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Do You Have To Name a Virginia Resident as the Executor of Your Will?

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By Sarah Schmidt, Esq.

A common question we receive from clients is whether he or she must name a Virginia resident to serve as an executor of his or her will.  While the Virginia Code used to prohibit the qualification of nonresident fiduciaries, the General Assembly has revised the statute as to who may qualify over the years. In 1997, the prohibition against nonresident fiduciaries was effectively removed. This means not only can a nonresident of Virginia qualify as an executor, he or she may also qualify as a trustee, guardian, or conservator, as the statute applies to all types of fiduciaries.

Although the law changed over twenty years ago, the rumor or belief that you should name a resident of Virginia persists. This is in part due to differing opinions of attorneys, because the statute requires a little bit more from a nonresident. A nonresident fiduciary must (i) appoint a Virginia resident or the Clerk of Court to receive service of process on his or her behalf, and (ii) post a surety bond if (a) the estate exceeds the value of $25,000 and surety is therefore waived, or (b) a resident is not also appointed to serve simultaneously. See Va. Code § 64.2-1426. In most cases, in my experience, these two “requirements” are only small hurdles and should not be seen as obstacles.

First, appointing a Virginia resident to receive service of process is particularly easy if your executor or trustee hires the Hook Law Center, because the firm will regularly serve as a resident agent for our clients. But even if your executor or trustee does not hire Hook Law Center, he or she may appoint the clerk of the circuit court. The purpose of this requirement is to ensure that if the fiduciary is ever sued, the papers to be served may be served upon the resident agent who will then obtain a copy of the legal process for the fiduciary. The Virginia General Assembly wants to make sure that if you are agreeing to be appointed in the Commonwealth, you can also be held accountable in a lawsuit filed in the Commonwealth. This is one reason why appointing your own resident agent is preferable to appointing the clerk of the court, so that you have some assurance as to the timely receipt of such papers.

Second, posting a surety bond for an estate which exceeds the value of $25,000 should also not be seen as an entirely negative thing. Although a surety bond comes at some cost for the premium, it protects the beneficiaries of the estate and is a relatively inexpensive cost to be able to appoint the person whom you trust. To get around the surety requirement, some attorneys will recommend also appointing a resident executor to serve simultaneously with the nonresident executor. You should speak thoroughly with an attorney as to the pros and cons before taking this approach. Often naming co-executors brings on a host of problems and issues that are far greater than the problem they were intended to avoid. Unless the two persons named as co-executors are also the two only beneficiaries under the will, I will often not recommend this approach. But every case is different, and you can only come to the correct answer by discussing this with your attorney in detail.

In summary, there are a host of factors that go into the choice of an executor. Often the most important factor in naming an executor is choosing someone you trust, but you should talk thoroughly with your estate planning attorney before making this decision. Do not choose your executor solely because he or she is a resident of Virginia.

Kit KatAsk Kit Kat – Endangered Pangolins

Hook Law Center: Kit Kat, what can you tell us about endangered pangolins who live in South Africa and Southeast Asia?

Kit Kat: Well, I must admit that I didn’t even know what pangolins were until very recently. The pangolin is a mammal, which looks somewhat like an anteater, except that its scales resemble that of a pine cone. They are also similar in color to a pine cone. When threatened by animal or human, they curl up in a ball. Animals then tend to leave them alone, but poachers have an easy task to just pick them up and abscond with them. Though China forbids the sale of the mammals’ meat, it is the largest consumer of pangolin scales. They are used in making medicines, though there is little verification that the medicines derived from their scales really have any significant medical impact. It’s just tradition. 1 million pangolins have been killed worldwide since 2000.

As of this moment, all 8 species of pangolins are endangered. Humane Society International (HSI) is working with organizations like African Pangolin Working Group and the Johannesburg Wildlife Veterinary Hospital to increase awareness of the problem and treat those pangolins who are rescued from poachers. This year 14 pangolins have been rescued. There are also experimental efforts being undertaken to track the pangolins’ whereabouts in the wild using satellite tags or telemetry tracking units, depending on the funding source. “The monitoring will ensure the highest chance of survival post-release and significantly contribute to the scientific knowledge pool of these elusive creatures,” says Audrey Delsink, executive director of HIS Africa. (Michael Sharp, “Keeping watch over pangolins,” All Animals, September/October 2018, p. 8)

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Posted on Friday, October 12th, 2018. Filed under Senior Law News.
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