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Developed and maintained by the Division of Legislative Automated Systems.
1997 SESSION
971560837Be it enacted by the General Assembly of Virginia:
1. That §§ 26-2, 26-3, 26-8.1, 26-12, 26-12.1, 26-15, 26-17.3, 26-18, 26-24, 26-32, 26-37, 26-39, and 55-59.4 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding a section numbered 26-1.2 as follows:
§ 26-1.2. Information to be provided to clerk by fiduciary.
On and after January 1, 1998, every person seeking to qualify in any fiduciary capacity before the court or clerk shall provide to the court or clerk the information required to make the qualification on forms provided to the proposed fiduciary by the clerk. The forms, with appropriate instructions concerning their use, shall be provided to each clerk by the Office of the Executive Secretary of the Supreme Court. In lieu of the form, a computer-generated facsimile of the form may used by any person seeking to qualify.
§ 26-2. Commissioners to examine and report on bonds and whether fiduciaries should be removed.
When any fiduciary, other than a sheriff or other officer, who
is required to do so, except a sheriff or other officer,
has filed with a commissioner an inventory or has laid
the statement required by § 26-17 before a
an account with the commissioner of
accounts, the commissioner shall examine whether such the
fiduciary has given such bond as the law requires, and whether it is in a
penalty, and with sureties sufficient. Any commissioner of accounts for
the court in which the order was made conferring
authority on such the fiduciary his
authority was made, shall investigate any of such
matters, or inquire whether security ought to be required of a fiduciary who
may have been allowed to qualify without giving it, or whether, by reason of
the incapacity, misconduct, or removal of any fiduciary from this Commonwealth,
or for any other cause, it is improper to permit the estate of the decedent,
ward, or other person, to remain under his control. The
investigation shall be made at any time before such statement is
laid before a required filing is made with the
commissioner, upon the application of any person who is interested or appears
as next friend of an infant interested, after reasonable notice to such
the fiduciary, investigate any of such matters, or
inquire whether security ought to be required of a fiduciary who may have been
allowed to qualify without giving it, or whether, by reason of the incapacity,
misconduct, or removal of any fiduciary from this Commonwealth, or for any
other cause, it is improper to permit the estate of the decedent, ward, or
other person, to remain under his control. The result of every such
examination and inquiry shall be reported by the commissioner to the court by
which he is appointed and to the clerk of such court .
When any fiduciary of an estate has given a bond to the court and then absconds with or improperly disburses any or all of the assets of the estate, the commissioner may petition the court in which the order was made conferring his authority on the fiduciary, and ask the court to order that such bond be forfeited.
§ 26-3. When court may require new bond, or revoke authority; giving new bond upon motion of fiduciary, surety or other party in interest.
The court under whose order or under the order of whose clerk any such
fiduciary derives his authority, on the application of any surety or his
personal representative, shall, or, when it appears proper on such
report of the clerk or a commissioner or on evidence adduced before it by
any party interested, may, at any time, whether such fiduciary shall or shall
not have before given bond, or whether he shall have given one with or without
sureties, order him to give before such the court, or
before the clerk thereof, a new bond in a reasonable time
to be prescribed by it in such penalty and with or without sureties as may
appear to it to be proper and may, if such. In all
cases where the fiduciary qualified pursuant to an order
issued by a clerk, the clerk shall have the
same power regarding bond and surety. If the order be
of the court or clerk is not complied with, or
whenever from any cause it appears proper, the court may
revoke and annul the powers of any such fiduciary; but.
However, no such order shall be made unless reasonable notice
appear appears to have been given to such
the fiduciary by (i) the commissioner who made such
the report, or by (ii) the surety or his
representative making the application aforesaid, or by or (iii)
the service of a rule or otherwise; and no such. No
order or revocation shall invalidate any previous act of such fiduciary.
Upon motion of any such the fiduciary, surety or other
party in interest, a new bond may be given before the court, or
before the clerk thereof, in such penalty and with such
sureties as may appear to the court or the clerk to be proper;
which. The new bond shall have the effect provided by §
49-14.
§ 26-8.1. Subpoena powers of commissioners, assistants and deputies.
Commissioners of accounts, assistant commissioners of accounts and deputy commissioners of accounts shall have the power to issue subpoenas to require any person to appear before them and to issue subpoenas duces tecum to require the production of any documents or papers before them. Such commissioners shall not have the power to punish any person for contempt for failure to appear or to produce documents or papers, but may certify the fact of such nonappearance or failure to produce to the circuit court, which may impose penalties for civil contempt as if the court had issued the subpoena.
§ 26-12. Inventories to be filed with commissioners.
