the clerk may provide an electronic abstract or secure remote electronic access to such abstract to the commissioner. Upon receipt of the affidavit, the commissioner may transfer the real estate upon the land books and assess the real estate in accordance therewith.

Code 1950, § 64-127.1; 1952, c. 149; 1968, c. 656, § 64.1-135; 1998, c. 610; 2012, c. 614; 2017, c. 42.

Article 3. Authority and General Duties.

§ 64.2-511. Powers of executor before qualification.

A person named in a will as executor shall not exercise the powers of executor until he qualifies as such by taking an oath and giving bond in the court or before the clerk where the will or an authenticated copy thereof is admitted to record, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste.

Code 1950, § 64-128; 1968, c. 656, § 64.1-136; 2012, c. 614.

§ 64.2-512. Funeral expenses.

Subject to the provisions of § 64.2-528, reasonable funeral and burial expenses of a decedent shall be considered an obligation of the decedent's estate, which shall be liable for such expenses to (i) the funeral establishment, (ii) the cemetery, (iii) any third-party creditor who finances the payment of such expenses, or (iv) any person authorized to make arrangements for the funeral of the decedent who has paid such expenses. A person who is authorized to make arrangements for the funeral of the decedent shall have the authority to bind the decedent's estate for such expenses and may execute, on behalf of the estate, any necessary instruments.

1999, c. 193, § 64.1-136.1; 2012, c. 614.

§ 64.2-513. Effect of death, resignation, or removal of sole executor.

Upon the death, resignation, or removal of the sole surviving executor under any last will, administration of the estate of the testator not already administered may be granted, with the will annexed, to any person the court deems appropriate.

Code 1950, § 64-129; 1968, c. 656, § 64.1-137; 2012, c. 614.

§ 64.2-514. Duty of every personal representative.

Every personal representative shall administer, well and truly, the whole personal estate of his decedent.

Code 1950, § 64-131; 1968, c. 656, § 64.1-139; 2012, c. 614.

§ 64.2-515. Duty of fiduciaries as to joint accounts.

A. Except as provided in subsection B, a fiduciary charged with the administration of the estate of a decedent is not required to assert a claim on behalf of the decedent's estate to any funds on deposit in any financial institution in a joint account held, at the time of the decedent's death, in the name of the decedent and one or more other persons when the terms of the contract of deposit, or the laws of the state in which such funds are deposited, permit such financial institution to pay the funds to (i) any of such persons in whose name the account is held, whether the other, or others, are living or not, or (ii) a named survivor or survivors.

B. The fiduciary shall assert a claim to such funds if he receives a request in writing from any person interested in the estate within six months from the date of the initial qualification of the estate. The fiduciary, or his attorney, shall acknowledge in writing receipt of such request within 10 days, and if the fiduciary is the surviving cotenant of such funds, the fiduciary shall segregate such funds and place such funds in an interest-bearing account, awaiting an appropriate court order concerning the ultimate disposition of such funds. The fiduciary shall not use such funds for his own personal account. However, if the fiduciary accedes to the request that such funds be treated as estate funds, the fiduciary may distribute the funds according to law without any court order.

Code 1950, § 64-131.1; 1966, c. 600; 1968, c. 656, § 64.1-140; 1970, c. 425; 2012, c. 614.

§ 64.2-516. Duties of fiduciaries as to certain obligations of the United States.

A. Except as provided in subsection B, a fiduciary charged with the administration of the estate of a decedent is not required to assert a claim to or seek to recover the whole or any part of funds arising from the redemption or payment of bonds of the United States that are paid or payable to others under the applicable laws of the United States or rules and regulations of the U.S. Department of the Treasury.

B. The fiduciary shall assert a claim to such funds if he receives a request in writing from any person interested in the estate within six months from the date of the initial qualification of the estate. The fiduciary, or his attorney, shall acknowledge in writing receipt of such request within 10 days, and if the fiduciary is the co-owner of such funds, the fiduciary shall segregate such funds and place such funds in an interest-bearing account, awaiting an appropriate court order concerning the ultimate disposition of such funds. The fiduciary shall not use such funds for his own personal account. However, if the fiduciary accedes to the request that such funds be treated as estate funds, the fiduciary may distribute the funds according to law without any court order.

Code 1950, § 64-131.2; 1968, c. 656, § 64.1-141; 2012, c. 614.

§ 64.2-517. Exercise of discretionary powers by surviving executors or administrators with the will annexed.

A. When discretionary powers are conferred upon the executors under any will and some, but not all, of the executors die, resign, or become incapable of acting, the executors or executor remaining shall continue to exercise the discretionary powers conferred by the will, unless the will expressly provides that the discretionary powers cannot be exercised by fewer than all of the original executors named in the will.

B. When discretionary powers are conferred upon the executors under any will and all of the executors or the sole executor if only one is named in the will dies, resigns, or becomes incapable of acting, the administrator with the will annexed appointed by the court shall exercise the discretionary powers conferred by the will upon the original executors or executor, unless the will expressly provides that the discretionary powers can only be exercised by the executors or executor named in the will.

Code 1950, § 64-132; 1968, c. 656, § 64.1-142; 2012, c. 614.

§ 64.2-518. When personal representative may renew obligation of decedent.

A. When a decedent is obligated on any note, bond, or other obligation for the payment of money that is due at the time of the decedent's death, or becomes due prior to the settlement of the decedent's estate, the decedent's personal representative may execute, in the same capacity as the decedent was obligated, a new note, bond, or other obligation for the payment of money for no more than the same amount as the sum due on the original obligation, including both principal and interest, which shall be in lieu of the obligation of the decedent, whether made payable to the original holder or another. Any note, bond, or other obligation executed by the personal representative shall be binding upon the estate of the decedent to the same extent and in the same manner as the original note, bond, or other obligation executed by the decedent.

B. The personal representative may renew such note, bond, or other obligation for the payment of money from time to time, provided, that the time for final payment of the note, bond, or other obligation, or any renewal thereof, shall not exceed two years from the qualification of the original personal representative, unless otherwise ordered by a court of competent jurisdiction.

C. The personal representative is not personally liable for any note, bond, or other obligation for the payment of money executed pursuant to this section.

Code 1950, § 64-133; 1968, c. 656, § 64.1-143; 2012, c. 614.

§ 64.2-519. Suits upon judgment and contracts of decedent and actions for personal injury or wrongful death.

A personal representative may sue or be sued (i) upon any judgment for or against the decedent, (ii) upon any contract of or with the decedent, or (iii) in any action for personal injury or wrongful death against or on behalf of the estate.

Code 1950, § 64-134; 1968, c. 656, § 64.1-144; 2001, c. 223; 2012, c. 614.

§ 64.2-520. Action for goods carried away, or for waste, destruction of, or damage to estate of decedent.

A. Any action for damages for the taking or carrying away of any goods, or for the waste, destruction of, or damage to any estate of or by the decedent, whether such damage be direct or indirect, may be maintained by or against the decedent's personal representative.

B. Any action pursuant to this section shall survive pursuant to § 8.01-25.

Code 1950, § 64-135; 1968, c. 656, § 64.1-145; 1977, c. 624; 2004, c. 368; 2012, c. 614; 2017, cc. 43, 93.

§ 64.2-520.1. Action for damages from legal malpractice concerning estate planning.

A. An action for damages to an individual or an individual's estate, including future tax liability, resulting from legal malpractice concerning the individual's estate planning, including the provision of legal advice or the preparation of legal documents, regardless of when executed, shall accrue upon completion of the representation during which the malpractice occurred.

B. Notwithstanding § 55-22, but subject to any written agreement between the individual and the defendant that expressly grants standing to a person who is not a party to the representation by specific reference to this subsection, the action may be maintained only by the individual or by the individual's personal representative.

C. An action for damages pursuant to this section in which a written contract for legal services existed between the individual and the defendant shall be brought within five years after the cause of action accrues as provided in this section. An action for damages pursuant to this section in which an unwritten contract for legal services existed between the individual and the defendant shall be brought within three years after the cause of action accrues as provided in this section.

D. Notwithstanding the provisions of this section, no such action shall be based upon damages that may reasonably be avoided or that result from a change of law subsequent to the representation upon which the action is based.

E. Any action pursuant to this section shall survive pursuant to § 8.01-25.

2017, cc. 43, 93.

Article 4. Power With Respect to Real Estate.

§ 64.2-521. Personal representatives to sell real estate devised to be sold, and to receive certain rents.

A. If the will devises real estate to be sold and no person other than the executor is appointed to sell such real estate, the executor has the power to sell and convey such real estate and to receive the proceeds of sale or the rents and profits of any real estate that the executors are authorized by the will to receive.

