Estate Frequently Asked Questions
1. Do I have to file the Affidavit of Notice when I am the fiduciary and the sole heir/beneficiary?
2. What is a specific bequest?
A specific bequest is a gift (bequest) of a specific item or asset to a named person or entity. The specific bequest must be clearly identified in the decedent’s will and the recipient of the bequest also must be clearly identified.
3. What is the difference between carrying value and market value when reporting on an account?
The carrying value is the fair market value of an asset upon date of death. The carrying value will remain static unless funds are added to the account or withdrawals are made from the account. A bank account or a money market account will always have the same carrying value and market value. Investment assets such as stocks or mutual funds fluctuate in value. Real estate usually fluctuates in value from year to year. For these assets, you will have a different carrying value and market value.
4. May I borrow money from the estate provided that I pay back the loan?
No. A fiduciary is prohibited from using money under their control for loans or personal investments for their benefit.
5. When can I distribute to the beneficiaries?
There is no timeline for making distributions. The fiduciary must remember that their first obligation as personal representative of the estate is to pay the decedent’s legal debts, including taxes.
6. May I make a distribution to a minor?
In general, you are not authorized to make a distribution to a minor. In most situations, the funds due to a minor will be paid to the minor’s Court appointed guardian. If the decedent died with a will, the will frequently provides instructions regarding distributions to a beneficiary who is under the age of 18. Please note that if the will provides for the minor’s funds to be held in trust, the named trustee will likely be required to qualify with the Court as a testamentary trustee before funds can be distributed. Our office recommends that you consult with a lawyer whenever the beneficiary is under the age of 18 to determine your authority and options when distributing assets to a minor.
7. If a decedent left no will, how do I know who inherits the residuary estate?
If the decedent died without a will, the estate is considered intestate and the decedent’s heirs-at-law will inherit the residuary estate. The Code of Virginia identifies who is considered an heir-at-law and in what order assets should be distributed. This office cannot determine the heirs-at-law for you. You are encouraged to consult with a lawyer to determine who inherits the residuary estate.
8. What happens when there is not enough money in the estate to pay all the bills?
In this situation, the estate is deemed to be insolvent. Do not pay any creditors. Schedule a Debts and Demands hearing in our office. After the hearing, the Commissioner will issue a report which gives the personal representative instructions as to the priority in which the decedent’s debts should be paid. If a lawful claim of the estate is paid out of order, the personal representative will be personally responsible for the improper payment.
9. What do I do if I cannot locate a beneficiary?
If you are unable to locate a beneficiary in a will, or an heir-at-law, the funds may be paid to Virginia Unclaimed Property or paid into the Court. Please consult with your lawyer if you encounter this situation.
10. May I submit a draft accounting to the commissioner’s office for review?
No. Due to the high volume of filings we receive, the commissioner’s office does not review draft accountings.
11. I am a creditor. How do I file a claim against an estate?
A claim may be filed with the commissioner’s office by completing the claim form in the Decedent Estates Forms section of this website and mailing the completed form, along with the required $95.00 filing fee, to the commissioner’s office at the address listed on the form. A claim submitted without the required fee cannot be accepted and will be returned to the claimant. Please note that the commissioner’s office may only accept a claim filed against a decedent. A copy of the form must also be sent to the personal representative of the estate.
12. I am a beneficiary. How do I find out what is happening with an estate?
The personal representative of the estate has a duty to keep you reasonably informed. If the personal representative refuses to provide you with information after your request, please advise our office in writing of your difficulty in obtaining information from the personal representative. The letter should also identify your concerns about the administration of the estate.