A. Every personal representative, guardian, or
curator or committee, shall, within four months
after the date of the order conferring his authority, return to the
commissioner of accounts, under his oath and in proper form, an
inventory of all the personal estate which is under his supervision
and control, the decedent's interest in any multiple
party account in any financial institution, all real estate over which he
has the power of sale and any other real estate of the decedent of which
he has knowledgethat is an asset of the
decedent's estate, whether or
not situated in the Commonwealth; and shall,
within four months, after any other such estate shall come to his possession or
knowledge, return to such commissioner a further inventory thereof.
Every personal representative or curator shall also
return to the commissioner an
inventory of any such assets discovered thereafter as provided in
subsection D.
B. Every guardian or committee shall, within four months after the date of the order conferring his authority, return to the commissioner of accounts an inventory of the ward's personal estate which is under his supervision and control, the ward's real estate, the ward's legal or equitable ownership interest in any real or personal property that will pass to another at the ward's death by a means other than testate or intestate succession, and any periodic payments of money to which the ward is entitled. Every guardian or committee shall also return to the commissioner an inventory of any such assets discovered thereafter as provided in subsection D.
C. In listing such property pursuant to subsection A
or B, the fiduciary shall place the market value on each item unless
appraisers are appointed under § 64.1-133, in which case such appraised
values shall be used. The market value shall be determined as of the date of
death if a decedent's estate, and if not, as of the date of qualification. Any
reasonable expense incurred in determining such values shall be allowable as a
cost of the administration of such the estate.
D. In the case of assets discovered by a fiduciary after filing an inventory, the further inventory required by subsections A and B may be made by filing an amended inventory showing all assets of the estate, by filing an additional inventory showing only the after-discovered assets or, with the permission of the commissioner of accounts, by showing the after-discovered assets on the estate's next regular accounting. The filing must be made or the permission granted within four months after the discovery of the assets.
§ 26-12.1. Forms for inventories.
Forms and instructions for the inventories required by § 26-12 shall
be provided to each clerk of court by the Office of the Executive Secretary of
the Supreme Court. Every inventory filed pursuant to § 26-12
mayshall be filed on appropriate forms provided
this form, which shall be provided to the fiduciary by the
clerk of the court granting administration or on a
computer-generated facsimile of
this form.
(a) When appraisers are appointed either upon request of the fiduciary or
upon motion of the court or clerk thereof, the form may be as follows:
VIRGINIA: In the Clerk's Office of the..............Court of the.........of ........, on the................day of ............, 19 .... Inventory and Appraisement of the Estate of ................. ................. ................. ................. Oath of Appraisers STATE OF VIRGINIA, ..............of.................., to wit: This day before me, ..................., a Notary Public for the.......aforesaid, in the State of Virginia, personally appeared.........and......., three of the persons named as appraisers of theforegoing estate and made oath that they would truly and justly appraise all the property, both real and personal, of the estate of......., deceased, under the authority, supervision and control of the personal representative and such other property of said estate as they may be requested to appraise by said personal representative, and return their inventory and appraisement under their hands as the law directs. Given under my hand, this ............ day of......., 19..... My commission expires ....................................... ................................ Notary Public I. Property under the authority, supervision and control of Personal Representative: _________________________________________________________________ DESCRIPTION OF PROPERTY VALUE _________________________________________________________________ TOTAL $ __________________________________________________________________ (Use additional sheets if necessary) The foregoing will be printed on page one. II. Property appraised at request of the Personal Representative: (If none, so state) __________________________________________________________________ DESCRIPTION OF PROPERTY VALUE __________________________________________________________________ TOTAL $ __________________________________________________________________ (Use additional sheets if necessary) The foregoing will be printed on page two. Certificate of Appraisers WE, THE UNDERSIGNED, ....................................................three of the appraisers appointed by the Clerk of the.............. Court ofthe...........of .............. by order entered on the .......day of.....,19...., to appraise all the property, both real and personal, of the estate of .........., deceased, having been first duly sworn, have appraised allsuch property under the authority, supervision and control of the personalrepresentative, and such other property of said estate requested to beappraised by said personal representative, and herewith return the foregoingas our appraisement thereof: ............................................ Appraisers: ............................................ ............................................ Certificate of Personal Representative I, ................., solemnly swear (or affirm) that to the best of my knowledge and belief the foregoing inventory and appraisement embraces all the property, both real and personal of the estate of ..........., deceased, under my authority, supervision and control as .......... thereof, aggregating $...; and also all other property of said estate of which I have knowledge. ........................................ Address ........................................ ........................................ Subscribed and sworn to before me this .......day of ......, 19.... My commission expires ..................................... ............................... Notary Public COMMISSIONER'S CERTIFICATE ________ Inspected, found to be in proper form, and approved this ........day of..............., 19 ...... ........................................ Commissioner of Accounts ________ VIRGINIA: In the Clerk's Office of the ............... Court of the............of................on the.......... day of.............., 19...... The foregoing Inventory and Appraisement of the estate of............, deceased, was this day received and admitted to record. .............................., Clerk By ..........................., D.C. The foregoing will be printed on page three.___________________________________________________________ INVENTORY AND APPRAISEMENT of the Estate of ........................................................... DECEASED ___________________________________________________________ ___________________________________________________________ Received by the Commissioner of Accounts ..................... 19 ........ ___________________________________________________________ ___________________________________________________________ Deliver to the Clerk ....................., 19 ........ Recorded: Book ...... Page ...... ____________________________________________________________ ____________________________________________________________The foregoing will be printed on page four, and positioned so that when folded for filing this information will be discernible.(b) When no appraisers are appointed, the form may be as follows: VIRGINIA: In the Clerk's Office of the ................... Court of the ........ of .......,on the...... day of .........., 19 .... Inventory of the Estate of .................... I. Personal property under the authority, supervision and control of the personal representative: ____________________________________________________________ DESCRIPTION OF PROPERTY VALUE ____________________________________________________________ TOTAL $ ____________________________________________________________(Use additional sheets if necessary) The foregoing will be printed on page one. II. Real property in which the decedent had an interest over which the Personal Representative has power of sale: _____________________________________________________________ DESCRIPTION OF PROPERTY VALUE _____________________________________________________________ TOTAL $ _____________________________________________________________ (Use additional sheets if necessary) The foregoing will be printed on page two. III. Other real property in which the decedent had an interest over which the Personal Representative has no power of sale: _____________________________________________________________ DESCRIPTION OF PROPERTY VALUE _____________________________________________________________ TOTAL $ _____________________________________________________________(Use additional sheets if necessary) The foregoing will be printed on page three. Certificate of Fiduciary I,....................., solemnly swear (or affirm) that to the best of my knowledge and belief the foregoing inventory embraces all the property, both real and personal, of the estate of........................ under my authority, supervision and control as .............. thereof, aggregating $....................... ..................................... Address ............................ ............................ Subscribed and sworn to before me this..........day of........, 19.... My commission expires .................... ..................................... Notary Public COMMISSIONER'S CERTIFICATE ________Inspected, found to be in proper form, and approved this......... day of............, 19.......................................... Commissioner of Accounts________ VIRGINIA: In the Clerk's Office of the .... Court of the ...........of ...........on the.............day of ................., 19........ The foregoing Inventory of the estate of..........., deceased, was this day received and admitted to record. ......................, Clerk. By....................., D.C. The foregoing will be printed on page four. ________________________________________________________ ________________________________________________________ INVENTORY of the Estate of ............................. DECEASED ________________________________________________________ ________________________________________________________ Received by the Commissioner of Accounts ..........., 19.... ________________________________________________________ ________________________________________________________ Delivered to the Clerk ..........., 19..... Recorded: Book..........Page......... ________________________________________________________ ________________________________________________________
The foregoing will be printed on page five, and positioned so that when
folded
for filing this information will be discernible.
(c) The court or clerk shall upon request furnish each fiduciary with a
copy
of the order appointing such appraisers.
(d) The court or clerk thereof shall provide the fiduciary with a list
of
instructions (which may be printed on the forms supplied for making
such
inventory or inventory and appraisement) which shall be substantially
as
follows:
INSTRUCTIONS TO FIDUCIARIES AND APPRAISERS
1. File this Inventory in duplicate with the Commissioner of Accounts
within
four months after qualification.
2. Assets should be clearly identified and listed in reasonable detail
as of
date of death if a decedent's estate, and if not, as of date of
qualification. It is not necessary to list each article of personal
effects
and household property separately; however, if an article is
specifically
mentioned in the will or is of unusual value, it should be listed
separately.
Make, model, and year of motor vehicle should be given. State name of
bank or
banks and sums on deposit therein. A promissory note should be described
by
maker's name and balance due thereon and bonds and shares of stock by
usual
description. Give issue or maturity date of United States Bonds. If
an
unincorporated business or interest therein is included among the assets,
the
name and location of the business should be given.
3. If this form is being utilized to state the assets of a minor
or
incapacitated person by his or her guardian, Sections II, III and IV are
not
applicable and Section I should be utilized to state the ward's
personal
property.
4. The value of the items listed under Section I dealing with
personal
property and Section II dealing with real estate over which the
personal
representative has power of sale should total the aggregate amount stated
in
the Certificate of Fiduciary and should include all of the assets, real
and
personal, over which the fiduciary has supervision and control.