B. Unless a contrary intent is clearly set out in the will, if no executor qualifies, or those qualifying die, resign, or are removed, an administrator with the will annexed has the power to sell or convey the real estate devised by the will to be sold and to receive the proceeds of sale or the rents and profits of any real estate.

Code 1950, §§ 64-136, 64-137; 1968, c. 656, §§ 64.1-146, 64.1-147; 2012, c. 614.

§ 64.2-522. Personal representatives to pay over sale proceeds and rents to persons entitled.

An executor or administrator shall faithfully pay the rents and profits or proceeds of sale of real estate that lawfully come into his possession, or into the possession of any person for him, to such persons entitled thereto.

Code 1950, § 64-141; 1968, c. 656, § 64.1-151; 2012, c. 614.

§ 64.2-523. Personal representative may execute deed pursuant to written contract of decedent.

When any decedent has executed and delivered a bona fide written contract of sale, purchase option, or other agreement binding such deceased person, his heirs, personal representatives, or assigns, to convey any real property or any interest therein, his personal representatives may execute a deed and do all things necessary to effect the transfer of title to such real property or any interest therein to the purchaser upon the purchaser's full compliance with the terms and conditions of such contract, option, or agreement. Such transfer shall be as effective as if it had been made by the decedent. The contract, option, or agreement shall be attached to any deed executed by a personal representative pursuant to this section and the clerk shall record such contract, option, or agreement in the deed book. Any personal representative duly qualified in any other state, upon taking an oath that the decedent owed no debts in the Commonwealth and posting bond upon such terms and in such amount as may be fixed by the clerk, but not less than the value of the decedent's interest to be conveyed, may convey real property or any interest therein under the provisions of this section without qualifying in the Commonwealth.

Code 1950, § 64-138; 1958, c. 416; 1966, c. 346; 1968, c. 656, § 64.1-148; 2012, c. 614.

§ 64.2-524. Validation of certain conveyances by foreign executor.

A. Every conveyance of real estate within the Commonwealth made prior to June 30, 1986, by the executor under a will that, prior to such sale, has been probated according to the laws of another state without the qualification of the executor in the Commonwealth, shall be as valid and effective to pass the title of such real estate as if the executor had qualified in the Commonwealth, provided that (i) the will under which the executor acted was duly executed according to the laws of the Commonwealth, (ii) the will confers upon the executor the power to convey the real estate, and (iii) an authenticated copy of such will has been admitted to probate in the Commonwealth in the county or city in which the real estate or any part thereof is located.

B. Notwithstanding any other provision of law, any conveyance of real estate within the Commonwealth made on or after June 30, 1986, by an executor described in subsection A or the trustee of a testamentary trust established in a will where the will, prior to such sale, has been probated according to the laws of another state shall, without the qualification of the executor or the testamentary trustee in the Commonwealth, be valid and effective to pass the title of such real estate provided that (i) the executor or testamentary trustee had duly qualified according to the laws of the state where the will was probated, (ii) the will under which the executor or testamentary trustee acted was duly executed according to the laws of the Commonwealth as a valid will and confers upon the executor or testamentary trustee the power to convey the real estate so conveyed, and (iii) an authenticated copy of such will has been admitted to probate in the Commonwealth in the county or city in which the real estate or any part thereof is situated.

Code 1950, §§ 64-139, 64-140; 1958, c. 558; 1960, c. 279; 1968, c. 656, §§ 64.1-149, 64.1-150; 1996, c. 93; 2012, cc. 61, 614.

Article 5. Liability of Personal Estate to Debts.

§ 64.2-525. Debtor's appointment as executor.

The appointment of a debtor of the estate as executor shall not extinguish his debt to the estate.

Code 1950, § 64-142; 1968, c. 656, § 64.1-152; 2012, c. 614.

§ 64.2-526. What personal estate to be sold; use of proceeds.

A. Subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3 and excluding personal estate that the will directs not to be sold, the personal representative shall sell such assets of the personal estate where the retention of such assets is likely to result in an impairment of value. In conducting such a sale, the personal representative may give reasonable credit and take bond with good security.

B. If, after the sale pursuant to subsection A, the personal estate is not sufficient to pay the funeral expenses, charges of administration, debts, and legacies, the personal representative shall sell so much of the remaining personal estate as is necessary to pay such obligations. In conducting such a sale, the personal representative shall give as much consideration as practicable to preserving specific bequests in the will and to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3.

C. Unless necessary for the payment of funeral expenses, charges of administration, or debts, the personal representative shall not sell personal estate that the will directs not to be sold.

Code 1950, §§ 64-143, 64-144, 64-145; 1966, c. 331; 1968, c. 656, §§ 64.1-153, 64.1-154, 64.1-155; 1981, c. 580; 2012, c. 614.

§ 64.2-527. Estate held for another's life; inclusion in personal estate.

Any estate for the life of another shall go to the personal representative of the party entitled to the estate and shall be applied and distributed as the personal estate of such party.

Code 1950, § 64-146; 1968, c. 656, § 64.1-156; 2012, c. 614.

§ 64.2-528. Order in which debts and demands of decedents to be paid.

When the assets of the decedent in his personal representative's possession are not sufficient to satisfy all debts and demands against him, they shall be applied to the payment of such debts and demands in the following order:

1. Costs and expenses of administration;

2. The allowances provided in Article 2 (§ 64.2-309 et seq.) of Chapter 3;

3. Funeral expenses not to exceed $4,000;

4. Debts and taxes with preference under federal law;

5. Medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him not to exceed $2,150 for each hospital and nursing home and $425 for each person furnishing services or goods;

6. Debts and taxes due the Commonwealth;

7. Debts due as trustee for persons under disabilities; as receiver or commissioner under decree of court of the Commonwealth; as personal representative, guardian, conservator, or committee when the qualification was in the Commonwealth; and for moneys collected by anyone to the credit of another and not paid over, regardless of whether or not a bond has been executed for the faithful performance of the duties of the party so collecting such funds;

8. Debts for child support arrearages;

9. Debts and taxes due localities and municipal corporations of the Commonwealth; and

10. All other claims.

No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over a claim not due.

Code 1950, § 64-147; 1956, c. 231; 1966, c. 274; 1968, c. 656, § 64.1-157; 1972, c. 96; 1981, c. 580; 1986, c. 109; 1993, c. 259; 1996, c. 84; 1997, c. 801; 2007, c. 735; 2008, cc. 666, 817; 2012, c. 614; 2014, c. 532; 2017, c. 591.

§ 64.2-529. Creditors to be paid in order of their classification; class paid ratably; when representative not liable for paying debt.

No payment shall be made to creditors of any one class until all those of the preceding class have been fully paid, and if the assets are not sufficient to pay all the creditors of any one class, the creditors of such class shall be paid ratably; but a personal representative who, after 12 months from his qualification, pays a debt or demand of his decedent is not personally liable for any debt or demand against the decedent of an equal or superior class, whether it is of record or not, unless he had notice of such debt or demand before making such payment.

Code 1950, § 64-148; 1968, c. 656, § 64.1-158; 2012, c. 614.

§ 64.2-530. Lien acquired during lifetime of decedent not affected.

The provisions of §§ 64.2-528 and 64.2-529 shall not affect any lien acquired during the lifetime of the decedent.

Code 1950, § 64-149; 1968, c. 656, § 64.1-159; 2012, c. 614.

§ 64.2-531. Nonexoneration; payment of lien if granted by agent.

A. Unless a contrary intent is clearly set out in the will or in a transfer on death deed, (i) real or personal property that is the subject of a specific devise or bequest in the will or (ii) real property subject to a transfer on death deed passes, subject to any mortgage, pledge, security interest, or other lien existing at the date of death of the testator, without the right of exoneration. A general directive in the will to pay debts shall not be evidence of a contrary intent that the mortgage, pledge, security interest, or other lien be exonerated prior to passing to the legatee.

