When a person dies and has an estate that needs administration, a person has to qualify before the clerk of the court before he/she can do that administering. Being named in the will is not enough. Qualification is the process that gives a person legal authority to act as the personal representative (or executor or administrator) of an estate.
There is no obligation to qualify. Even a person named as an executor or administator in a will can choose not to qualify.
It’s important to carefully consider a decision to qualify. Here are a few of the reasons to think twice:
Qualifying might not make financial sense.
Estates have expenses, people die with debts, and those debts and expenses might exceed the estate’s assets. If an estate can’t pay all its debts and expenses, the estate is insolvent. It rarely makes sense to qualify as the personal representative of an insolvent estate. Many people who do qualify on such estates end up spending personal funds they’ll never recover. Additionally, insolvent estates are difficult to administer, as they are subject to additional rules (more on those in another post).
It’s tough to quit.
After qualifying, a personal representative needs the court’s permission to resign.
Qualification might not be necessary.
Virginia has an informal procedure for the administration of small estates (less than $50,000 of probate assets, other than real estate) without qualification. Virginia real estate can pass to heirs or beneficiaries without qualification. So, where a person dies owning real estate and/or $50,000 or less in other probate assets, qualification might not be necessary.
Being an executor or administrator is a serious responsibility.
Personal representatives are “fiduciaries.” A fiduciary owes legal duties to the beneficiaries and creditors of the estate. A personal representative can be sued for breaching his/her duties.
Also, personal representatives have certain duties to report to their local commissioner of accounts. The commissioner of accounts is a quasi-judicial official tasked with overseeing certain fiduciary matters. A personal representative’s failure to report to the commissioner of accounts can also land the personal representative in court.
It’s the responsibility of a potential personal representative to investigate the circumstances and determine the best course of action for him/herself. No one, other than your lawyer, will attempt to stop you from qualifying when it’s imprudent to do so.