This article will cover various different issues: who can be appointed in a Virginia wrongful death case, where, the statute of limitations, the damages available, and related issues. Contact Shapiro, Washburn & Sharp to speak with one of our Virginia Beach wrongful death lawyers to find out about your specific situation.
The main applicable section is Virginia Code Section 64.2- 502. In situations where there was a will, the executor under that will is, for all intents and purposes, a personal representative. Our law firm fields more inquiries in situations where there is a sudden death, and the person who died, unfortunately, does not have a will. This is called intestacy, and we are asked who can represent the estate as a personal representative for purposes of a personal injury survival action and/ or for purposes of pursuing a Virginia wrongful death case. The code section below is the main applicable section setting forth when a person can be appointed.
A. The court or the clerk who would have jurisdiction as to the probate of a will, if there were a will, has jurisdiction to hear and determine the right of administration of the estate in the case of a person dying intestate. Administration shall be granted as follows:
1. During the first 30 days following the decedent’s death, the court or the clerk may grant administration to a sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.
2. After 30 days have passed since the decedent’s death, the court or the clerk may grant administration to the first distributee, or his designee, who applies, provided, that if, during the first 30 days following the decedent’s death, more than one distributee notifies the court or the clerk of an intent to qualify after the 30-day period has elapsed, the court or the clerk shall not grant administration to any distributee, or his designee, until the court or the clerk has given all such distributees an opportunity to be heard.
3. After 45 days have passed since the decedent’s death, the court or the clerk may grant administration to any nonprofit charitable organization that operated as a conservator or guardian for the decedent at the time of his death if such organization certifies that it has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of its intention to apply for administration at least 30 days before such application, or, that it has not been able to find any address for such distributee. However, if, during the first 45 days following the decedent’s death, any distributee notifies the court or the clerk of an intent to qualify after the 45-day period has elapsed, the court or the clerk shall not grant administration to any such organization until the court or the clerk has given all such distributees an opportunity to be heard. Qualification of such nonprofit charitable organization is not subject to challenge on account of the failure to make the certification required by this subdivision.
4. After 60 days have passed since the decedent’s death, the court or the clerk may grant administration to one or more of the creditors or to any other person, provided such creditor or person other than a distributee certifies that he has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of his intention to apply for administration at least 30 days before such application, or that he has not been able to find any address for such distributee. Qualification of a creditor or person other than a distributee is not subject to challenge on account of the failure to make the certification required by this subdivision.
B. When granting administration, if the court determines that it is in the best interests of a decedent’s estate, the court may depart from the provisions of this section at any time and grant administration to such person as the court deems appropriate.
C. The court or clerk may admit to probate a will of the decedent after a grant of administration. If administration has been granted to a creditor or person other than a distributee, the court or clerk may grant administration to a distributee who applies for administration and who has not previously been refused administration after reasonable notice has been given to such creditor or other person previously granted administration. Admission of a will to probate or the grant of administration pursuant to this subsection terminates any previous grant of administration.
D. The court or clerk shall not grant administration to any person unless satisfied that he is suitable and competent to perform the duties of his office. The clerk shall require such person to sign under oath that such person is not under a disability as defined in § 8.01-2 or, regardless of whether his civil rights have been restored, has not been convicted of a felony offense of (i) fraud or misrepresentation or (ii) robbery, extortion, burglary, larceny, embezzlement, fraudulent conversion, perjury, bribery, treason, or racketeering. However, if the person convicted of such felony offense is the sole distributee of the estate, then the court or clerk may grant administration to such person if he is otherwise suitable and competent to perform the duties of his office.
E. If any beneficiary of the estate objects, a spouse or parent who has been barred from all interest in the estate because of desertion or abandonment as provided under § 64.2-308 or 64.2-308.17, as applicable, may not serve as an administrator of the estate of the deceased spouse or child.
