By Attorney Jennifer Kahl, June 18, 2019
After consulting with an experienced estate administration attorney, you have determined that it is necessary to open a formal probate estate (click here for a basic calculation). You have started the process by qualifying as Personal Representative at the Court and receiving your Qualification Letter. The Clerk has “assigned” your estate to someone called the Commissioner of Accounts. So how is this person and what exactly does he or she do?
The Virginia Commissioner System
Virginia’s probate system is unique. While most states have probate courts and probate judges, Virginia relies on the Circuit Courts and the Commissioners. You won’t find a “Commissioner of Accounts” in any other state. In the most simplified terms, the Courts handle the “big” issues that must be reviewed by a judge or clerk, and the Commissioner handles everything else. The idea is to reduce the workload of the Court. The Commissioners are local attorneys who are appointed by the Circuit Court judges. Most Commissioners maintain their private law practices while simultaneously fulfilling their Commissioner roles. Commissioners are not financially or administratively supported by the Courts or other public funds. Each Commissioner must have her own office and manage and pay her own staff. The Circuit Court in each jurisdiction sets a schedule for the fees their Commissioners can charge. (Visit Virginia’s Court System website to search for Commissioners throughout the Commonwealth).
Probate Duties of the Court
You must personally appear before the Clerk of Court to initially qualify as personal representative of the estate. With any luck, that will be the one and only time you must go to Court. In that case, the remainder of your communication with be with the Commissioner. However, there are a number of situations where you might find yourself returning to Court. Here are a few examples:
- If there is some defect in the execution of the Will (i.e. the notary forgot to stamp his signature, or the Will is not self-proved).
- If someone contests the validity of the Will (i.e. your brother claims that Mom was drunk when she signed the Will and didn’t realize what she was doing).
- If the terms of the Will are unclear or ambiguous or if you are unable to locate a beneficiary of the estate.
- If you need to sell the decedent’s real estate, but you don’t have a Will that explicitly gives you that authority.
- If a creditor makes a claim against the estate and you don’t believe it is legitimate, or if the estate is insolvent (meaning that there aren’t enough assets to pay all the debts).
Duties of the Commissioner
The primary job of the Commissioner is to audit and review the estate accountings and inventories that you submit to her. The Commissioner will either approve or reject your filings, and then file a report with the Court. If you are delinquent with your filings, the Commissioner will report you to the Court and initiate proceedings to enforce the fulfillment of your duties. In the general course of estate administration, most of your interactions with the Commissioner will be about your accountings.
Commissioners conduct hearings on creditor claims and hear complaints from disgruntled beneficiaries. In general, if any personal or entity disagrees with the personal representative’s handling of the estate, the Commissioner is the first person to contact. Many times, the Commissioner can settle the dispute. If the dispute continues, or if the Commissioner feels the nature of the dispute is such that judge needs to hear it, the Commissioner will refer the case to the Court.
Commissioners do other things such as determine the sufficiency of fiduciary bonds and determine reasonable compensation for personal representatives. They help educate fiduciaries about their duties and, in certain circumstances, can assist you in accomplishing those duties.
Things the Commissioner Does Not Do
While the Commissioner can offer significant guidance through the estate process, it is not her job to administer the estate for you. It is not her job to help you fill out the inventory or figure out how to balance your accounting. Though the Commissioner is an attorney, she is not your attorney. She has no legal obligation to look out for your best interest. She does not represent you and she cannot give you legal advice.
If you need assistance in administering the estate, please call our office to speak with one of our experienced estate administration attorneys.