Code of Virginia
Chapter 5 - Personal Representatives and Administration of Estates
§ 64.2-531. Nonexoneration; payment of lien if granted by agent

A. Unless a contrary intent is clearly set out in the will or in a transfer on death deed, (i) real or personal property that is the subject of a specific devise or bequest in the will or (ii) real property subject to a transfer on death deed passes, subject to any mortgage, pledge, security interest, or other lien existing at the date of death of the testator, without the right of exoneration. A general directive in the will to pay debts shall not be evidence of a contrary intent that the mortgage, pledge, security interest, or other lien be exonerated prior to passing to the legatee.
B. The personal representative may give written notice to the creditor holding any debt to which subsection A applies that there is no right of exoneration for such debt pursuant to this section. Such notice shall include a copy of this section. Any such notice shall be sent by certified mail (i) to the address the creditor last provided to the debtor as the address to which notices to the creditor are to be sent; (ii) if the personal representative cannot reasonably determine the address to which notices to the creditor are to be sent, to the address the creditor last provided to the debtor as the address at which payments to the creditor are to be made; or (iii) if the personal representative cannot reasonably determine either the address to which notices to the creditor are to be sent or at which payments to the creditor are to be made, to (a) the address of the creditor's registered agent on file with the Virginia State Corporation Commission or (b) if there is no such registered agent on file, to the creditor's last known address. The creditor holding such debt may file a claim for such debt with the commissioner of accounts pursuant to § 64.2-552 on or before the later of one year after the qualification of the personal representative of the decedent's estate or six months after the personal representative gives such written notice to the creditor. Once the personal representative has given notice to the creditor as provided in this section, unless the creditor files a timely claim against the estate as set forth in this subsection, the liability of a personal representative or his surety for such debt shall not exceed the assets of the decedent remaining in the possession of the personal representative and available for application to the debt pursuant to § 64.2-528 at the time the creditor presents a demand for payment of such debt to the personal representative. Nothing in this section shall affect either the liability of the estate for such debt to the extent of the decedent's assets remaining at the time a claim is filed or the liability of the beneficiaries that receive the decedent's assets to the extent of such receipt.
In the event that any such claim is timely filed with the commissioner of accounts, the personal representative shall give the specific beneficiary receiving such real or personal property written notice, within 90 days after such claim is filed, to obtain from the creditor the release of the estate from such claim. The notice to a beneficiary may be made to the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian or conservator of an incapacitated beneficiary, a committee of a convict or insane beneficiary, or the duly qualified guardian of a minor or, if none exists, a custodial parent of a minor. If the estate has not been released from such claim after the later of 180 days from such notice or one year from qualification, the personal representative may (a) sell the real or personal property that is the subject of a specific devise or bequest and that is also subject to the claim, (b) apply the proceeds of sale to the satisfaction of the claim, and (c) distribute any excess proceeds from such sale of the specific beneficiary of such property. If the proceeds of such sale are insufficient to satisfy the debt in full, the deficiency shall remain a debt of the estate to be satisfied from the other assets of the estate in accordance with applicable law. If such real property is subject to a transfer on death deed and is also subject to the claim, the personal representative may proceed as provided in § 64.2-634 to enforce the liability for such claim against such property.
C. Subsection A shall not apply to any mortgage, pledge, security interest, or other lien existing at the date of death of the testator against any specifically devised or bequeathed real or personal property, or any real property subject to a transfer on death deed, that was granted by an agent acting within the authority of a durable power of attorney for the testator while the testator was incapacitated. For the purposes of this section, (i) no adjudication of the testator's incapacity is necessary, (ii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator, and (iii) an incapacitated testator is one who is impaired by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause creating a lack of sufficient understanding or capacity to make or communicate responsible decisions. This subsection shall not apply (a) if the mortgage, pledge, security interest, or other lien granted by the agent on the specific property is thereafter ratified by the testator while he is not incapacitated or (b) if the durable power of attorney was limited to one or more specific purposes and was not general in nature.
D. Subsection A shall not apply to any mortgage, pledge, security interest, or other lien existing at the date of the death of the testator against any specific devise or bequest of any real or personal property, or any real property subject to a transfer on death deed, that was granted by a conservator, guardian, or committee of the testator. This subsection shall not apply if, after the mortgage, pledge, security interest, or other lien granted by the conservator, guardian, or committee, there is an adjudication that the testator's disability has ceased and the testator survives that adjudication by at least one year.
E. Nothing in this section shall affect the priority of a secured debt with respect to the collateral securing such debt.
2007, c. 341, § 64.1-157.1; 2012, cc. 476, 507, 614; 2013, c. 390; 2017, cc. 34, 139.

