Frequently Asked Questions

General

Decedent Estates

Trusts

Conservatorships for an Incapacitated Adult

Guardianships for a Minor

General

1. Why must I file with the Commissioner of Accounts Office?

The filing of an Inventory and Settlement of Accounts is mandated by the Virginia Code.  At the time of your qualification, you signed a fiduciary acknowledgment which, among other duties, sets out your obligation to file an Inventory and subsequent Settlement of Accounts on an annual basis.

2. What happens if I do not file the necessary Inventory and Account(s) on time?

The Commissioner of Accounts is charged with the supervision of all qualified fiduciaries.  If you fail to timely file the Inventory or Account, the Commissioner of Accounts has the statutory authority and obligation to pursue enforcement against the fiduciary for his/her failure to file the necessary paperwork.  At each stage of the enforcement process, there are associated monetary costs to the fiduciary.  Ultimately, a failure to file the Inventory or an Account could result in your removal as fiduciary and/or a bond forfeiture.

3. Do I have to use the forms referenced on this website or can I make up my own?

You must use the forms on the website.

4. Once I make a filing, how do I know if it was approved?

After your filing has been reviewed by an auditor and approved by the Commissioner, you will receive a notice of the approval by mail.

5. Will I get my original documents back once my filing is approved?

Yes, your original documents will be returned to you upon approval.

6. Who can see the filings I prepare and file with the Commissioner of Accounts Office?

Interested persons can review the information you file with the Commissioner of Accounts Office.  Once a filing is approved, it is a public document which can reviewed by the general public at the Clerk’s Office.  See our Access to Files and Copy Policy for further details.

7. How do I get released from my surety bond?

You will be released from your surety bond upon approval of your final account if no exceptions are filed within 15 days of the approval. You may also petition the Court for release from your surety bond under certain circumstances. Our office recommends that you consult with a lawyer for assistance with Court procedures, as we are unable to provide legal advice.

8. 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 $55.00 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.

9. 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.

10. What’s New?

There are no recent changes to report at this time.  Please check the website regularly for updates.

Decedent Estates

1. Do I have to file the Affidavit of Notice when I am the fiduciary and the sole heir/beneficiary?

Yes.

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.

Trusts

1. 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 when the trustee first gains control of the asset.  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.

2. May I borrow money from the trust provided that I pay back the loan?

No.  A trustee is never authorized to borrow money from the trust.

3. May I distribute money to the beneficiaries from the trust before they reach the age in which the trust terminates?

The trustee should strictly follow the language in the Will in making distributions.  If the trustee wishes to deviate from the terms of the trust, the trustee should obtain a court order which authorizes the trustee to make an early distribution to a beneficiary not otherwise authorized by the terms of the trust.

Conservatorships for an Incapacitated Adult

1. How should a conservatorship bank account be titled?

The accounts should be titled as “(Fiduciary Name(s)), Conservator for (Ward’s name), Incapacitated Adult” or similar language.

2. Is a conservator allowed to provide spending money directly to the ward?

A court order may authorize small amounts of money which can be paid directly to the ward.  If the conservator believes that providing funds to the ward will enhance the quality of living for the ward, the conservator should request permission from the Commissioner to provide spending money directly to the ward. Such request must be in writing and will generally not be considered until after the first account is filed.

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 when the conservator first gains control of the asset.  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 conservatorship provided that I pay back the loan?

No.  A fiduciary is never allowed to borrow money from the ward’s estate.

5. What should a conservator do with the ward’s personal property, such as jewelry?

The conservator should safeguard the ward’s personal property especially if it is of significant value.  Depending on the ward’s financial resources, the conservator may need to sell personal property of value.

6. What is required of the conservator when the ward dies?

In most cases, the conservator will pay all funds under their control to the personal representative of the decedent’s estate.  If the asset has a beneficiary designation or is payable on death to another person, the asset will pass directly to the named beneficiary(s).  If the assets on hand at death are less than $25,000, the Virginia Code does authorize direct payment to certain individuals.  Please consult with your attorney if you are unsure what to do.  Nevertheless, the conservator will need to file a final account with the Commissioner of Accounts to show that the ward’s funds have been properly spent and distributed.

Guardianships for a Minor

1. How should a guardianship bank account be titled?

The accounts should be titled as “(Fiduciary Name(s)), Guardian for (Minor’s name), Minor” or similar language.

2. 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 when the guardian first gains control of the asset.  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.

3. May I borrow money from the guardianship provided that I pay back the loan?

No. There are no circumstances which would allow a guardian to borrow the minor’s funds.

4. What type of investments are appropriate for a minor’s funds?

With the understanding that all funds must be turned over to the minor at age 18, we recommend that the guardian invest the minor’s funds in a conservative manner.  Of course, each situation is different.  Factors to consider would be the amount of funds available for investment and the length of time until the minor reaches age 18.  It is appropriate, and highly recommended, that the fiduciary consult with a financial planner in making decisions as to how the minor’s funds are invested.

5. Is it a requirement to distribute all the guardianship funds to the minor upon their 18th birthday? For example, can the money be held to pay for college or until age 21?

All the guardianship funds must be paid to the minor at age 18.