Testate Estates

Definition

A person dies testate if they left a will. The will controls the assets, and its listed beneficiaries will be the ones who receive the decedent’s property. All testate estates are addressed by appointment so that the probate department has adequate time to examine the will. 

Only original wills may be accepted by the probate department. If you do not have an original will, please see Intestate Estates.

Qualification

What is it? 

Qualification is when a person comes before the Clerk to formally request the powers of a personal representative for an estate. When there is a will, this title is often “executor.” Those qualifying will take an oath and post a bond before being granted their letters of qualification. Bond surety may be waived by the will.

When is it necessary? 

Qualification is necessary if the total value of the personal estate exceeds $75,000 or if one person needs the power to sell real estate being passed to multiple individuals. Qualification may be necessary if there are business transactions such as loans or taxes involved, or when the beneficiaries cannot work together.

What can be done without qualification?

The transfer of real estate using a will can take place without the need for formal qualification. Additionally, if the beneficiaries can work together, the transfer of motor vehicles can be completed without a formal qualification.

If the personal estate (not including real estate) is less than $75,000, all beneficiaries can work together, and at least 60 days have elapsed since the decedent’s passing, a Virginia Small Estate Act Affidavit (PDF) can be used pursuant to § 64.2-600 and § 64.2-601.

Estates with Real Estate Only

The will of a testate estate acts as the tool to transfer the real estate of a decedent, whether that is changing ownership or simply removing the decedent’s name from a life estate/right of survivorship property. 

In cases where real estate is the only asset and the will does not require it to be sold, the will may be probated without a formal qualification of the executor.

Small Estate Qualification

If qualification is necessary and the total value of assets to be administered – including real estate in the decedent’s name alone – is less than $35,000, the estate is considered small asset. Small asset estates can have their bond surety waived by the will or by Code of Virginia § 64.2-1411. They may or may not have to report to the Commissioner of Accounts.

Large Estate Qualification

If qualification is necessary and the total value of assets to be administered – including real estate in the decedent’s name alone – is greater than $35,000.00, the executor is considered to be overseeing a large estate. Large estates can only have their bond surety waived by a will or Code of Virginia § 64.2-505. They will have to report to the Commissioner of Accounts and file the required inventory and accounting paperwork.