Special Needs Trusts

general

Commissioner’s Reports

Your commissioner conducts hearings on a variety of types of matters and files reports with the Circuit Court making findings and recommendations. The Circuit Court gives interested parties an opportunity to object to the report pursuant to Virginia Code § 64.2-1212 and then confirms or overrules the report. In order to provide fiduciaries and their counsel some insight into the hearing and decision-making process, your commissioner has posted a number of hearing reports below. The reports are a sampling of the various types of reports that the Commissioner’s office prepares. Each has been selected in light of the broad application of the issues presented. The Circuit Court has confirmed each of these reports except as expressly noted.

Matter Name

Fiduciary Number

Date Confirmed

Type of Report

Key Issues Discussed

FI-2005-0074290
FI-2005-0074291

1/13/2010

§ 26-29

Fiduciary fees; Authority of conservator to withdraw assets from ward’s trust; responsibility for assets outside conservator control; liability for tax penalties, delinquency fees and bank charges.

FI-2001-0067875

4/2/2010

§ 26-29

Distribution of personalty and residuary estate; valuation of assets distributed; loans to fiduciary; use of decedent ’s credit and ATM cards; duty to substantiate reimbursement amounts.

FI-2005-0075350

1/26/2009

§ 26-29
Debts & demands
Decree of Reference

Statutory allowances; determination of amount of family allowance; sale of motor vehicles; offset of debts from insolvent estate; payments to preserve assets as administrative expense; liability for funeral expenses; priority of claims.

FI-2007-0001651

12/1/2010

Decree of Reference

Rents from non-probate real estate; liability of fiduciary as co-borrower; corroboration of decedent ’s statements required; offset of professional fees from fiduciary fees; attorney fees of objecting party; distribution of wrongful death suit proceeds; intestate distribution.

FI-2006-0000542

9/17/2009

Debts & demands

Enforcement of property settlement agreement; bankruptcy discharge; guarantee of business loan by estate; attorney ’s fees for business wind-down

FI-2002-0069810

3/20/2013

64.2-1209

Non-judicial settlement; loans and distributions to fiduciary, duty of good faith and loyalty, ordinary prudence, abuse of discretion

FI-2006-0000949

3/31/2008

26-29

Funeral expenses; reserve for litigation; severance payments; 8.01-397; IRA beneficiary; fiduciary attorney fees

FI-2006-0000936

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; reasonable compensation as guardian; Rule 1:5, Virginia Rules of Professional Conduct*

FI-2007-0000675

5/23/2011

26-29

Fiduciary compensation; fiduciary reimbursement; advancements; joint accounts; distributions; sale of real estate; IRS filings; insurance proceeds; costs of hearing

FI-2003-0070674
FI-2009-0070675

6/10/2010

26-29

Fiduciary fees; reimbursement of travel expenses; fiduciary self-dealing

FI-2007-2070

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; reasonable compensation as guardian; Rule 1:5, Virginia Rules of Professional Conduct*

FI-2009-0001593

2/2/2011

26-29

Reverse mortgage; tangible personal property

FI-2004-73224

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; review of previously approved accounts upon objection; reasonable compensation as guardian; Rule 1:5, Virginia Rules of Professional Conduct*

FI -- 2005-0074708

3/23/2010

Debts & demands

Statute of limitations; lease repair expenses; time limit for election for statutory allowances

FI-2011-0000346

4/1/2013

Debts & demands

Fiduciary obligation to sell real estate in an insolvent estate

FI-1994-0054719

3/7/2011

26-29

Disproportionate distributions; convenience accounts; claim tolling of statute of limitations; plea of statute of limitations before commissioner; claims of fiduciary; distribution of tangible personal property

FI-2009-0001400

10/23/2009

Sale of Real Estate

Declining market value; sale below assessed value

FI-2009-0001400

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; reasonable compensation as guardian; Rule 1:5, Virginia Rules of Professional Conduct*

FI-2006-0001005

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; reasonable compensation when serving as conservator and as trustee; litigation services; Rule 1:5, Virginia Rules of Professional Conduct*

FI-2006-0001233

3/28/2008

26-29

Sale of real property; fiduciary self-dealing; agreements with decedent; statute of frauds

FI-2009-0000076

12/22/2009

Debts & demands

Fiduciary attorney fees; fees for tax preparation; fees for sale of non-probate real estate; fees for routine estate matters

