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The commissioner of accounts conducts hearings in his office in Fairfax. Principally, these hearings relate to debts and demands, hearings pursuant to § 64.2-1209 of the Virginia Code, or direct referrals from the circuit court. In addition, brief hearings are held to deal with expenditures of minors. The hearings before the Commissioner are generally conducted in an informal manner without rigid application of the rules of evidence or procedure. While the hearings are informal, the commissioner will require advocates to present testimony and exhibits in support of their positions and routinely will request briefs from counsel on complex issues of law.

The commissioner charges the estate for the conduct of the hearing, the preparation and filing of the report, and the cost of advertising. The charge for routine hearings is set forth in the relevant fee schedules under the Commissioner’s Fees tab. For more complex proceedings, the commissioner charges based upon the time and effort required.

Hearings upon debts and demands are set out in the Virginia Code and well-established.1 Hearings pursuant to an order of reference from the circuit court are limited to the issues referred to the commissioner and are usually limited to certain explicit questions which the court wishes answered. Hearings pursuant to § 64.2-1209 of the Virginia Code are less well-defined and more open-ended.

The commissioner prepares his report after the hearing and receipt of any subsequent briefs. The commissioner’s fee for the preparation of the report is based upon the time required and the complexity of the issues presented. As noted above, the Virginia Code requires that a debts and demands report be prepared within sixty days of the hearing.2 While the other proceedings are not subject to the same statutory requirements, the commissioner makes an effort to issue his reports within that sixty day time period.

Pursuant to § 64.2-1211 of the Virginia Code, a commissioner’s report will stand confirmed by law fifteen days after the report has been filed with the court in the absence of any objections being filed thereto. If the parties file exceptions to the report, the circuit court hears those exceptions and has plenary authority to accept or reject the findings and conclusions of the commissioner.3 To file an exception to the commissioner’s report, a party must follow the Fairfax Circuit Court Clerk’s Office Probate Division’s “Procedures for Filing an Exception to a Personal Representative’s Accounting or a Commissioner of Accounts’ Report”.

Debts & Demands

Either the fiduciary or the claimant can request a debts and demands hearing before the commissioner.4 If a matter is complex or would benefit from a strict application of the rules, the Commissioner has the authority under Virginia Code § 64.2-550 to “direct the fiduciary or the claimant or either of them to institute a proceeding at law or in equity to establish the validity or invalidity of any claim or demand, which he deems not otherwise sufficiently proved.” The fiduciary must give disputed notice to the creditor if the estate disputes a claim.5 After notice, including advertisement, and an opportunity to be heard, the commissioner shall determine the claim and file his report with the court. Such reports are to be filed within 60 days of the hearing.6

Virginia Code § 64.2 – 1209

Generally, a hearing pursuant to § 64.2-1209 may encompass “anything which could be insisted upon or objected to by [an] interested person if the commissioner of accounts were acting under an order of a circuit court.” As the language implies, the principal constraint upon a hearing pursuant to § 64.2-1209 is that the matter not be the subject of a suit pending in which the Court could refer the matter to the Commissioner. If the Commissioner were to hold a hearing on matters properly before the Court without such a referral, it would require substantial effort on behalf of all the litigants, only to be subject to the independent, identical and authoritative review of the Court when it conducts its own evidentiary hearing. Such a result is contrary to the principles of judicial economy.

Sale of Real Estate

The commissioner is often called upon to review and approve the proposed sale of real estate by a minor’s guardian or by a conservator. The scope of that review is generally set forth in the order appointing the guardian or conservator.7 In those cases in which the clerk of the court appoints a guardian of a minor who owns real estate, the commissioner is required to set forth the conditions under which the sale of that real estate would be approved.8 As the requirements that the court imposes and those which the commissioner has established are generally similar, please refer to the Notice to Guardians of Minors Who Own Real Estate currently in effect in Fairfax, which is included among the Forms for Guardians. Generally, the commissioner is seeking evidence of the necessity of the sale, the value of the property, and the terms of the proposed sale. Where, as in the current environment, real estate values are unstable and diminishing, additional evidence is generally required to explain sales prices which are significantly lower than prior sales or assessed value. In light of the time constraints on most real estate transactions, the commissioner’s office makes every effort to reply promptly to requests for approval of a real estate sale.

Expenditures on behalf of a minor

The legal guardian of a minor’s estate is not to make any distributions of income or principal to or for a minor ward who has a living parent, unless the court finds that the parent is unable to completely fulfill his or her duty of support, or finds the distribution is beyond the scope of parental duty of support.9 The commissioner has concurrent jurisdiction with the court to approve annual expenditures of $5,000 or less.10 § 64.2-1802 of the Virginia Code requires that the commissioner give five days’ written notice of a scheduled hearing date to any minor who is fourteen years of age or older.

  1. See Va. Code Ann. § 64.2-550.
  2. [98]Va. Code Ann. § 64.2-551.
  3. Morris v. United Virginia Bank, 237 Va. 331, 377 S.E.2d 611 (1989). Cf. Morrill v. Morrill, 45 Va. App. 709, 613 S.E.2d 821 (2005)(review of recommendations of commissioner in chancery).
  4. Va. Code Ann. § 64.2-552.
  5. Va. Code Ann. § 64.2-550.
  6. Va. Code Ann. § 64.2-551.
  7. See, e.g., Va. Code Ann. § 64.2-2022.B.
  8. Va. Code Ann. § 64.2-1805.
  9. Va. Code Ann. § 64.2-1801.
  10. Va. Code Ann. § 64.2-1802 (effective July 1, 2014; prior thereto the limit was $3,000).