When they first talk to us, some of our clients get mixed up on the difference between a personal representative and a beneficiary or heir. A personal representative of an estate is simply the person representing the estate for purposes of a survival action or wrongful death action. That doesn’t mean the personal representative isn’t entitled to be a beneficiary under Virginia law, although many times, the personal representative is also a beneficiary. Further, the personal representative doesn’t get paid to be that personal representative, but again, many times, they are a beneficiary under the potential recovery for wrongful death. Their main role is to help one of our wrongful death attorneys answer discovery in the lawsuit and provide information about the decedent’s life and job, pension rights, and things like that. The heirs (beneficiaries) of a person who leaves no will behind is dictated by the provisions of the Virginia wrongful death statute, Virginia Code Section 8.01-50 which is set forth here:
A. The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased, and, only if there is a surviving spouse, children of the deceased, or children of any deceased child of the deceased, the parents of the decedent if any of such parents, within 12 months prior to the decedent’s death, regularly received support or regularly received services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care, or (ii) if there is no surviving spouse, children of the deceased, or children of any deceased child of the deceased, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.2-200. However, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.
B. The class and beneficiaries thereof eligible to receive such distribution shall be fixed (i) at the time the verdict is entered if the jury makes the specification or (ii) at the time the judgment is rendered if the court specifies the distribution.
C. A beneficiary may renounce his interest in any claim brought pursuant to § 8.01-50 and, in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or, if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A.
D. For the purposes of this section, children of the deceased shall include any child of the decedent who is adopted after the death of the decedent, provided that the parental rights of the decedent were not terminated by a court of competent jurisdiction prior to his death. The provisions of this subsection shall apply to any adoption finalized on or after July 1, 2024.
So, let’s go over the nomenclature again. The executor represents the estate when there is a will. The administrator represents the estate when there is no will. Broadly speaking, either of them can also be defined as a “personal representative.”
Either of those persons has the power in Virginia to be named as the personal representative for a personal injury survival case or a wrongful death action. Here is the pertinent Virginia code statute:
A personal representative may sue or be sued (i) upon any judgment for or against the decedent, (ii) upon any contract of or with the decedent, or (iii) in any action for personal injury or wrongful death against or on behalf of the estate.
A personal representative may sue or be sued (i) upon any judgment for or against the decedent, (ii) upon any contract of or with the decedent, or (iii) in any action for personal injury or wrongful death against or on behalf of the estate.
This provision means that the clerk doesn’t need to issue a special certificate to pursue a survival or wrongful death action to an administrator or an executor; the Virginia code already provides the power for either such person to be the personal representative for a wrongful death lawsuit.
However, many situations arise when a person is harmed by negligence and has either a personal injury survival action before they die or they have a potential wrongful death action when their death is caused by negligence. If no one was appointed the administrator for the person who died without a will, the Virginia code allows a person to be appointed solely to pursue the survival action or the wrongful death action, and a deputy clerk of a Circuit Court in Virginia is empowered to provide such a certificate to various persons, and the persons that can be appointed is set by statute at any time beginning 60 days after the death of the person who holds the potential action.
The interplay between a couple of these statutes means that an administrator of an estate can be appointed within 30 days of death if they meet the various definitions of who can be appointed. The statute below sets forth who can obtain a certificate to pursue a survival or wrongful death action when there has been no appointment to represent the estate, and the section below outlines, beginning 60 days after death, who can be appointed by the deputy clerk.
An administrator may be appointed in any case in which it is represented that either a civil action for personal injury or death by wrongful act, or both, arising within the Commonwealth is contemplated against or on behalf of the estate or the beneficiaries of the estate of a resident or nonresident of the Commonwealth who has died within or outside the Commonwealth if at least 60 days have elapsed since the decedent’s death and an executor or administrator of the estate has not been appointed under § 64.2-500 or 64.2-502, solely for the purpose of prosecution or defense of any such actions, by the clerk of a circuit court. An administrator appointed pursuant to this section may prosecute actions for both personal injury and death by wrongful act.
If a fiduciary has been appointed in a foreign jurisdiction, the fiduciary may qualify as administrator. The appointment of a fiduciary in a foreign jurisdiction shall not preclude a resident or nonresident from qualifying as an administrator for the purposes of maintaining a wrongful death action pursuant to § 8.01-50 or a personal injury action in the Commonwealth.
A resident and nonresident may be appointed as coadministrators.
The statute of limitations for filing a wrongful death action in Virginia is two years from the date of death. Some important exceptions can extend the two-year statute of limitations, but you should consult with one of our skilled personal injury attorneys if you have a question in this regard.