Structure Code of Virginia

Code of Virginia

Title 64.2 - Wills, Trusts, and Fiduciaries

Chapter 5 - Personal Representatives and Administration of Estates

§ 64.2-500. Grant of administration with the will annexed

§ 64.2-501. Oath of executor or administrator with the will annexed

§ 64.2-502. Grant of administration of intestate estate

§ 64.2-503. Oath and bond of administrator of intestate estate

§ 64.2-504. Bond of executor or administrator

§ 64.2-505. When security not required

§ 64.2-506. When letters of administration and order for obtaining probate in due form are required

§ 64.2-507. Clerks to deliver statement of responsibilities

§ 64.2-508. Written notice of probate, qualification, and entitlement to copies of inventories, accounts, and reports to be provided to certain parties

§ 64.2-509. List of heirs

§ 64.2-510. Affidavit relating to real estate of intestate decedent

§ 64.2-511. Powers of executor before qualification

§ 64.2-512. Funeral expenses

§ 64.2-513. Effect of death, resignation, or removal of sole executor

§ 64.2-514. Duty of every personal representative

§ 64.2-515. Duty of fiduciaries as to joint accounts

§ 64.2-516. Duties of fiduciaries as to certain obligations of the United States

§ 64.2-517. Exercise of discretionary powers by surviving executors or administrators with the will annexed

§ 64.2-518. When personal representative may renew obligation of decedent

§ 64.2-519. Suits upon judgment and contracts of decedent and actions for personal injury or wrongful death

§ 64.2-520. Action for goods carried away, or for waste, destruction of, or damage to estate of decedent

§ 64.2-520.1. Action for damages from legal malpractice concerning estate planning

§ 64.2-520.2. Reliance on certificate of qualification of a personal representative

§ 64.2-521. Personal representatives to sell real estate devised to be sold, and to receive certain rents

§ 64.2-522. Personal representatives to pay over sale proceeds and rents to persons entitled

§ 64.2-523. Personal representative may execute deed pursuant to written contract of decedent

§ 64.2-524. Validation of certain conveyances by foreign executor

§ 64.2-525. Debtor's appointment as executor

§ 64.2-526. What personal estate to be sold; use of proceeds

§ 64.2-527. Estate held for another's life; inclusion in personal estate

§ 64.2-528. Order in which debts and demands of decedents to be paid

§ 64.2-529. Creditors to be paid in order of their classification; class paid ratably; when representative not liable for paying debt

§ 64.2-530. Lien acquired during lifetime of decedent not affected

§ 64.2-531. Nonexoneration; payment of lien if granted by agent

§ 64.2-532. Real estate of decedent as assets for payment of debts

§ 64.2-533. Administration of assets for payment of debts

§ 64.2-534. Liability of heir or devisee for value of real estate sold and conveyed; validity of premature conveyances

§ 64.2-535. When sale and conveyance within one year valid against creditors; proceeds paid to special commissioner; bond to obtain proceeds

§ 64.2-536. Liability of heir or devisee; action by personal representative or creditor; recording notice of lis pendens; evidence

§ 64.2-537. Action to enforce claim of less than $100; notice

§ 64.2-538. Lien acquired during lifetime of decedent not affected

§ 64.2-539. Definitions

§ 64.2-540. Apportionment required

§ 64.2-541. Recovery by executor when part of estate not in his possession

§ 64.2-542. Transfers not required until tax ascertained or security given

§ 64.2-543. Contrary provisions of will or other instrument to govern

§ 64.2-544. Construction of direction to pay all taxes imposed on account of testator's death

§ 64.2-545. Transfer of assets to administrator de bonis non; administration of assets

§ 64.2-546. Action against representative of executor for waste

§ 64.2-547. Revival of judgment by administrator de bonis non

§ 64.2-548. Action against surety of personal representative; procedure

§ 64.2-549. Liability of personal representative or his surety

§ 64.2-550. Proceedings for receiving proof of debts by commissioners of accounts

§ 64.2-551. Account of debts by commissioners of accounts

§ 64.2-552. How claims filed before commissioners of accounts; tolling of limitations period

§ 64.2-553. When court to order payment of debts

§ 64.2-554. When distribution may be required; refunding bond

§ 64.2-555. When fiduciaries are protected by refunding bonds

§ 64.2-556. Order to creditors to show cause against distribution of estate to legatees or distributees; liability of legatees or distributees to refund

§ 64.2-557. Form for notice to show cause under § 64.2-556

§ 64.2-558. Distribution to persons standing in loco parentis to certain beneficiaries