TN 18 (12-15)
GN 02315.085 Virginia Small Estates
A. Policy for Virginia small estates
1. Definitions used in Virginia small estates
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:
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:
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;
Children and their descendants;
Parents, or the surviving parent;
Brothers and sisters and their descendants;
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;
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.
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 $25,000 or less
This applies only to a small asset valued at $25,000 or less.
2. Payment or delivery of the small asset to successor
A person having possession of a small asset valued at $25,000 or less may, pursuant to VA Code § 64.2-602, pay or deliver the small asset to any successor provided that at least 60 days have elapsed since the decedent’s death and no application for the appointment of a personal representative is pending or has been granted by any jurisdiction. See VA Code § 64.2-602.
D. Release of liability in Virginia
A person paying or delivering a small asset in accordance with GN 02315.085B or GN 02315.085C (in this section) is discharged and released to the same extent as if the person dealt with the personal representative of the decedent. The person is not required to see the application of the small asset or inquire into the truth of any statement in any affidavit. See VA Code § 64.2-603.
E. Payments to an undertaker or mortuary in Virginia
At the request of a successor, a person holding a small asset belonging to the decedent may pay or deliver up to $4,000 of the small asset to the undertaker or mortuary handling the funeral of the decedent provided that 30 days have elapsed since the decedent’s death and no application for the appointment of a personal representative is pending or has been granted by any jurisdiction. Receipt of the payee is a full and final release of the payor as to such sum. See VA Code § 64.2-604.
F. Policy for title II underpayment in Virginia
“Pension” as used in the statute includes title II benefits. Therefore, SSA can pay an underpayment under this statute where all the requirements are met. There is no need to contact the Probate Court in order to obtain good acquittance under this statute.