Who is the Default Decision Maker Concerning Estate in Virginia’s Statutes? (And How an Estate Attorney Avoids Danger of the State’s Rules Applying)

Many people have trouble thinking about what will happen after they pass. It’s sort of a human reflex: we don’t want to go, so we pretend we just won’t. Whole books of philosophy and psychology have been written about this phenomenon. Estate attorneys live our lives ushering people through that strange twilight zone of thought about the world once we’re gone—and what people can do to shape it in whatever ways we can. The fact is, if you don’t make choices about the things that happen soon after you die, the state of Virginia will make them for you (in a way, it already has). Some people are just fine with that. But what if you don’t like who the state would give the power to dispose of your possessions—but just don’t know it yet because you haven’t thought about it? Well, let me usher you into pondering that right now.

If you’ve been conscientious and made a will, the task of being the decision maker where it comes to handling your estate after you die is placed into the hands of your executor, who must qualify to do so in the court system. This executor becomes responsible for the disposition of every element of a deceased person’s estate—such as putting a will into the probate system, paying the deceased person’s creditors out of their estate and otherwise settling debts and claims made against the estate, filing tax returns on behalf of the estate, and so on.

But what if you have not made a will, or the executor you’ve named within your will dies before they can administer their duties?

Virginia law establishes who can serve as executor and in what priority if you do not have a will, or if you have not explicitly named an executor or a reasonable number of alternates, or if for whatever reason your named executor is unable or unqualified to fulfill the duty. Virginia law leaves this appointment to the Circuit Court where the deceased person lived. In the first 30 days following that person’s death, the Court may grant executorship to the person entitled to inherit the estate, where there is only one inheritor. If there are more than one legal inheritor, one of them can gain the power to administer the estate by gaining a signature of waiver from each of the other inheritors. In the case where there are more than one legal inheritor and 30 days have passed before someone comes forward to claim the estate, the Court can appoint whichever of the legitimate inheritors first appears. If 45 days pass before anyone qualifies as an executor, then a creditor or other person may be appointed. That’s right—if you don’t leave a plan behind, the Court may leave the care for your estate in the hands of one of your creditors. Those are the people who want as much of what’s in your estate as they can get.

Does that seem like it might be a problem?

The solution, then, is one of planning: make a plan, make sure it will be enacted. That’s where we come in. A solid estate plan includes a will that describes your decisions on who should be your executor. You—and your beneficiaries—can rest easy knowing that the right person will be in charge of distributing your estate.

Our Estate Planning Attorneys Can Help

Attend one of Promise Law’s free estate planning workshops to learn how this all works. These workshops provide a great foundation of information that everyone needs to make sound planning decisions. Promise Law’s approach is to give you the information you need to make the proper decision for your situation. Moreover, if you attend a workshop, you also get a complimentary consultation.


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