This is set forth by Virginia Code Section 8.01- 52, which details damages that can be recovered as follows:
The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages as to it may seem fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:
1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
4. Reasonable funeral expenses; and
5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.
Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above.
The court shall apportion the costs of the action as it shall deem proper.
The last known place of residence, where the decedent had real estate, the city or county where the person dies or more particularly as set forth here:
A. The circuit courts shall have jurisdiction of the probate of wills. A will shall be offered for probate in the circuit court in the county or city wherein the decedent has a known place of residence; if he has no such known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and if there is no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.
B. Where any person has become, either voluntarily or involuntarily, a patient in a nursing home, convalescent home, or similar institution due to advanced age or impaired health, the place of legal residence of the person shall be rebuttably presumed to be the same as it was before he became a patient.
A review of a number of the clerks’ offices guides indicates that the location of probate of a will also serves as the accepted location for where an administrator can be appointed, and this is what several circuit courts provide; the appointment can occur where:
If the decedent resided in a nursing home because of advanced age or impaired health at the time of his death, then usually proper jurisdiction for probate and qualification is determined by the location of the decedent’s residence prior to admission to the nursing home. If the decedent resided in a retirement complex (but not a nursing home) at the time of his death, then usually the location of the retirement complex determines which court has jurisdiction.
This is a trickier question than it seems, and it’s so tricky that the Virginia code venue provisions relating to wrongful death actions was amended in 2024, and the pertinent statute is Virginia Code Section 8.01- 262, which sets forth generally where permissible venues may be had in wrongful death cases. The 2024 amendment clarified that in actions brought by an administrator, permissible venue is only in a county or city where the deceased person could have filed had they still been alive (See the last clause in the statute below).
In any actions to which this chapter applies except those actions enumerated in Category A where preferred venue is specified, one or more of the following counties or cities shall be permissible forums, such forums being sometimes referred to as “Category B” in this title:
1. Wherein the defendant resides or has his principal place of employment or, if the defendant is not an individual, wherein its principal office or principal place of business is located;
2. Wherein the defendant has a registered office, has appointed an agent to receive process, or such agent has been appointed by operation of the law; or, in case of withdrawal from the Commonwealth by such defendant, wherein venue herein was proper at the time of such withdrawal;
3. Provided there exists any practical nexus to the forum including, but not limited to, the location of fact witnesses, plaintiffs, or other evidence to the action, wherein the defendant regularly conducts substantial business activity, or in the case of withdrawal from the Commonwealth by such defendant, wherein venue herein was proper at the time of such withdrawal;
4. Wherein the cause of action, or any part thereof, arose;
5. In actions to recover or partition personal property, whether tangible or intangible, the county or city:
a. Wherein such property is physically located; or
b. Wherein the evidence of such property is located;
c. And if subdivisions a and b do not apply, wherein the plaintiff resides.
6. In actions against a fiduciary as defined in § 8.01-2 appointed under court authority, the county or city wherein such fiduciary qualified;
7. In actions for improper message transmission or misdelivery wherein the message was transmitted or delivered or wherein the message was accepted for delivery or was misdelivered;
8. In actions arising based on delivery of goods, wherein the goods were received;
9. If there is no other forum available in subdivisions 1 through 8 of this category, then the county or city where the defendant has property or debts owing to him subject to seizure by any civil process; or
10. Wherein any of the plaintiffs reside if (i) all of the defendants are unknown or are nonresidents of the Commonwealth or if (ii) there is no other forum available under any other provisions of § 8.01-261 or this section.
Notwithstanding the provisions of this section, in actions in which an administrator has been appointed pursuant to § 64.2-454, permissible venue shall only lie in a county or city in which venue would have been properly laid if the person for whom such appointment is made had survived.
Or, more simply, there are many potential venues, including where the plaintiff last resided, where some of the wrongful actions occurred or stated in another way, where a part of the cause of action arises, and typically where the defendant resides or does substantial business may be another permissible venue among others.
If you have questions about a potential Virginia wrongful death case, whether caused by a car crash, medical malpractice, or a trucking wreck, to name just a few, consult with one of our experienced injury attorneys at Shapiro, Washburn & Sharp law firm. Contact our office today to schedule a free and confidential case evaluation.
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