B. The personal representative may give written notice to the creditor holding any debt to which subsection A applies that there is no right of exoneration for such debt pursuant to this section. Such notice shall include a copy of this section. Any such notice shall be sent by certified mail (i) to the address the creditor last provided to the debtor as the address to which notices to the creditor are to be sent; (ii) if the personal representative cannot reasonably determine the address to which notices to the creditor are to be sent, to the address the creditor last provided to the debtor as the address at which payments to the creditor are to be made; or (iii) if the personal representative cannot reasonably determine either the address to which notices to the creditor are to be sent or at which payments to the creditor are to be made, to (a) the address of the creditor's registered agent on file with the Virginia State Corporation Commission or (b) if there is no such registered agent on file, to the creditor's last known address. The creditor holding such debt may file a claim for such debt with the commissioner of accounts pursuant to § 64.2-552 on or before the later of one year after the qualification of the personal representative of the decedent's estate or six months after the personal representative gives such written notice to the creditor. Once the personal representative has given notice to the creditor as provided in this section, unless the creditor files a timely claim against the estate as set forth in this subsection, the liability of a personal representative or his surety for such debt shall not exceed the assets of the decedent remaining in the possession of the personal representative and available for application to the debt pursuant to § 64.2-528 at the time the creditor presents a demand for payment of such debt to the personal representative. Nothing in this section shall affect either the liability of the estate for such debt to the extent of the decedent's assets remaining at the time a claim is filed or the liability of the beneficiaries that receive the decedent's assets to the extent of such receipt.

In the event that any such claim is timely filed with the commissioner of accounts, the personal representative shall give the specific beneficiary receiving such real or personal property written notice, within 90 days after such claim is filed, to obtain from the creditor the release of the estate from such claim. The notice to a beneficiary may be made to the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian or conservator of an incapacitated beneficiary, a committee of a convict or insane beneficiary, or the duly qualified guardian of a minor or, if none exists, a custodial parent of a minor. If the estate has not been released from such claim after the later of 180 days from such notice or one year from qualification, the personal representative may (a) sell the real or personal property that is the subject of a specific devise or bequest and that is also subject to the claim, (b) apply the proceeds of sale to the satisfaction of the claim, and (c) distribute any excess proceeds from such sale of the specific beneficiary of such property. If the proceeds of such sale are insufficient to satisfy the debt in full, the deficiency shall remain a debt of the estate to be satisfied from the other assets of the estate in accordance with applicable law. If such real property is subject to a transfer on death deed and is also subject to the claim, the personal representative may proceed as provided in § 64.2-634 to enforce the liability for such claim against such property.

C. Subsection A shall not apply to any mortgage, pledge, security interest, or other lien existing at the date of death of the testator against any specifically devised or bequeathed real or personal property, or any real property subject to a transfer on death deed, that was granted by an agent acting within the authority of a durable power of attorney for the testator while the testator was incapacitated. For the purposes of this section, (i) no adjudication of the testator's incapacity is necessary, (ii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator, and (iii) an incapacitated testator is one who is impaired by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause creating a lack of sufficient understanding or capacity to make or communicate responsible decisions. This subsection shall not apply (a) if the mortgage, pledge, security interest, or other lien granted by the agent on the specific property is thereafter ratified by the testator while he is not incapacitated or (b) if the durable power of attorney was limited to one or more specific purposes and was not general in nature.

D. Subsection A shall not apply to any mortgage, pledge, security interest, or other lien existing at the date of the death of the testator against any specific devise or bequest of any real or personal property, or any real property subject to a transfer on death deed, that was granted by a conservator, guardian, or committee of the testator. This subsection shall not apply if, after the mortgage, pledge, security interest, or other lien granted by the conservator, guardian, or committee, there is an adjudication that the testator's disability has ceased and the testator survives that adjudication by at least one year.

E. Nothing in this section shall affect the priority of a secured debt with respect to the collateral securing such debt.

2007, c. 341, § 64.1-157.1; 2012, cc. 476, 507, 614; 2013, c. 390; 2017, cc. 34, 139.

Article 6. Liability of Real Estate to Debts.

§ 64.2-532. Real estate of decedent as assets for payment of debts.

If a decedent's personal estate is insufficient to satisfy the decedent's debts and lawful demands against his estate, all real estate of the decedent, including such real estate that remains after satisfying the debts with which the real estate was charged or was subject to under the decedent's will, are assets for the payment of the decedent's debts and all lawful demands against his estate. A decedent's real estate shall be applied to his debts and lawful demands against his estate in the same order that the personal estate of a decedent is applied pursuant to § 64.2-528.

Code 1950, § 64-171; 1968, c. 656, § 64.1-181; 2012, c. 614.

§ 64.2-533. Administration of assets for payment of debts.

The circuit court in which a report of the accounts of a decedent's personal representative and of the debts and demands against the decedent's estate is or may be filed may administer the real estate of the decedent in the possession of the decedent's personal representative that is an asset for the payment of the decedent's debts and demands against the decedent's estate, or any circuit court may administer such real estate.

Code 1950, § 64-172; 1968, c. 656, § 64.1-182; 2012, c. 614.

§ 64.2-534. Liability of heir or devisee for value of real estate sold and conveyed; validity of premature conveyances.

A. Any heir or devisee who sells and conveys any real estate that is an asset for the payment of a decedent's debts or lawful demands against his estate pursuant to § 64.2-532 is liable for the value of such real estate, with interest, to those persons entitled to be paid out of the real estate.

B. Notwithstanding the provisions of subsection A, the real estate sold or conveyed is not liable to those persons entitled to be paid out of the real estate provided that (i) the sale was made more than one year after the death of the decedent, (ii) the conveyance was bona fide, and (iii) at the time of such conveyance, no action has been commenced for the administration of the real estate and no reports have been filed of the debts and demands of such creditors.

C. No sale and conveyance of such real estate made by an heir or devisee within one year after the death of the decedent is valid against creditors of such decedent, except as otherwise provided in § 64.2-535, provided that any sale and conveyance made within one year after the death of a decedent is valid against creditors as if it were made more than one year after the death of the decedent if no action has been commenced for the administration of the real estate and no report of the debts and demands has been filed within one year after the death of the decedent.

Code 1950, § 64-173; 1950, p. 606; 1968, c. 656, § 64.1-183; 2012, c. 614; 2015, c. 332.

§ 64.2-535. When sale and conveyance within one year valid against creditors; proceeds paid to special commissioner; bond to obtain proceeds.

A. For purposes of this section:

"Net proceeds" means the purchase price for the real estate, including money, deferred purchase money obligations, and other securities, remaining after the payment of the expenses of sale ordinarily paid by the seller in sales of such real estate and the discharge of indebtedness and encumbrances that the real estate is primarily liable for by law.

B. Any sale and conveyance of real estate that is an asset for the payment of a decedent's debts or lawful demands against his estate pursuant to § 64.2-532 made within one year after the death of the decedent is valid against creditors of such decedent, if such real estate is sold and conveyed pursuant to a decree of a court of competent jurisdiction in an action for partition, sale of lands of persons under a disability, or other judicial sale, and the net proceeds of sale are paid to a special commissioner appointed by the court.

C. The special commissioner shall hold the net proceeds paid to him in lieu of the real estate subject to the claims of the decedent's creditors in the same manner and to the same extent as such real estate would have been if not sold until at least one year after the death of the decedent. If no claim has been asserted against the net proceeds, the special commissioner shall distribute the net proceeds to those creditors entitled thereto in proportion to their interest in the real estate upon (i) the expiration of the one-year period or (ii) at any time within the one-year period upon posting bond with such surety as may be prescribed by the court to secure any claims against the real estate or net proceeds.

D. A purchaser of any real estate sold and conveyed in accordance with this section is not required to see to the application of the purchase money.

E. The special commissioner who receives and holds such net proceeds or refunding bond shall give such bond as required by the court appointing him.

Code 1950, § 64-173.1; 1968, c. 656, § 64.1-184; 1996, c. 65; 2012, c. 614.

§ 64.2-536. Liability of heir or devisee; action by personal representative or creditor; recording notice of lis pendens; evidence.

An heir or devisee may be sued by the personal representative or any creditor to whom a claim is due for which the estate descended or devised is liable, or for which the heir or devisee is liable with regard to such estate. Any judgment for such a claim entered against the personal representative of the decedent is prima facie evidence of the claim against the heir or devisee in a suit against the heir or devisee by the personal representative or any creditor. In any suit by the personal representative or any creditor pursuant to this article, he shall record a notice of lis pendens as required by § 8.01-268 at the time of filing such suit. The personal representative or creditor has the burden to show to the satisfaction of the court that there are not sufficient personal assets in the estate to satisfy all claims against the estate.

Code 1950, § 64-174; 1968, cc. 515, 656, § 64.1-185; 2012, c. 614.

§ 64.2-537. Action to enforce claim of less than $100; notice.

No action may be brought pursuant to this article where the amount of the claim does not exceed $100, unless, at least 30 days before the action was filed, the person or estate that is liable has been given notice that such action would be brought if the amount of the claim was not paid within such time.

Code 1950, § 64-175; 1968, c. 656, § 64.1-186; 2012, c. 614; 2014, c. 532.

