December 14, 2023
Virginia Probate – The Debts and Demands Process
The Debts and Demands (“D&D”) process is an optional procedure available to Personal Representatives of decedents’ estates. The purpose of the D&D process is to provide the Personal Representative with legal protection from unknown estate creditors. (Executors and Administrators are types of Personal Representatives; for simplicity, I will use the term “Executor” throughout this article.)
One of the primary duties of an Executor is to pay all the decedent’s debts. If the Executor fails to pay a debt, he or she may be personally liable to the creditor for payment. But of course, an Executor can only pay a debt if he or she is aware of its existence. The risk, then, is that an unknown creditor might appear after the Executor has already distributed all the assets to the beneficiaries and closed the estate. In this situation, the Executor has no money left to pay the creditor, and the Executor may face personal liability for the unpaid debt.
The D&D Hearing
One way the Executor can protect himself or herself from this risk is to go through the D&D process. The process has two parts. The first part is a hearing before the Commissioner of Accounts (“COA”). To initiate the hearing, the Executor sends the COA a simple written request asking for a D&D hearing, along with a check for payment. The fee is currently $350, plus the cost of advertisement (I usually call the COA’s office beforehand to ask for the total fee). The COA sets a date, time, and location for the hearing and publishes this information in the newspaper. The Executor must send Notice of the hearing to any known creditors.
The COA does not require the Executor to attend the hearing because it is extremely uncommon for any creditor to actually appear. If a creditor does happen to show up, the COA will simply continue the hearing to a future date when the Executor and creditor are both available. After the hearing, the COA will prepare a report. Usually the report is very brief because nothing actually happens at the hearing. This report is filed with the Circuit Court.
The Court Hearing
After the COA files his or her report, the Executor petitions the Circuit Court for authorization to distribute the estate to the beneficiaries. This is the second part of the D&D process. Most Executors need an attorney’s help to prepare this petition and the corresponding orders. There are court filing fees associated with this petition; most are less than $100. The Court sets a hearing date and advertises the hearing in the newspaper (the cost of advertisement is usually a few hundred dollars and it is billed directly to the Executor).
Again, creditors are given the opportunity to appear at the court hearing; and again, they never do. Most judges do not require the Executor or his/her attorney to attend the hearing. However, it is a good idea to ask the judge’s assistant about the judge’s preference on this matter. If all goes smoothly, the judge will sign the order authorizing the Executor to distribute the estate assets to the beneficiaries. At this point, the Executor is released from personally liability toward any future creditors.
Should I do the D&D Process?
Most Executors in Virginia do not do the D&D process. All together, it costs several hundred dollars and takes a few months to complete. Whether or not that time and money is “worth it” depends on the situation. For example, if you are the Executor of Mom’s estate, and if you have been handling Mom’s finances for the last five years, and if Mom is financially sound, and if you know everything there is to know about Mom’s finances, then you will probably choose to skip the D&D process. On the other hand, if the decedent is your second cousin whom you’ve met once at your great-uncle’s funeral… doing the D&D process is probably a good investment. In this situation, you have no idea what’s going on with your second cousin’s finances, so the risk of missing a creditor is greater.
Regardless of the situation, an Executor should always discuss the merits of the D&D process with an experienced probate attorney. The Heritage Law Group specializes in probate estate administration and is looking forward to your call.