The Commonwealth of Virginia continues to be a state that people are moving to for employment, quality of life, and retirement purposes. With such a steady influx of people to Virginia, it is likely that some of these people will have family members or friends remaining behind in the transplant’s state of origin. As such, many people will want or need a family member or friend who is not a Virginia resident to act as their executor (Personal Representative – if using the generic term) to act for them in their Last Will and Testament. Does Virginia allow such an out-of-state person to act as an executor? The simple answer is “yes.” §64.2-1426 of the Code of Virginia provides that A natural person who is not a resident of the Commonwealth of may be appointed or allowed to qualify or act as a personal representative. However, there are hoops that must be jumped through and requirements that must be satisfied.
First, a nonresident must, at the time of qualification, appoint either the clerk of the circuit court of the jurisdiction where the nonresident is being qualified, or some other resident of the Commonwealth to act as Agent to receive of service of process regarding estate matters on behalf of the non-resident. If the nonresident is represented by an attorney for the purposes of the estate administration, said attorney will often serve in this capacity to receive service of process on behalf of the estate. This is required so that if someone has a claim or action against the estate, the court has a simple and efficient manner to receive and prove the service of process against the estate in the matter.
In my experience, the next requirement has been a conflict point on more than one occasion. Most well-drafted Last Wills and Testaments contain a provision waiving surety on the bond of an executor. However, the Commonwealth of Virgina absolutely requires that any nonresident serving as an executor post bond with surety. In the minds of many nonresidents attempting qualification as executors, the waiver of bond and surety in the Last Will and Testament should override the Commonwealth’s requirement. However, I assure you it does not. Every nonresident who qualifies as executor must unequivocally post bond with surety at the time of qualification. This requirement may not be waived or overridden by any provision in the Last Will and Testament to the contrary. The only way to negate this requirement is to have the nonresident executor joined by a resident executor to function as co-executors for the administration of the estate.
So, in conclusion, you can have a nonresident act as an executor in Virginia; however, depending on your circumstances and available alternative options, you may be better served by using a resident executor if you wish to avoid these extra steps required of nonresidents to quality as executor.
If you have questions or concerns about your estate plan and would like to schedule a consultation with a JGB attorney, please contact our office.