If the personal estate of any person under a disability for whom a fiduciary has been appointed under any of the provisions of Title 64.2, be insufficient for the discharge of his debts or if the personal estate or residue thereof after payment of debts and the rents and profits of his real estate be insufficient for his maintenance and that of his family, if any, the fiduciary of his estate may petition a circuit court for authority to mortgage, lease or sell so much of the real estate of such person as may be necessary for the purposes aforesaid, or any of them, setting forth in the petition the particulars and amount of the estate, real and personal, and a statement of the application of any personal estate, and debts and demands existing against the estate. Those persons who would be heirs or distributees of the person under a disability if he had died at the time of commencement of the proceeding need not be made parties defendant to a proceeding pursuant to this section.
§ 8.01-78.Alternate procedure for sale of real estate of person under disability.
Chapter 3. Actions · Article 8. Actions for the Sale, Lease, Exchange, Redemption and Other Disposition of · Last amended 1983 · Last verified July 16, 2026
In one sentenceSection 8.01-78 lets a fiduciary petition the circuit court to mortgage, lease, or sell a disabled person’s real estate when the personal estate cannot cover debts or, after paying debts, cannot support the person and family, without joining prospective heirs or distributees as parties.
Full Text of § 8.01-78
Plain-English Summary
This section gives a fiduciary a streamlined path to raise money from a disabled person’s real estate when the personal estate falls short. It applies in two situations: the personal estate is insufficient to pay the person’s debts, or what remains of the personal estate after paying debts — together with rents and profits from the real estate — cannot support the person and any family.
In either case, the fiduciary petitions a circuit court for authority to mortgage, lease, or sell as much real estate as the situation requires, setting out in the petition the particulars and amount of the real and personal estate, how any personal estate has been applied, and the debts and demands against the estate. Unlike the general party requirements in § 8.01-69, this section excuses the fiduciary from joining the people who would be the disabled person’s heirs or distributees as defendants.
Frequently Asked Questions
When can a fiduciary use this alternate procedure instead of a general Article 8 suit?
When the disabled person’s personal estate cannot cover debts, or when what remains after paying debts, together with rents and profits, cannot support the person and family.
What must the petition include?
The particulars and amount of the person’s real and personal estate, a statement of how any personal estate has been applied, and the debts and demands against the estate.
Does the fiduciary have to name the disabled person’s prospective heirs as parties?
No. Section 8.01-78 excuses joining those who would be heirs or distributees had the person died when the proceeding began — an exception to the general rule in § 8.01-69.
What can the court authorize the fiduciary to do with the real estate?
Mortgage, lease, or sell as much of it as necessary to cover the debts or provide for the person’s maintenance and that of the family.
Who must have appointed the fiduciary before this section applies?
The fiduciary must have been appointed under one of the provisions of Title 64.2 — the section applies specifically to a fiduciary appointed that way.
Amendment History
Code 1950, § 8-689.1; 1952, c. 360; 1977, c. 617; 1983, c. 459.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
Also known as: fiduciary petition to sell real estate for debts virginia8.01-78 virginiaalternate procedure sale disabled person's land virginiamaintenance of disabled person from real estate proceeds virginia