How Do I Collect Estate Property with an Affidavit in Virgina?
Full Question:
Answer:
If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The amount is $50,000 in Virginia to collect property by affidavit. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.
An intestate estate is any part of the estate of a decedent not effectively disposed of by his will, which passes to his heirs as prescribed in the applicable state's laws of intestate succession. The estate of a decedent who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property. Under the intestate laws of succession, the spouse and heirs will receive property by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Each state has an intestacy law which specifies who is to inherit property in the absence of a will. If a person dies without a will, the probate court will appoint a personal representative (or administrator) for his or her estate to receive creditors' claims against the estate, pay debts, and distribute the deceased person’s remaining property according to state laws. Certain assets are not included as part of a person's estate and may pass outside of probate, such as trust assets and transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies.
Certain assets, such as trusts, transfer on death accounts, and joint assets with a right of survivorship aren't included as part of the probate estate and pass directly to the beneficiary on death. For example, a life insurance policy may name a beneficiary, and transfer on death, avoiding probate. A home owned as joint tenants with a right of survivorship will also pass directly to the surviving owner and is not part of the probate estate.
Please see the following VA statutes:
§ 64.1-132.2. Collection of personal property by affidavit. —
A. Sixty days after the death of a decedent, any person indebted to the
decedent or having possession of tangible personal property or an
instrument evidencing a debt, obligation, stock or chose in action
belonging to the decedent may make payment of the indebtedness or deliver
the tangible personal property or an instrument evidencing a debt,
obligation, stock or chose in action to a person claiming to be the
successor of the decedent upon being presented an affidavit made by or on
behalf of the successor stating that:
1. The value of the entire personal probate estate, wherever located,
does not exceed $50,000;
2. At least 60 days have elapsed since the death of the decedent;
3. No application for the appointment of a personal representative is
pending or has been granted in any jurisdiction;
4. The will, if any, was duly probated and the list of heirs required
by § 64.1-134 was duly filed; and
5. The claiming successor is entitled to payment or delivery of the
property, and the basis upon which such entitlement is claimed.
B. A transfer agent of any security shall change the registered
ownership on the books of a corporation from the decedent to the
successor upon the presentation of an affidavit as provided in
subsection A.
§ 64.1-132.3. Effect of affidavit. —
The person paying, delivering, transferring, or issuing personal
property or the evidence thereof pursuant to the affidavit is discharged
and released to the same extent as if he dealt with a personal
representative of the decedent. He is not required to see to the
application of the personal property or evidence thereof or to inquire
into the truth of any statement in the affidavit. If any person to whom
an affidavit is delivered refuses to pay, deliver, transfer, or issue any
personal property or evidence thereof, it may be recovered, or its
payment, delivery, transfer, or issuance compelled upon proof of rightful
claim in a proceeding brought for the purpose by or on behalf of the
person entitled thereto. Any person to whom payment, delivery, transfer or
issuance has been made is answerable and accountable therefor to any
personal representative of the estate or to any other person having a
superior right.