Executors Living Outside Virginia or Abroad: Consent to Service, Surety Bond and Co-Executors

Part I. Who may serve in Virginia

The executor is the person named in a will admitted to probate. Where there is no will, or no named executor qualifies, the circuit court or its clerk grants administration. In an intestate estate a sole distributee, or a distributee who presents waivers from all other competent distributees, may qualify within the first 30 days after the death; after 30 days the first distributee who applies may qualify, subject to a hearing where several distributees have given notice of an intent to qualify (Va. Code § 64.2-502(A)(1) and (2)). After 60 days a creditor or another person may apply on the conditions of § 64.2-502(A)(4), and the court may depart from the statutory order where the interests of the estate require it (Va. Code § 64.2-502(B)).

An administrator must satisfy the court or clerk that he or she is suitable and competent, and signs under oath that no legal disability and no disqualifying felony conviction applies (Va. Code § 64.2-502(D)).

Part II. A nonresident may qualify

Section 64.2-1426(A) of the Code of Virginia allows a natural person who is not a resident of the Commonwealth to qualify as personal representative or as trustee under a will. The section draws no distinction between a resident of another state and a resident of another country, and it imposes no citizenship requirement. An heir abroad who holds only a foreign passport may therefore serve in Virginia, which is not the case in Maryland or in the District of Columbia.

A corporation may serve as personal representative or as trustee under a will only if it is authorized to do business in Virginia (Va. Code § 64.2-1426(B)). A foreign bank or trust company named in a will cannot qualify without that authorization.

Part III. The consent to service of process

At qualification the nonresident files with the clerk of the circuit court a written consent that process in any action against him or her as personal representative, and any notice concerning the administration in Virginia, may be served on the clerk or on a Virginia resident at the address named in the instrument. If that agent dies, is removed, resigns, leaves Virginia or cannot be found with due diligence, process and notices may be served on the clerk (Va. Code § 64.2-1426(A)).

Service on the clerk or the agent is service on the personal representative. An executor who lives abroad therefore arranges for anything served in Virginia to be forwarded at once, since the time to respond runs from service and not from the date the papers reach the executor’s home.

Part IV. The bond with surety

Virginia requires a personal representative to furnish security, but excuses it where the will waives security for the executor it names or where all distributees or beneficiaries are personal representatives (Va. Code § 64.2-505(A)). For a nonresident these exceptions do not help. Section 64.2-1426(A) requires bond with surety "in every case" notwithstanding § 64.2-505, unless a resident personal representative qualifies at the same time or the court or clerk waives surety under § 64.2-1411.

The waiver under § 64.2-1411 is available only where there are no assets or the assets coming into the fiduciary’s possession do not exceed USD 35,000 (Va. Code § 64.2-1411(A)). In any larger estate a nonresident who serves without a resident co-fiduciary must find a surety. Surety companies underwrite the applicant, and an applicant who lives abroad and has no US credit history or US assets may find a bond difficult to obtain. A Virginia resident named as co-executor in the will removes the statutory surety requirement.

Part V. The duties from abroad

The appointment carries the same duties for a nonresident as for a resident. Within four months after the order conferring authority, the personal representative returns to the commissioner of accounts an inventory of the personal estate, the decedent’s interest in any multiple-party account and the real estate of the decedent, whether or not situated in Virginia, each item at its market value at the date of death (Va. Code § 64.2-1300(A) and (D)). Assets discovered later are added within four months of their discovery (Va. Code § 64.2-1300(E)).

Where the executor lives makes no difference to the federal duties. The executor files the decedent’s final income tax return, the estate’s income tax returns and, where required, the estate tax return, and an executor who pays other debts of an insolvent estate before a federal tax claim is personally liable to the extent of the payment (31 U.S.C. § 3713(b)). Income the estate carries out to an heir who is not a US person is subject to withholding. The Fiduciary Services page sets out these duties.

How the firm helps

The firm’s attorneys are licensed in Washington DC, Maryland, Virginia and California and administer estates in all four, or act as counsel to a family member who serves as personal representative. For a personal representative who lives outside Virginia or abroad, the firm prepares the petition and the filings the court requires of a nonresident, advises on a resident co-executor or the surety bond, prepares the inventory and accounts for the commissioner of accounts, and conducts the administration through the final account.

Where no relative is available to serve, the firm may act as personal representative. The estate’s federal and state tax returns, the withholding on distributions to heirs abroad and the correspondence with the heirs’ advisers in their own countries, in English, German or French, are handled in the same engagement. The situation page An estate in Washington DC, Maryland, Virginia or California has heirs abroad describes that engagement.