§ 64.2-538. Lien acquired during lifetime of decedent not affected.

This article shall not affect any lien acquired during the lifetime of the decedent.

Code 1950, § 64-176; 1968, c. 656, § 64.1-187; 2012, c. 614.

Article 7. Apportionment of Estate Taxes.

§ 64.2-539. Definitions.

For the purposes of this article:

"Gross estate" includes any property or interest that is required to be included in the gross estate of the decedent under the estate tax law of the United States, increased by any "adjusted taxable gifts" as defined in § 2001(b) of the Internal Revenue Code.

"Persons interested in the estate" includes all persons, firms, and corporations who may be entitled to receive or who have received any property or interest that is required to be included in the gross estate of the decedent or any benefit whatsoever with respect to any such property or interest, whether under a will, by intestacy, or by reason of any transfer, trust, estate, interest, right, power, or relinquishment of power taxable under any estate tax law of the Commonwealth, any other state, or the United States heretofore or hereafter enacted.

Code 1950, § 64-150; 1968, c. 656, § 64.1-160; 1979, c. 559; 1981, c. 98; 1994, c. 917; 2012, c. 614.

§ 64.2-540. Apportionment required.

A. Except as provided in subsection B, whenever it appears upon any settlement of accounts or in any other appropriate action or proceeding that an executor, administrator, curator, trustee, or other person acting in a fiduciary capacity has paid an estate tax levied or assessed under the provisions of any estate tax law of the Commonwealth, any other state, or the United States, upon or with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the tax so paid, together with any interest and penalty required by the taxing authority to be paid, shall be prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. Such apportionment shall be made in the proportion that the value of the property, interest, or benefit of each such person bears to the total value of the property, interests, and benefits received by all such persons interested in the estate. However, in making such proration each person shall have the benefit of any exemptions, deductions, and exclusions allowed by law in respect of the person or the property passing to him, and where a trust is created or other provision is made giving a person an interest in income, an estate for years, an estate for life, or any other temporary interest or estate in any property or fund, the tax on such temporary interest or estate shall be charged against and paid out of the corpus of such property or fund without apportionment between the temporary interests or estates and any remainder interests, and any interest and penalty required by the taxing authority to be paid may be charged against either the temporary interest, estate, or corpus, or partially against the temporary interest, estate, or corpus, as determined by the fiduciary paying the tax, provided that the determination is made so as to fairly balance all interests in the property or fund.

B. The amount of tax paid upon or with respect to property included in the decedent's gross estate under § 2044 of the Internal Revenue Code, as amended, or any successor provision relating to certain property for which the marital deduction was previously allowed, shall be the excess of (i) the total estate tax levied or assessed under the provisions of the estate tax laws of the Commonwealth, any other state, and the United States over (ii) the estate tax that would have been levied or assessed under those provisions if the § 2044 property had not been included in the gross estate. The tax paid upon or with respect to the § 2044 property shall be prorated according to subsection A as if no other estate tax were payable under the laws of the Commonwealth, any other state, and the United States, and as if the § 2044 property constituted the entire gross estate; but it shall be prorated only among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit of such property accrues. The tax determined under clause (ii) shall be prorated according to subsection A as if no other estate tax were payable under the laws of the Commonwealth, any other state, and the United States, and as if the § 2044 property were not included in the gross estate. This subsection shall apply only to estates of persons dying on or after July 1, 1986.

C. The personal representative of an estate which for tax purposes includes § 2044 property owes a duty of good faith and fair dealing to all persons interested in the estate to whom or for whom the § 2044 property may be transferred or held. The duty of good faith includes a duty to keep such persons or their designated representative reasonably informed as to the contents of the returns to be filed and as to all administrative and judicial proceedings that concern the taxes to be paid with respect to the § 2044 property, and to provide copies of the relevant portions of all returns to be filed with respect to such taxes. The designated representative of such persons shall be invited to attend any administrative conference or proceeding where valuation issues may be discussed that would have a bearing on the taxes to be paid with respect to the § 2044 property. This subsection shall apply only to estates of persons for which a federal estate tax return is required to be filed on or after July 1, 1994.

Code 1950, § 64-151; 1952, c. 294; 1954, c. 664; 1968, c. 656, § 64.1-161; 1979, c. 559; 1986, c. 399; 1994, c. 917; 1997, c. 254; 2012, c. 614.

§ 64.2-541. Recovery by executor when part of estate not in his possession.

If any property required to be included in the gross estate is not in the possession of the executor, administrator, or other fiduciary, he shall recover from the person who is in possession of such property, or from the persons interested in the estate, the amount of tax payable by the persons interested in the estate that is chargeable to such persons under the provisions of this article.

Code 1950, § 64-152; 1968, c. 656, § 64.1-162; 1986, c. 399; 2012, c. 614.

§ 64.2-542. Transfers not required until tax ascertained or security given.

An executor, administrator, or other fiduciary is not required to transfer, pay over, or distribute any fund or property subject to an estate tax imposed by the Commonwealth, any other state, or the United States until the devisee, legatee, distributee, or other person to whom such property is transferred pays such fiduciary the amount of such tax due, or, if the apportionment of tax has not been determined, furnishes adequate security for such payment.

Code 1950, § 64-153; 1968, c. 656, § 64.1-163; 1994, c. 917; 2012, c. 614.

§ 64.2-543. Contrary provisions of will or other instrument to govern.

A. For purposes of this section:

"Includable beneficial interest" means any property, interest, or benefit included in a person's estate for estate tax purposes that passes pursuant to an instrument other than such person's will.

B. The provisions of this article shall not impair the right or power of any person by will or by written instrument executed inter vivos to make direction for the payment of estate taxes and to designate the fund or property out of which such payment shall be made. Such designated funds or property may, in addition to any property passing by testate or intestate succession, include any includable beneficial interest. Unless a larger amount is charged to a specific includable beneficial interest by the instrument creating the interest, the maximum amount of tax that each such includable beneficial interest may be charged shall be limited to its share, as determined pursuant to § 64.2-540 for the apportionment of taxes.

Code 1950, § 64-155; 1968, c. 656, § 64.1-165; 1994, c. 917; 2012, c. 614.

§ 64.2-544. Construction of direction to pay all taxes imposed on account of testator's death.

A. A general direction in a will, trust instrument, or other document to pay all taxes imposed on account of a testator's or settlor's death or similar language shall not be construed to include the following taxes unless the testator or settlor expressly manifests an intention that such taxes be paid out of his estate, trust, or other property by reference to the particular chapter, title, or section of the Internal Revenue Code providing for such taxes:

1. Additional tax imposed upon disposition or cessation of qualified use by the qualified heir with respect to qualified use property under § 2032A;

2. Taxes on general power of appointment property includable in the estate of the testator or settlor under § 2041;

3. Taxes on qualified terminable interest property includable in the estate of the testator or settlor under § 2044;

4. Taxes payable under § 2056A, upon a taxable event with respect to a qualified domestic trust as defined in that section;

5. Any generation-skipping transfer tax under Chapter 13 except direct skips occurring at death for estates of decedents dying on or after July 1, 1994; and

6. Taxes payable under § 4980A, on excess retirement accumulation.

B. Unless a contrary intention is manifest, such taxes shall be apportioned and charged to each item of funds or property generating them in the manner provided in this article.

C. The reference in subsection A to any section or chapter is to the Internal Revenue Code of 1986, as amended, and shall be deemed to refer to any corresponding successor sections, chapters, or Code.

1994, c. 917, § 64.1-165.1; 2012, c. 614.

Article 8. Liability of Representatives; Administrators De Bonis Non.

§ 64.2-545. Transfer of assets to administrator de bonis non; administration of assets.

A. If the powers of a personal representative have ceased and there is an administrator de bonis non of the decedent's estate, the personal representative may pay and deliver to such administrator de bonis non, with the consent of the court or clerk before which the administrator de bonis non qualified, the assets of the decedent, whether converted or not, for which such former personal representative is responsible. The court or clerk shall not consent to the payment and delivery of such assets to the administrator de bonis non unless the administrator de bonis non gives a bond sufficient to cover the additional assets to be paid or delivered to him. The administrator de bonis non shall administer such assets paid or delivered to him as assets received in due course of administration. The administrator de bonis non shall provide a receipt for such assets in the form of a voucher in the settlement of the accounts of the former personal representative. The former personal representative shall not be liable for the assets lawfully paid or delivered to the administrator de bonis non.

B. The administrator de bonis non may bring an action against the former personal representative or his estate for mismanagement or to compel the payment and delivery to the administrator de bonis non of the assets of the decedent that were wrongfully converted by the former personal representative.