FI-2005-0075409

10/21/2009

Debts & demands

Priority of judgment during lifetime of decedent; payments to preserve or determine assets; attorney ’s fees; distribution of personalty

FI-2008-0001212

2/16/2011

26-29

Liability for taxes upon liquidation of IRA; use of estate assets for non-estate purposes; fiduciary compensation

FI-2007-001576

4/30/2009

Debts & demands

Liability for post-death condominium assessments; interest upon claims in insolvent estates

FI-2011-0000187

4/24/2013

Debts & demands; 64.2-1209

Dispute of creditor claims, failure to appear and substantiate claims, personal liability of decedent, reimbursement of beneficiary expenses and legal fees, fiduciary attorney fees, objections to administration

FI-2008-0001152

5/31/2011

Debts & demands

Priority of claims

FI-2005-0075384

8/23/2006

Debts & demands

Proof of claim under 8.01-397; status of wrongful death claim

FI-2007-0001152

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; sale of real estate to pay compensation to fiduciary; Rule 1:5, Virginia Rules of Professional Conduct*

FI-2003-0072218

9/24/2009

26-29

Disproportionate distributions; fiduciary compensation; investment losses; interest on bequests

FI-2009-0000984

5/17/2010

Debts & demands

Liability for post-death condominium assessments; post-death judgment against decedent; post-death treatment of decedent ’s pet; claim filed post-hearing

FI-2000-0065285

11/29/2010

Minor’s Expenditures

Va. Code § 31-8.2; standard for approval of expenditures beyond the scope of parental duty; allocation between parent and child

FI-2008-0001763

1/19/2011

Debts & demands

Claim for home improvement costs; corroboration required

FI-2006-0001182

10/22/2009

26-29

Duty of trustee to disburse; duty to honor assignment of trust

FI-2006-0001904

1/22/2009

Debts & demands

Expenditures to preserve assets as administrative expenses; commission allowed when property not sold; priority of Federal tax lien

FI-2009-0000051

8/4/2010

Debts & demands
26-29

Reconciling conflicting testimony; testimony as to value of personalty; travel expenses of complaining witness; contents of inventory; burden of proof; inter vivos gift; bank accounts; funeral expenses; home repair and cleaning expenses; corroboration required of loan forgiveness; no-contest clause; fiduciary attorney fees

FI-2008-0001516

7/19/2010

Debts & demands

Promissory note; claim settlement; attorney ’s fees; disclaimer from insolvent estate

FI-2007-0000060

1/22/2009

Debts & demands

Liability for post-death condominium assessment; interest in an insolvent estate

FI-2009-0000407

7/24/2012

26-29

Fiduciary fees – review of reasonableness when billed at an hourly rate; reasonable compensation as guardian; Rule 1:5, Virginia Rules of Professional Conduct*

FI-2002-0069480

7/12/2010

26-29

Fiduciary liability for tax interest and penalties, professional fees. Fees of successor fiduciary. Joint account. Credit for advances of estate expenses. Agreement by some of the heirs.

FI-2002-0068679

6/18/2008

Decree of Reference
26-29

Operation and sale of decedent’s businesses; spouse’s occupancy of family residence; liability of estate for contribution for debt secured by joint property; accommodation maker; statutory allowances; distribution of estate; valuation of assets; fiduciary attorney fees; fiduciary self-dealing; expert valuation testimony; discount for minority interest and marketability in estate valuations; fiduciary attorney fees; 64.1-57 powers

FI-2008-0001273

10/14/2009

Debts & demands

Administrative expenses; attorney ’s fees of beneficiaries

FI-2007-0000875

4/14/11

26-29
Debts & demands

Attorney ’s fees as administrative expenses; offset of attorney ’s fees from fiduciary fees; fiduciary ’s liability for investment losses; fiduciary ’s liability for tax penalties and interest; reimbursement for fiduciary expenses; reimbursement of unauthorized expenditures; fiduciary liability for disbursement contrary to 64.1-157

FI-2008-0000790

10/21/2009

Debts & demands

Payments of real estate expenses to preserve property as administrative expenses

FI-2009-0002111

10/17/2011

26-29

Attorney ’s fee disclosure; reasonableness of fiduciary attorney ’s fees; dispute between beneficiaries; attorney ’s fees to aid in execution of estate; attorney ’s fees for routine duties of fiduciary; power of sale

* Exceptions overruled and remanded for further findings