Qualification

The circuit court or its clerk may appoint the guardian of an unemancipated minor. Virginia Code § 64.2-1702. Generally, the circuit court in which the minor resides is that appropriate court to make such appointment. Virginia Code § 64.2-1702. A minor fourteen or older may nominate his guardian. In Fairfax, the Clerk’s office requires that all minors aged 14 or older nominate their guardian. The minor may execute the nomination form before a notary public prior to the appointment or the minor may accompany the prospective guardian to the appointment with the Probate Division of the Clerk’s Office. Upon appointment, the guardian must qualify in the circuit court clerk’s office. If the clerk makes the appointment, the appointment and qualification are usually simultaneous.1

In the Circuit Court of Fairfax County, the prospective fiduciary should make an appointment with the Probate Division of the Clerk’s Office to qualify. The Probate Division is located in the Fairfax Judicial Center at 4110 Chain Bridge Road, Suite 401, Fairfax, Virginia 22030 and may be reached at (703) 246-4153. At the probate appointment, the fiduciary will need to have an estimate of the value of the minor’s assets, and the minor’s right to periodic payments from any source.

If the prospective fiduciary is not a resident of Virginia, he should arrange for a Virginia resident to accompany him to the appointment. A nonresident fiduciary must appoint a resident agent to be served with legal papers on his behalf.2 A resident agent should forward all legal papers and other correspondence regarding the estate to the fiduciary. Please note that a Virginia resident who qualifies with the nonresident fiduciary is equally liable for administration of the estate. If the duties are not faithfully carried out, each fiduciary will be subject to enforcement proceedings.

There are charges which the prospective fiduciary should be prepared to pay at the appointment. The prospective fiduciary must generally advance these costs from his funds. The Clerk’s office accepts MasterCard and Visa with a 4% processing fee for each credit card transaction. Clerk’s fees are a proper expense of the guardianship, therefore, the guardian may be reimbursed for such costs.

If all is in order, the clerk will administer the oath of office to the fiduciary, establish the amount of the fiduciary’s bond (and whether any surety is required) and will issue certificates of qualification to the fiduciary. Prospective fiduciaries are encouraged to seek approval of the requisite fiduciary bond from a bonding company in advance of the appointment with the Probate Division of the Clerk’s Office as such bonds are more difficult to obtain than other fiduciary bonds.

1. See generally Va. Code Ann. § 64.2-1702.
2. Va. Code Ann. §64.2-1419; 64.2-1426 to 1432; 64.2-426 to 427.