C. Nothing contained in this section shall (i) limit the liability of the former personal representative and his sureties for any breach of duty committed by him with respect to the assets of the decedent's estate before they were paid over and delivered to the administrator de bonis non by him or (ii) bar the beneficiaries, creditors, or any other parties in interest from bringing any action against the former personal representative for his acts or omissions while serving as the personal representative.

Code 1950, § 64-156; 1968, c. 656, § 64.1-166; 1991, c. 58; 2012, c. 614.

§ 64.2-546. Action against representative of executor for waste.

An action may be maintained for waste of a decedent's estate against (i) the personal representative of a person who, without any lawful authority, assumes to act as an executor or (ii) the personal representative of a rightful executor or administrator.

Code 1950, § 64-157; 1968, c. 656, § 64.1-167; 2012, c. 614.

§ 64.2-547. Revival of judgment by administrator de bonis non.

If an action is pending or a judgment has been rendered in the Commonwealth in favor of a personal representative upon a contract made during or for a cause of action that accrued in the lifetime of the decedent, the administrator de bonis non of the decedent may petition for execution upon such judgment, or to revive the pending action if the personal representative who brought the action could have maintained the same.

Code 1950, § 64-158; 1968, c. 656, § 64.1-168; 2012, c. 614.

§ 64.2-548. Action against surety of personal representative; procedure.

A. An action may be brought against the surety of the personal representative for failure of the personal representative to discharge his duties faithfully if an execution on a judgment against a personal representative is returned unsatisfied.

B. The surety may plead any pleas and offer any evidence that the personal representative could have made or offered in an action against the surety of the personal representative for a devastavit.

Code 1950, §§ 64-159, 64-160; 1968, c. 656, §§ 64.1-169, 64.1-170; 2012, c. 614.

§ 64.2-549. Liability of personal representative or his surety.

The liability of a personal representative or his surety shall not exceed the assets of the decedent by reason of any omission or mistake in pleading or false pleading by such representative.

Code 1950, § 64-160; 1968, c. 656, § 64.1-170; 2012, c. 614.

Article 9. Settlement of Accounts and Distribution.

§ 64.2-550. Proceedings for receiving proof of debts by commissioners of accounts.

A. A commissioner of accounts who has for settlement the accounts of a personal representative of a decedent shall, when requested to so do by a personal representative or any creditor, legatee, or distributee of a decedent, or may at any other time determined by the commissioner of accounts, even though no accounting is pending, conduct a hearing for receiving proof of debts and demands against the decedent or the decedent's estate. The commissioner of accounts shall publish notice of the hearing at least 10 days before the date set for the hearing in a newspaper published or having general circulation in the jurisdiction where the personal representative qualified. and shall also post a notice of the time and place of the hearing at the front door of the courthouse of the court of the jurisdiction where the personal representative qualified. The commissioner of accounts may adjourn the hearing from time to time as necessary.

B. The personal representative shall give written notice by personal service or by regular, certified, or registered mail at least 10 days before the date set for the hearing to any claimant of a disputed claim that is known to the personal representative at the last address of the claimant known to the personal representative. The notice shall inform the claimant of his right to attend the hearing and present his case, his right to obtain another hearing date if the commissioner of accounts finds the initial date inappropriate, and the fact that the claimant will be bound by any adverse ruling. The personal representative shall also inform the claimant of his right to file exceptions with the circuit court in the event of an adverse ruling. The personal representative shall file proof of any mailing or service of notice with the commissioner of accounts.

C. The commissioner of accounts may direct the personal representative, the claimant, or both of them to institute a proceeding in the circuit court to establish the validity or invalidity of any claim or demand that the commissioner of accounts deems not otherwise sufficiently proved.

Code 1950, §§ 64-161, 64-162; 1966, c. 335; 1968, cc. 385, 656, §§ 64.1-171, 64.1-172; 1981, c. 484; 1989, c. 492; 2012, c. 614.

§ 64.2-551. Account of debts by commissioners of accounts.

The commissioner of accounts, within 60 days from the date of the hearing for receiving proof of debts and demands against the decedent or the decedent's estate or the date of the last adjournment of any such hearing, shall make out an account of all such debts or demands as have been sufficiently proved, stating separately the debts and demands of each class.

Code 1950, § 64-162; 1966, c. 335; 1968, c. 656, § 64.1-172; 2012, c. 614.

§ 64.2-552. How claims filed before commissioners of accounts; tolling of limitations period.

A. Any person who seeks to prove that he has a debt or demand against the decedent or the decedent's estate shall file his claim in writing with the commissioner of accounts, who shall endorse upon it the date of the filing and sign the endorsement in his official character.

B. If the commissioner of accounts recommends in writing the recovery or enforcement of a claim for a debt or demand against the decedent or the decedent's estate, the filing of such claim with the commissioner of accounts pursuant to subsection A shall toll any limitations period that would otherwise bar an action for the recovery or enforcement of the claim or bar the filing of such claim until the termination of the proceedings commenced under § 64.2-550.

Code 1950, § 64-163; 1968, c. 656, § 64.1-173; 1989, c. 492; 2012, c. 614.

§ 64.2-553. When court to order payment of debts.

A. Upon confirmation of a report of the accounts of any personal representative and of the debts and demands against the decedent's estate pursuant to Chapter 12 (§ 64.2-1200 et seq.), the court shall order that so much of the estate in the possession of the personal representative as is proper be applied to the payment of such debts and demands. The court, in its discretion, may order that a portion of the estate be reserved to pay all or a proportion of a claim of a surety for the decedent or any other contingent claim against the estate, or to pay all or a proportion of any other claim not finally passed upon, provided that creditors of the same class shall be paid in the same proportion.

B. For any claim allowed subsequent to any dividend where the court ordered that a portion of the estate be reserved to pay such a claim, the court shall order that the claim be paid from the estate in the possession of the personal representative, regardless of the existence of any debt or demand of superior dignity for which no reservation has been ordered. The claim shall be paid in the same proportion as creditors of the same class, provided, however, that whether there be enough reserved to pay the claim pursuant to this subsection shall not affect any dividend already paid.

C. If there are assets remaining in the possession of the personal representative after claims are paid pursuant to subsections A and B, or if further assets come into the possession of the personal representative, such surplus shall be divided among all the decedent's creditors who have proved debts and demands against the decedent's estate in the order and proportion in which they may be entitled.

Code 1950, §§ 64-164, 64-165, 64-166; 1968, c. 656, §§ 64.1-174, 64.1-175, 64.1-176; 2012, c. 614.

§ 64.2-554. When distribution may be required; refunding bond.

A personal representative shall not be compelled to pay any legacy made in the will or to distribute the estate of the decedent for six months from the date of the order conferring authority on the first executor or administrator of such decedent and, except when it is otherwise specifically provided for in the will, the personal representative shall not be compelled to make such payment or distribution until the legatee or distributee gives a bond, executed by himself or some other person, with sufficient surety, to refund a due proportion of any debts or demands subsequently proved against the decedent or the decedent's estate and of the costs of the recovery of such debts or demands. Such bond shall be filed and recorded in the clerk's office of the court that may have decreed such payment or distribution or in which the accounts of such representative may be recorded.

Code 1950, § 64-167; 1968, c. 656, § 64.1-177; 2012, c. 614.

§ 64.2-555. When fiduciaries are protected by refunding bonds.

If any personal representative pays any legacy made in the will or distributes any of the estate of the decedent and a proper refunding bond for what is so paid or distributed, with sufficient surety at the time it was made, is filed and recorded pursuant to § 64.2-554, such personal representative shall not be personally liable for any debt or demand against the decedent, whether it be of record or not, unless, within six months from his qualification or before such payment or distribution, he had notice of such debt or demand. However, if any creditor of the decedent establishes a debt or demand against the decedent's estate by judgment therefor or by confirmation of a report of the commissioner of accounts that allows the debt or demand, a suit may be maintained on such refunding bond, in the name of the obligee or his personal representative, for the benefit of such creditor, and a recovery shall be had thereon to the same extent that would have been had if such obligee or his personal representative had satisfied such debt or demand.

Code 1950, § 64-168; 1968, c. 656, § 64.1-178; 2012, c. 614.

§ 64.2-556. Order to creditors to show cause against distribution of estate to legatees or distributees; liability of legatees or distributees to refund.

