Origins of Commissioner System

The circuit court appoints the commissioner, who must be an attorney. The court may appoint as many commissioners as may be required to carry out the duties of the office. The commissioner serves at the pleasure of the circuit court. The commissioner of accounts “shall have a general supervision of all fiduciaries admitted to qualify in such court or before the clerk thereof and make all ex parte settlements of their accounts.” Va. Code Ann. § 64.2-1200.

Virginia is the only jurisdiction in the United States with a system comparable to the commissioner of accounts system.1 The system began with the revision of the Virginia Code in 1849. Prior to that revision, Virginia allowed the executor to appoint a commissioner, usually his friend or neighbor with no knowledge of, or experience in, estate law, to approve the executor’s account. That system led to much litigation. Those proposing the new system in 1849 stated:

• “it must be a great improvement to have such accounts settled by commissioners holding their offices under appointment of the circuit courts; commissioners appointed such because of their acquaintance with the principles on which the accounts should be stated, and from whom, therefore a settlement on proper principles may generally be expected. We think too benefit will result from having the reports of such settlements returned in all cases to the circuit courts, which may be expected better to examine into, and more correctly to decide upon the matters arising on such accounts, than could be done in the county and corporation courts.”2

Over the years, the commissioner system has held up well in comparison to other systems. It is generally viewed as “effective and economical.”3 The commissioner system operates without public funds, yet Virginia continues to rank among those states with the lowest probate administration costs.4

1. Commission on Virginia’s Courts in the 21st Century: To Benefit All; To Exclude None, Appendix at 48.
2. Report of the Revisors of the Code of Virginia at Title XXXIX, Chapter CXXXII, 1st (January 1849).
3. Commission on Virginia’s Courts in the 21st Century: To Benefit All; To Exclude None, Appendix at 45.
4. In 1990, AARP estimated that probate costs were between 2%-10% of the gross estate. Probate: Consumer Perspectives and Concerns. The National Association of Financial and Estate Planning estimates that average probate costs were between 4% and 10% of the value of the estate. NAFEP, Estate Planning Basics. Charles Schwab estimates the average probate costs in Virginia to be 3%. Charles Schwab Probate Cost Calculator. In 1975, the Virginia General Assembly noted that “Virginia ranks near the bottom on the American Bar Association scale comparing administration costs among the states.” S. Doc. 15 (1975). Today, Money Magazine states: “In general, say estate lawyers, the probate process is particularly costly in California, New York and Pennsylvania, where total fees could top $35,000 on a $600,000 estate. For an estate of the same size in comparatively bargain states like North Carolina, Texas and Virginia, probate would run less than $16,000.” Smith, When to Trust Living Trusts, August 1, 1990. The Virginia State Bar notes: “The overall costs of probate in Virginia are not nearly as great as in many other states, and accordingly, there are often sound reasons probate should not be avoided.” Virginia State Bar, Planning for the Future. Similarly, the Virginia Cooperative Extension Services states: “the cost of probate is not significant in Virginia.” Virginia Cooperative Extension, Managing Prosperity: Estate and Retirement Planning for All Ages Probate and the Probate Process.