Ancillary Probate in Virginia
What happens when a resident of another state dies owning Virginia real estate?
When a person dies owning real estate in more than one state, ancillary probate may be necessary to transfer some of the real estate.
Let’s say Henry passes away. At the time of his death, Henry was a resident of a state other than Virginia. Let’s call that other state “Home State.” Henry’s wife, Wendy, probated Henry’s will and qualified as the executor of Henry’s estate in Home State. At the time of his death, Henry owned a piece of real estate in Virginia. That real estate was Henry’s only Virginia asset. Wendy wants to be able to sell the Virginia real estate. What does she need to do?
Wendy needs to probate Henry’s will in Virginia. She needs to obtain an authenticated copy of the will probated in Home State and a certificate of probate from the relevant court in Home State. She may also need her certificate of qualification from the same court and possibly other documentation or information. Let’s say Wendy obtains the necessary documents from the appropriate court in Home State. She (or her lawyer) makes an appointment with the clerk of the appropriate Virginia circuit court to probate the will in that court. If the will meets Virginia’s execution requirements or is self-proving under the laws of Home State, the will is effective as to Henry’s Virginia real estate. Note: The probate of the will in Virginia (or any state other than Home State) is called “ancillary probate.” The probate in Home State is sometimes called “domiciliary probate.”
The effect of the probate of the will in Virginia is generally (but not always) to vest title to the real estate in the beneficiaries under the will. The Virginia case Broaddus v. Broaddus, 144 Va. 727 (1925) is the basis for that rule. Once title is vested in them, the beneficiaries can sell the real estate, if they wish to do so. Let’s assume that under Henry’s will, all of Henry’s property passes to Wendy. Assuming Henry’s will is effective to vest title to his Virginia real estate in the beneficiaries of his will, Wendy, in her capacity as the sole beneficiary under the will, would be able to sell the real estate upon the admission of the will to probate in Virginia.
Alternatively, a foreign executor can, under certain circumstances, convey the Virginia real estate without qualifying in Virginia. Once the will is probated in the Virginia circuit court for the property’s jurisdiction, the foreign executor will be able to sell the real estate if the following requirements are met: (i) the executor qualified under the laws of the state where the will was probated, (ii) the will is valid and executed according to Virginia law, (iii) the will gives the executor the power to convey the real estate. So, assuming Henry’s will and Wendy met the foregoing requirements, Wendy could sell the Virginia real estate in her capacity as the executor of Henry’s estate. This rule, which is perhaps unusual, is in Section 64.2-524 of the Virginia Code. In many other states, Wendy would be required to qualify as an ancillary administrator before she would be able to sell the real estate. (Note: While qualification as an ancillary administrator may not be required, it is possible and may be advisable under certain circumstances. A qualified lawyer can advise.)
Although Wendy does not have to qualify as a personal representative in Virginia, she does have to comply with certain Virginia probate requirements. At the time of probating Henry’s will, Wendy will need to pay certain fees to the clerk and the applicable probate tax. Once Wendy probates Henry’s will in Virginia, she needs to send Notices of Probate to the appropriate people and file an Affidavit of Notice. Whether Wendy sells the Virginia real estate as the beneficiary or the foreign executor, she does not have to file inventories or accounts in Virginia.