A. When a report of the accounts of any personal representative and of the debts and demands against the decedent's estate has been filed in the office of a clerk of a court, whether under §§ 64.2-550 and 64.2-551 or in a civil action, the court, after six months from the qualification of the personal representative, may, on motion of the personal representative, or a successor or substitute personal representative, or on motion of a legatee or distributee of the decedent, enter an order for the creditors and all other persons interested in the estate of the decedent to show cause on the day named in the order against the payment and delivery of the estate of the decedent to his legatees or distributees. A copy of the order shall be published once a week for two successive weeks, in one or more newspapers, as the court directs; the costs of such publication shall be paid by the petitioner or applicant. On or after the day named in the order, the court may order the payment and delivery to the legatees or distributees of the whole or a part of the money and other estate not before distributed, with or without a refunding bond, as it prescribes. However, every legatee or distributee to whom any such payment or delivery is made, and his representatives, may, in a suit brought against him within five years after such payment or delivery is made, be adjudged to refund a due proportion of any claims enforceable against the decedent or his estate that have been finally allowed by the commissioner of accounts or the court, or that were not presented to the commissioner of accounts, and the costs of the recovery of such claim. In the event any claim becomes known to the fiduciary after the notice for debts and demands but prior to the entry of an order of distribution, the claimant, if the claim is disputed, shall be given notice in the form provided in § 64.2-550 and the order of distribution shall not be entered until after expiration of 10 days from the giving of such notice. If the claimant, within such 10-day period, indicates his desire to pursue the claim, the commissioner of accounts shall schedule a date for hearing the claim and for reporting thereon if action thereon is contemplated under § 64.2-550.

B. Any personal representative who has in good faith complied with the provisions of this section and has, in compliance with or, as subsequently approved by, the order of the court, paid and delivered the money or other estate in his possession to any party that the court has adjudged entitled thereto shall not be liable for any demands of creditors and all other persons.

C. Any personal representative who has in good faith complied with the provisions of this section and has, in compliance with, or as subsequently approved by, the order of the court, paid and delivered the money or other estate in his possession to any party that the court has adjudged entitled thereto, even if such distribution shall be prior to the expiration of the period of one year provided in § 64.2-302, Article 1.1 (§ 64.2-308.1 et seq.) of Chapter 3, or § 64.2-313, 64.2-448, or 64.2-457, shall not be liable for any demands of spouses, persons seeking to impeach the will or establish another will, or purchasers of real estate from the personal representative, provided that the personal representative has contacted any surviving spouse known to it having rights of renunciation and ascertained that the surviving spouse had no plan to renounce the will, such intent to be stated in writing in the case of renunciation under § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.) of Chapter 3, as applicable, and that the personal representative has not been notified in writing of any person's intent to impeach the will or establish a later will in the case of persons claiming under § 64.2-448 or 64.2-457 or under a later will.

D. In the case of such distribution prior to the expiration of such one-year period, the personal representative shall take refunding bonds, without surety, to the next of kin or legatees to whom distribution is made, to protect against the contingencies specified in this section.

Code 1950, § 64-169; 1966, c. 335; 1968, c. 656, § 64.1-179; 1980, c. 439; 1982, c. 588; 1989, c. 492; 1991, c. 527; 1996, c. 352; 2005, c. 681; 2012, c. 614; 2016, cc. 187, 269.

§ 64.2-557. Form for notice to show cause under § 64.2-556.

Any notice to show cause published or posted in pursuance of the requirements of § 64.2-556 may be substantially in the form following:

Virginia: In the _______________ Court of _______________

the __________ day of _______________

Re: ____________________, deceased.

SHOW CAUSE ORDER

It appearing that a report of the accounts of ____________________, Personal Representative of the estate of ____________________, deceased, and of the debts and demands against (his) (her) estate has been filed in the Clerk's Office, and that six months have elapsed since the qualification, on motion of ____________________, (a distributee;) (a legatee;) (the personal representative;) IT IS ORDERED that the creditors of, and all others interested in, the estate do show cause, if any they can, on the __________ day of _______________ (before this Court at its courtroom) at ____________________ against the payment and delivery of the Estate of ____________________, deceased, to (the distributees) (the legatees) (without requiring refunding bonds) (with or without refunding bonds as the Court prescribes).

A Copy -- Teste:
________________________________________
Clerk

________________________________________, p.q.

Code 1950, § 64-170; 1968, c. 656, § 64.1-180; 2012, c. 614.

§ 64.2-558. Distribution to persons standing in loco parentis to certain beneficiaries.

Notwithstanding any provision of law to the contrary, a distribution to a person standing in loco parentis to an incapacitated person or an infant pursuant to authorization under subdivision B 17 of § 64.2-105 or a comparable provision in a will or trust instrument may be approved by the commissioner of accounts without regard to the amount or value of the fund or property.

1980, c. 507, § 64.1-180.1; 1997, c. 801; 2012, c. 614.

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.

Article 2. Payments, Settlements, or Administration Without Appointment of Representative.

§ 64.2-606. Transfer of certain vessels registered with U.S. Coast Guard and transfer of motor vehicles.

A. When a resident of the Commonwealth owning a vessel registered with the U.S. Coast Guard dies and there has been no qualification on the decedent's estate, a transfer of ownership may be made by a legatee or distributee if he presents a statement made by him to the U.S. Coast Guard stating that (i) there has not been and there is not expected to be a qualification on the estate and (ii) the decedent's debts have been paid in full or that the proceeds from the sale of such vessel will be used to apply against the decedent's debts. The statement shall state the decedent's name, residence at the time of death, and date of death, and the names of all other persons, if any, having an interest in the vessel who, if they have reached the age of majority, shall signify in writing their consent to such transfer of title.

B. A transfer of ownership of a motor vehicle may be made by a legatee or distributee pursuant to § 46.2-634.

1980, c. 731, § 64.1-123.2; 1994, c. 399; 2012, c. 614.

§ 64.2-607. Transfer of evidences of indebtedness, securities, and stock held in decedents' estates.

When any executor or administrator duly appointed and qualified under this title has completed the distribution of the estate with the exception of transferring any evidences of indebtedness, securities, or stock in any corporation constituting a portion of such estate, such executor or administrator may file with the clerk of the court in which such executors or administrators qualified, a petition describing any such evidences of indebtedness, securities, and stock, stating that all debts of the decedent have been paid, and stating that a final accounting has been filed and approved. Upon receipt of the petition, the clerk shall issue a certificate certifying that the powers of such executor or administrator continue in full force and effect.

Code 1950, § 64-121.1; 1952, c. 329; 1968, c. 656, § 64.1-128; 2012, c. 614.

§ 64.2-608. Transfer of securities of nonresident decedents.

The stocks, bonds, or evidences of indebtedness issued by (i) the Commonwealth or any corporation created by the Commonwealth or (ii) any national bank or any other corporation created pursuant to federal law that has its principal office in the Commonwealth that are held in the name of a decedent domiciled outside of the Commonwealth at the time of his death and who is not known by the officer or agent charged with the duty of transferring such stocks, bonds, or evidences of indebtedness to have a personal representative qualified as such within the Commonwealth, may be transferred by the executor or administrator of the decedent qualified according to the laws of the decedent's domicile.

Code 1950, § 64-122; 1950, c. 895; 1968, c. 656, § 64.1-129; 2012, c. 614.

§ 64.2-609. Money and personal property belonging to nonresident decedents.

A. When any person, at the time of his death domiciled outside of the Commonwealth, owned stocks, bonds, securities, money, or tangible personal property located in the Commonwealth or was entitled to any debts, choses in action, or tangible personal property in the Commonwealth, the person, firm, or corporation holding such stocks, bonds, securities, money, debts, tangible personal property, and choses in action shall retain such assets for 90 days from the death of such decedent. After the 90-day period, the person, firm, or corporation shall pay over or deliver on demand such portion of the assets for which the person, firm, or corporation has received no legal notice of any lien or encumbrance to an executor, administrator, or other personal representative, qualified according to the laws of the decedent's domicile if the value of such assets in the Commonwealth is, to the knowledge of the person holding or owing such assets, less than $25,000. When the value of such stocks, bonds, securities, money, debts, tangible personal property, and choses in action is $25,000 or more, the holder may pay or deliver such assets to an executor, administrator, or other personal representative, qualified in accordance with the law of the decedent's domicile, 30 days after the holder gives public notice of his intention to make such a transfer by publication thereof once a week for four successive weeks in a newspaper of general circulation in the city, town, or county wherein the holder resides or has his principal place of business, provided that at the time of such payment or delivery, the holder has no actual notice of the appointment of a personal representative for such decedent in the Commonwealth and has received no legal notice of any lien or encumbrance upon such assets.

