TN 18 (12-15)

GN 02315.085 Virginia Small Estates

A. Policy for Virginia small estates

1. Definitions used in Virginia small estates

a. Successor

Any person, other than a creditor, who is entitled under the decedent’s will or the laws of intestacy, to all or part of a small asset. See VA Code 64.2-600.

b. Small asset

Any indebtedness owed to or any asset belonging or presently distributable to the decedent, other than real property, having a value of no more than $50,000 on the date of the decedent’s death. A small asset includes any:

  • bank account,

  • savings institution,

  • account,

  • credit union account,

  • brokerage account,

  • security,

  • deposit,

  • tax refund,

  • overpayment,

  • item of tangible,

  • personal property, or

  • an instrument evidencing a debt, obligation, stock, or chose in action.

See VA Code 64.2-600.

2. Virginia basic statute

You can find the Virginia Small Estate Act in sections 64.2-600 through 64.2-605 of its civil code (effective October 1, 2012).

Distributees in order of priority under the Virginia small estate statutes are:

  1. Surviving spouse, unless the intestate is survived by children or their descendants, one or more of whom are not the children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate’s children and their descendants and the remaining one-third of the estate goes to the surviving spouse;

  2. Children and their descendants;

  3. Parents, or the surviving parent;

  4. Brothers and sisters and their descendants;

  5. One-half to the paternal kindred and one-half to the maternal kindred in the following order:

    • Grandparents, or the surviving grandparent;

    • Uncles and aunts and their descendants;

    • Great grandparents;

    • Brothers and sisters of grandparents and their descendants;

    • and so on in other cases without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.

  6. If there are either no surviving paternal kindred or no surviving maternal kindred, the whole estate descends and passes to the paternal or maternal kindred who survive the decedent. If there are neither maternal nor paternal kindred, the whole estate descends and passes to the kindred of the decedent's most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse's death, as if such spouse had died intestate and entitled to the estate. See VA Code §§ 64.2-200, 64.2-201.

B. Policy for collecting a small asset by affidavit in Virginia

1. Small asset valued under $50,000

Any person having possession of a small asset valued under $50,000 must pay or deliver the asset to the designated successor of the decedent upon presentation of an affidavit made by all of the known successors. See VA Code § 64.2-601.

2. Required affidavit statement

The affidavit must state the following:

  • Value of the entire personal probate estate, as of the date of the decedent’s death, does not exceed $50,000;

  • At least 60 days have elapsed since the decedent’s death;

  • No application for the appointment of a personal representative is pending or has been granted in any jurisdiction;

  • Decedent’s will, if any, was duly probated;

  • Claiming successor is entitled to payment or delivery of the small asset, and the basis upon which such entitlement is claimed;

  • Names and addresses of all known successors;

  • Name of each successor designated to receive payment or delivery of the small asset on behalf of all successors; and

  • Designated successor shall have the fiduciary duty to safeguard and promptly pay or deliver the small asset as required by Virginia law. See VA Code § 64.2-601.

3. Actions of designated successor when presented with an affidavit

Upon the presentation of an affidavit, the designated successor may endorse or negotiate any small asset that is a check, draft, or other negotiable instrument that is payable to the decedent or the decedent’s estate. See VA Code § 64.2-601(E).

C. Policy for collection of a small asset without an affidavit in Virginia

1. Small assets valued at