the order the payment challenge the Last Will and representative] within five years “against and delivery of the estate of the Testament probate. The statute afterward”. descendent to his legatees or provides that to be protected, the I also recommend that the distributees.” personal representative shall personal representative obtain a have contacted the surviving Va. Code Ann. §64.1-180 letter from the IRS and a letter spouse to ascertain that the provides a form of notice for from the Virginia Department of surviving spouse will not show cause. The order of show Taxation stating that the decedent renounce the will and such intent cause must be published once a and the estate of the decedent do shall be in writing. week for two successive weeks not owe any taxes. in one or more newspapers as the A contingent claim will not court may direct. prevent from distributing the estate. The court will set aside The court will then order the enough reserve for such a claim. distribution with or without a refunding bond. The statute Please note that this procedure requires a refunding bond if the protects the personal distribution is made before the representative against creditors expiration of a one-year period. but not against an improper Depending on the statute, distribution of the estate to beginning of the one-year period legatees or distributes. H. starts from: (1) the date of death Michael Deneka, Esq. in Winding (for the family allowance, Up and Settlement of an Estate exempt property and homestead addresses this and allowance, (2) the date of the recommends that in order to be filing of the Will (for a newly totally protected, the personal discovered Will and its representative should seek an challenge), or (3) the date of the action for aid and direction. appointment of the personal Actually, Va. Code Ann. representative (when no Will was provides that legatee “every probated). This one-year period or distributee in a suit …may, corresponds to the right to brought against [the personal
the order “against the payment and delivery of the estate of the descendent to his legatees or distributees.” Va. Code Ann. §64.1-180 provides a form of notice for show cause. The order of show cause must be published once a week for two successive weeks in one or more newspapers as the court may direct. The court will then order the distribution with or without a refunding bond. The statute requires a refunding bond if the distribution is made before the expiration of a one-year period. Depending on the statute, beginning of the one-year period starts from: (1) the date of death (for the family allowance, exempt property and homestead allowance, (2) the date of the filing of the Will (for a newly discovered Will and its challenge), or (3) the date of the appointment of the personal representative (when no Will was probated). This one-year period corresponds to the right to challenge the Last Will and Testament probate. The statute provides that to be protected, the personal representative shall have contacted the surviving spouse to ascertain that the surviving spouse will not renounce the will and such intent shall be in writing. A contingent claim will not prevent from distributing the estate. The court will set aside enough reserve for such a claim. Please note that this procedure protects the personal representative against creditors but not against an improper distribution of the estate to legatees or distributes. H. Michael Deneka, Esq. in Winding Up and Settlement of an Estate addresses this and recommends that in order to be totally protected, the personal representative should seek an action for aid and direction. Actually, Va. Code Ann. provides that “every legatee or distributee …may, in a suit brought against [the personal representative] within five years afterward”. I also recommend that the personal representative obtain a letter from the IRS and a letter from the Virginia Department of Taxation stating that the decedent and the estate of the decedent do not owe any taxes.
Creditors.docx