Fiduciaries of testamentary trusts must qualify before one of the circuit courts in Virginia. One should qualify in the circuit court in which the decedent’s will establishing the testamentary trust is probated. The Court may also require trustees of certain trusts that the Court establishes to qualify as well.
The named trustee, if living, must qualify or must formally renounce qualification. If the will does not name a substitute trustee, the Circuit Court will be required to appoint a trustee for the trust.1
In the Circuit Court of Fairfax County, the 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.
The prospective fiduciary should determine whether the original will has been probated with the Circuit Court prior to the appointment. At the appointment, the prospective fiduciary will need an estimate of the value of the trust assets, regardless whether the trust has received its initial funding. The prospective fiduciary may qualify prior to such funding, but should advise the clerk that the trust is not funded and that there has been no determination of the amount of its initial funding.
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. A resident agent should forward all legal papers and other correspondence regarding the estate to the fiduciary. A nonresident fiduciary may also wish to have a resident of Virginia qualify with him to avoid requirement for a surety bond.2 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 fiduciary should be prepared to pay at the appointment. The 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 trust, therefore, the trustee 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.
- Va.Code Ann. § 64.2-1405.
- Va. Code Ann. §§ 64.2-1419; 64.2-1426 to 64.2-1432; 64.2-426 to 64.2-427.