B. This section shall be construed as providing, as to the payment of money and the delivery of personal property belonging to nonresident decedents or their estates, optional methods of procedure in addition to those otherwise permitted or provided by law, including a comparable law of the state in which the nonresident decedents were domiciled, and shall not as to such matters add any limitations or restrictions to existing law.

Code 1950, § 64-123; 1956, c. 536; 1968, c. 656, § 64.1-130; 1970, c. 244; 1988, c. 370; 1996, c. 549; 2001, c. 368; 2009, c. 250; 2012, c. 614; 2014, c. 532.

§ 64.2-610. When court may allow another to qualify on estate.

A. Except during the pendency of a suit to contest the decedent's will or during the infancy or absence of the executor, the court where the will was admitted to probate or that has jurisdiction to grant administration on the decedent's estate, or the clerk of such court, shall, if there has been no executor or administrator on the decedent's estate for more than two months and on the motion of any person, order any person of the county or city to take into his possession the estate of such decedent and administer the same after requiring such person post a proper bond. However, any sheriff so ordered may decline the appointment if the appointment interferes with his current duties or obligations. The person ordered to take possession of the decedent's estate shall be the administrator, or administrator de bonis non, of the decedent, with his will annexed, if there be a will, and shall be entitled to all the rights and bound to perform all the duties of such administrator.

B. The court may, on reasonable notice to the person appointed, revoke the order made by it or its clerk and the court may, after reasonable notice to the parties in interest, permit the person to resign and allow any other person to qualify as executor or administrator.

C. When an estate is committed to a person pursuant to subsection A on the motion of a creditor or other person, the state tax due for such administration shall be paid by the party who made the motion and such tax shall be repaid to him by the administrator so appointed out of the first funds received by him for such estate.

Code 1950, § 64-124; 1968, c. 656, § 64.1-131; 1971, Ex. Sess., c. 155; 1980, c. 438; 1996, c. 317; 2012, c. 614.

§ 64.2-611. Disposition by sheriff of property when no person entitled thereto.

If any sheriff has in his possession any money or personal property of a decedent and, after reasonable diligence, is unable to ascertain the identity of any person entitled to such property, the sheriff shall sell such property at public auction within two years of coming into possession of such property. The sheriff shall post notices of the date, time, and place of the sale at least 10 days before the sale in three or more public places in his jurisdiction, or shall advertise the date, time, and place of the sale at least 10 days before the sale in a newspaper published or having general circulation in his jurisdiction. The proceeds of the sale of personal property, together with any such money of the decedent in the sheriff's possession, after the payment of all necessary expenses, shall be paid into the state treasury to the credit of the Literary Fund.

Code 1950, § 64-125; 1968, c. 656, § 64.1-132; 1971, Ex. Sess., c. 155; 2012, c. 614.

Article 3. Uniform Transfers on Death (Tod) Security Registration Act.

§ 64.2-612. Definitions.

In this article, unless the context otherwise requires:

"Beneficiary form" means a registration of a security that indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.

"Devisee" means any person designated in a will to receive a disposition of real or personal property.

"Heirs" means those persons, including the surviving spouse, who are entitled under the laws of intestate succession to the property of a decedent.

"Personal representative" includes an executor, administrator, successor, personal representative, special administrator, and a person who performs substantially the same function under the law governing his status.

"Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

"Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.

"Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.

"Security" means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account.

"Security account" means (i) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death, or (ii) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.

1994, c. 422, § 64.1-206.1; 2012, c. 614.

§ 64.2-613. Registration in beneficiary form; sole or joint tenancy ownership; applicable law.

A. Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.

B. A security may be registered in beneficiary form if the form is authorized by this article or a similar law of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent, or its office making the registration, or by a similar law of the state listed as the owner's address at the time of registration.

A registration governed by the law of a jurisdiction in which this article or a similar law is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

1994, c. 422, § 64.1-206.2; 2012, c. 614.

§ 64.2-614. Origination of registration in beneficiary form.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

1994, c. 422, § 64.1-206.3; 2012, c. 614.

§ 64.2-615. Form of registration in beneficiary form; effect.

A. Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of the beneficiary.

B. The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.

1994, c. 422, § 64.1-206.4; 2012, c. 614.

§ 64.2-616. Ownership on death of owner.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to any beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the names of any beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

1994, c. 422, § 64.1-206.5; 2012, c. 614.

§ 64.2-617. Protection of registering entity.

A. A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protection given to the registering entity by this article.

B. By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this article.

C. A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with § 64.2-616 and does so in good faith reliance (i) on the registration, (ii) on this article, and (iii) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representative, or on other information available to the registering entity. The protections of this article do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this article.

D. The protection provided by this article to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

1994, c. 422, § 64.1-206.6; 2012, c. 614.

§ 64.2-618. Nontestamentary transfer on death.

A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this article, and is not testamentary.

This article does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of the Commonwealth.

1994, c. 422, § 64.1-206.7; 2012, c. 614.

§ 64.2-619. Terms, conditions, and forms for registration; examples.

A. A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form and (ii) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death.

Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for "lineal descendants per stirpes." This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.

B. The following are illustrations of registrations in beneficiary form which a registering entity may authorize:

1. Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. Brown, Jr.

2. Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr.

3. Multiple owners-primary and secondary (substituted) beneficiaries: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr. SUB BENE Peter Q. Brown or John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr. LDPS.

1994, c. 422, § 64.1-206.8; 2012, c. 614.

Article 4. Nonprobate Transfers on Death.

§ 64.2-620. Nonprobate transfers on death.

A. A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary.

Nontestamentary transfers also include writings stating that (i) money or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later; (ii) money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or (iii) any property controlled by or owned by the decedent before death that is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.

B. This section does not limit rights of creditors under other laws of the Commonwealth.

2001, c. 583, § 64.1-45.3; 2012, c. 614.

Article 5. Uniform Real Property Transfer on Death Act.

§ 64.2-621. Definitions.

As used in this article:

"Beneficiary" means a person that receives property under a transfer on death deed.

"Designated beneficiary" means a person designated to receive property in a transfer on death deed.

"Joint owner" means an individual who owns property concurrently with one or more other individuals with a right of survivorship. "Joint owner" includes a joint tenant with the right of survivorship and tenant by the entirety with the right of survivorship. "Joint owner" does not include a tenant in common.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Property" means an interest in real property located in the Commonwealth that is transferable on the death of the owner.

"Transfer on death deed" means a deed authorized under this article.

"Transferor" means an individual who makes a transfer on death deed.

2013, c. 390.

§ 64.2-622. Applicability.

This article applies to a transfer on death deed made before, on, or after July 1, 2013, by a transferor dying on or after July 1, 2013.

2013, c. 390.

§ 64.2-623. Nonexclusivity.

This article does not affect any method of transferring property otherwise permitted under the law of the Commonwealth.

2013, c. 390.

§ 64.2-624. Transfer on death deed authorized.

An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed.

2013, c. 390.

§ 64.2-625. Transfer on death deed revocable.

A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.

2013, c. 390.

§ 64.2-626. Transfer on death deed nontestamentary.

A transfer on death deed is nontestamentary.

2013, c. 390.

§ 64.2-627. Capacity of transferor.

The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.

2013, c. 390.

§ 64.2-628. Requirements.

A transfer on death deed:

1. Except as otherwise provided in subdivision 2, shall contain the essential elements and formalities of a properly recordable inter vivos deed;

2. Shall state that the transfer to the designated beneficiary is to occur at the transferor's death;

3. Shall be recorded before the transferor's death in the land records of the clerk's office of the circuit court in the jurisdiction where the property is located;

4. Shall comply with the requirements for recordation set forth in Chapter 6 (§ 55-106 et seq.) of Title 55 and shall be indexed by the clerk of court under the name of the transferor as grantor;

5. Unless the transfer is for consideration, shall be exempt from recordation tax as provided by subsection J of § 58.1-811;

6. For property owned by joint owners to be effective, shall be executed by all joint owners; and

7. Shall be considered a deed for purposes of complying with the requirements of § 17.1-223.

2013, c. 390.

§ 64.2-629. Notice, delivery, acceptance, consideration not required.

A transfer on death deed is effective without:

1. Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or

2. Consideration.

2013, c. 390.

§ 64.2-630. Revocation by instrument authorized; revocation by act not permitted.

A. Subject to subsection B, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:

1. Is one of the following:

a. A transfer on death deed that revokes the transfer on death deed or part of the transfer on death deed expressly;

b. A transfer on death deed that names a designated beneficiary that is inconsistent with the designated beneficiary in a prior transfer on death deed;

c. An instrument of revocation that expressly revokes the transfer on death deed or part of the transfer on death deed; or

d. An inter vivos deed that expressly revokes the transfer on death deed or part of the transfer on death deed.

