Statutory allowances are filed directly with the clerk of the court and the commissioner of accounts has no jurisdiction over such filing. Those needing assistance are strongly encouraged to seek legal counsel.
The following general information is provided as a courtesy:
The Code of Virginia establishes specific allowances for family, exempt property and homestead allowances, which have priority over all claims other than administrative expenses. See §§64.2-309 to 64.2-311.
In order to receive a statutory allowance, the claimant must file a written election to take the allowance, acknowledged before a notary public, with the clerk of the court on or before one year from the decedent’s date of death.
The Virginia Code permits a family allowance for the surviving spouse and minor children (or minor children if no spouse survives) of up to the amount of $24,000 (or monthly installments of $2,000 for up to one year). The actual amount of the family allowance may be determined by the fiduciary, not to exceed $24,000. If a claimant objects to the fiduciary’s determination, the sole recourse is to petition the circuit court for appropriate relief.
The exempt property allowance entitles the surviving spouse (or minor children if no spouse survives) to a value not exceeding $20,000, in excess of any security interest therein, in the tangible personal property of the estate. If there is not sufficient personal property to make up the $20,000, the spouse or minor children may receive other assets of the estate up to the maximum allowance amount.
The surviving spouse (or minor children if no spouse survives) is entitled to a homestead allowance of $20,000; however, the Virginia Code states that by taking the homestead allowance, the spouse or minor children will no longer be permitted to share in the estate as an intestate heir or beneficiary under the decedent’s will.
Finally, Virginia also permits the surviving spouse of a decedent to claim an elective share in the decedent’s estate within six months of the later of the probate of the will or qualification of an administrator. The commissioner of accounts has no jurisdiction over determination of an elective share; the sole recourse is to petition the circuit court for appropriate relief.