2. Is acknowledged by the transferor after the acknowledgment of the transfer on death deed being revoked and recorded before the transferor's death in the land records of the clerk's office of the circuit court where the deed is recorded.

B. If a transfer on death deed is made by more than one transferor:

1. Revocation by a transferor does not affect the transfer on death deed as to the interest of another transferor; and

2. A transfer on death deed of joint owners is revoked only if it is revoked by all of the living joint owners.

C. After a transfer on death deed is recorded, it can be revoked only by an effective revocatory instrument recorded prior to the death of the transferor and may not be revoked by a revocatory act taken against or on the original or a copy of the recorded transfer on death deed.

D. This section does not limit the effect of an inter vivos transfer of the property.

2013, c. 390.

§ 64.2-631. Effect of transfer on death deed during transferor's life.

During a transferor's life, a transfer on death deed does not:

1. Affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;

2. Affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed;

3. Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;

4. Affect the transferor's or designated beneficiary's eligibility for any form of public assistance;

5. Create a legal or equitable interest in favor of the designated beneficiary; or

6. Subject the property to claims or process of a creditor of the designated beneficiary.

2013, c. 390.

§ 64.2-632. Effect of transfer on death deed at transferor's death.

A. Except as otherwise provided in the transfer on death deed, in this section, in § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.) of Chapter 3, as applicable, or in Chapter 22 (§ 64.2-2200 et seq.) or 25 (§ 64.2-2500 et seq.), on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death:

1. Subject to subdivision 2, the interest in the property is transferred to and vests in the designated beneficiary at the death of the transferor in accordance with the deed.

2. The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.

3. Subject to subdivision 4, concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.

4. If the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property, the share of one that lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.

5. If, after making a transfer on death deed, the transferor is divorced a vinculo matrimonii or his marriage is annulled, the divorce or annulment revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise.

B. Subject to Chapter 6 (§ 55-106 et seq.) of Title 55, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor's death. For purposes of this subsection and Chapter 6 (§ 55-106 et seq.) of Title 55, the transfer and conveyance of the property subject to the transfer on death deed shall be deemed to be effective at the transferor's death.

C. If a transferor is a joint owner and is:

1. Survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship but remains subject to the naming of the designated beneficiary in the transfer on death deed; or

2. The last surviving joint owner, the transfer on death deed is effective.

D. A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.

2013, c. 390; 2016, cc. 187, 269.

§ 64.2-633. Disclaimer.

A beneficiary may disclaim all or part of the beneficiary's interest as provided by Chapter 26 (§ 64.2-2600 et seq.).

2013, c. 390.

§ 64.2-634. Liability for creditor claims and statutory allowances.

A. After the death of the transferor, and subject to the transferor's right to direct the source from which liabilities will be paid, property transferred at the transferor's death by a transfer on death deed is subject to claims of the transferor's creditors, costs of administration of the transferor's estate, the expenses of the transferor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children of the transferor including the family allowance, the right to exempt property, and the homestead allowance to the extent the transferor's probate estate is inadequate to satisfy those claims, costs, expenses, and allowances.

B. If more than one property is transferred by one or more transfer on death deeds, the liability under subsection A is apportioned among the properties in proportion to their net values at the transferor's death.

C. A proceeding to enforce the liability under this section shall be commenced not later than one year after the transferor's death.

2013, c. 390.

§ 64.2-635. Optional form of transfer on death deed.

The following form may be used to create a transfer on death deed. The other sections of this article govern the effect of this or any other instrument used to create a transfer on death deed:

THIS DEED MUST BE RECORDED BEFORE THE DEATH OF THE OWNER(S), OR IT WILL NOT BE EFFECTIVE.

THIS DEED IS EXEMPT FROM RECORDATION TAXES UNDER § 58.1-811(J) OF THE CODE OF VIRGINIA OF 1950, AS AMENDED.

REVOCABLE TRANSFER ON DEATH DEED

THIS REVOCABLE TRANSFER ON DEATH DEED, dated as of the __________ day of _______________, is made by TRANSFEROR or TRANSFERORS (the Grantor(s)), whose address is ________________________________________.

This Revocable Transfer on Death Deed is made pursuant to the provisions of the Uniform Real Property Transfer on Death Act, Virginia Code § 64.2-621 et seq. In accordance with the provisions of the Uniform Real Property Transfer on Death Act, at my death, I transfer and convey my interest in the below described property to my designated beneficiaries as follows:

PRIMARY BENEFICIARY

I designate ____________________ as the designated beneficiary of the property if ____________________ survives me.

ALTERNATE BENEFICIARY -- Optional

If my primary designated beneficiary does not survive me, I designate ____________________ as my alternate designated beneficiary if my alternate designated beneficiary survives me.

PROPERTY:

The legal description of the real property that shall be transferred at my death pursuant to this Revocable Transfer on Death Deed is as follows:

INSERT LEGAL DESCRIPTION

RIGHT TO REVOKE AND METHOD TO REVOKE DEED:

Before my death, I have the right to revoke this deed.

Under the Uniform Real Property Transfer on Death Act, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:

1. Is one of the following:

a. A transfer on death deed that revokes the transfer on death deed or part of the transfer on death deed expressly;

b. A transfer on death deed that names a designated beneficiary that is inconsistent with the designated beneficiary in a prior transfer on death deed;

c. An instrument of revocation that expressly revokes the transfer on death deed or part of the transfer on death deed; or

d. An inter vivos deed that expressly revokes the transfer on death deed or part of the transfer on death deed.

2. Is acknowledged by the transferor after the acknowledgment of the transfer on death deed being revoked and recorded before the transferor's death in the land records of the clerk's office of the circuit court where the deed is recorded.

After this transfer on death deed is recorded, it can be revoked only by an effective revocatory instrument recorded prior to the death of the transferor and may not be revoked by a revocatory act taken against or on the original or a copy of the recorded transfer on death deed.

The execution and recordation of this transfer on death deed does not limit the effect of an inter vivos transfer of the property.

At my death, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at my death.

Witness the following signature and seals:

________________________________________ (SEAL)
TRANSFEROR

COMMONWEALTH OF VIRGINIA

CITY/COUNTY OF ____________________, to wit:

The foregoing instrument was acknowledged before me in the City/County of ____________________, Virginia this __________ day of _______________, by TRANSFEROR.

________________________________________
Notary Public

My commission expires: ____________________

Registration number: ____________________

2013, c. 390.

§ 64.2-636. Optional form of revocation.

The following form may be used to create an instrument of revocation under this article.

THIS REVOCATION MUST BE RECORDED BEFORE YOU DIE OR IT WILL NOT BE EFFECTIVE. THIS REVOCATION IS EFFECTIVE ONLY AS TO THE INTERESTS IN THE PROPERTY OF OWNERS WHO SIGN THIS REVOCATION.

THIS DEED IS EXEMPT FROM RECORDATION TAXES UNDER § 58.1-811(J) OF THE CODE OF VIRGINIA OF 1950, AS AMENDED.

REVOCATION OF TRANSFER ON DEATH DEED

THIS REVOCATION OF TRANSFER ON DEATH DEED, dated as of the __________ day of _______________, is made by TRANSFEROR OR TRANSFERORS (the Grantor(s)), whose address is ________________________________________.

This Revocation of Transfer on Death Deed is made pursuant to the provisions of the Uniform Real Property Transfer on Death Act, Virginia Code, § 64.2-621 et seq.

In accordance with the provisions of the Uniform Real Property Transfer on Death Act, I revoke all my previous transfers of the below described property by transfer on death deed:

INSERT LEGAL DESCRIPTION

Witness the following signature and seals:

________________________________________ (SEAL)
TRANSFEROR

COMMONWEALTH OF VIRGINIA

CITY/COUNTY OF ____________________, to wit:

The foregoing instrument was acknowledged before me in the City/County of ____________________, Virginia this __________ day of _______________, by TRANSFEROR.

________________________________________
Notary Public

My commission expires: ____________________

Registration number: ____________________

2013, c. 390.

§ 64.2-637. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

2013, c. 390.

§ 64.2-638. Relation to federal Electronic Signatures in Global and National Commerce Act.

This article modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that Act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that Act, 15 U.S.C. § 7003 (b).

2013, c. 390.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

The Virginia General Assembly is offering access to the Code of Virginia on the Internet as a service to the public. We are unable to assist users of this service with legal questions nor respond to requests for legal advice or the application of the law to specific facts. Therefore, to understand and protect your legal rights, you should consult an attorney.

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