5. Personal property to be listed under Section I includes all assets
other
than real estate such as currency and coins, bank accounts, stocks and
bonds,
mutual funds, automobiles, boats, sporting equipment, furniture, silver,
gold,
rugs having value and any other property having value. Personal
property
which was held by the decedent and surviving spouse as tenants by the
entirety
or by the decedent and a surviving co-owner as joint tenants with right
of
survivorship or personal property payable directly to a surviving
beneficiary
need not be listed.
6. Real estate to be listed under Section III includes real estate
over
which the personal representative has no power of sale such as property
held
by the decedent and another as joint tenants with right of survivorship
or as
tenants by the entireties or property which is subject to a direct
devise.
7. When appraisers are appointed, the values determined by such
appraisers
should be listed on the inventory in the column headed "Value." If
appraisers
are not appointed, the fiduciary shall determine the value of each item
listed
on the inventory.
8. The fiduciary may retain expert assistance in determining values
reported
herein and reasonable expense incurred for such assistance may be
allowed as
a cost of administration.
(e) Such other instructions not inconsistent with the foregoing as the
court having jurisdiction deems appropriate may be included with the
instructions set forth above. Such forms as may be required shall be paid for
as other books and stationery used for public records.
§ 26-15. Accounts of sales under deeds of trust, etc.
When sale is made under any recorded deed of trust, mortgage or assignment
for benefit of creditors, otherwise than under a decree, there
shall, within six months after the sale, be
returned, by the trustee
Within six months after the date of a sale made under any
recorded deed of trust, mortgage or assignment for benefit of creditors,
otherwise than under a decree, the trustee
shall return an account of sale to the commissioner of accounts of the
court wherein the instrument was first recorded an account of sale.
The date of sale is the date specified in the notice of sale, or any
postponement thereof, as required by subsection A of § 55-59.1.
The commissioner shall state, settle and report to the court an account
of the transactions of such trustee, and the same shall be recorded as other
fiduciary reports. Any trustee failing to comply with this section shall
forfeit his commissions on such sale, unless such commissions are allowed by
the court. If the commissioner of accounts of the court wherein an instrument
was first recorded becomes aware that an account as required by this section
has not been filed, the commissioner and the court shall proceed against the
trustee in like manner and impose like penalties as set forth in § 26-13,
unless such trustee is excused for sufficient reason. If after a deed of trust
is given on land lying in a county, and before sale thereunder, the land is
taken within the limits of the incorporated city, the returns of the trustee
and settlement of his accounts shall be before the commissioner of accounts of
such city.
§ 26-17.3. Settlement of fiduciaries' accounts.
Every fiduciary referred to in this chapter shall account before the commissioner of accounts of the jurisdiction wherein he qualified as hereinafter provided. Every account shall be signed by all fiduciaries. A statement in a separate document attached to an account that a fiduciary has received, read and agrees with the account shall, if signed by the fiduciary, be treated as a signature to the account.
Forms for accounts containing instructions concerning their use shall be provided to each clerk of court by the Office of the Executive Secretary of the Supreme Court, and the clerk shall provide the appropriate form to every fiduciary who qualifies in the clerk's office.
An accounting may be made on the form provided by the clerk, on a computer-generated facsimile or in any other clear format.
§ 26-18. Failure to account; enforcement.
If any such fiduciary fails to make any such exhibit, a
complete and proper account as required by § 26-17.3, the
commissioner and the court shall proceed against him in like manner, and the
court shall impose the same penalty, unless such fiduciary is excused for
sufficient reason, as is herein provided in cases in which fiduciaries fail to
return inventories of their respective estates. Every commissioner shall
either proceed against each such fiduciary by summons and report to the
court as provided by § 26-13, or file with his court or judge, and a
duplicate in the clerk's office, in the months of April and October, a list of
all fiduciaries required to make periodic settlements who have
failed to make such settlements a complete and proper account
as required, and, at the same times, with like. At the
same time, and also with a duplicate to be filed with the
clerk, the commissioner shall file with the court a report of all
fiduciary accounts which have been before him for more than three months and
which remain unsettled. Upon the filing of this list the clerk shall issue a
summons against each fiduciary shown thereon returnable to the first day of the
next term of court and the court shall take action against such fiduciary in
accordance with § 26-13 for failure to file inventories.
Whenever the commissioner reports to the court that a fiduciary, who is an attorney-at-law licensed to practice in the Commonwealth, has failed to make the required settlement within thirty days after the date of service of a summons, the commissioner shall also mail a copy of his report to the Virginia State Bar.
§ 26-24. Fees of commissioners of accounts.
The fees of commissioners of accounts for the special duties hereinbefore
imposed upon them shall be the same as are now allowed by law to
commissioners in chancery prescribed by the court which appointed
them.
§ 26-32. Where filed.
The commissioner shall file the report in the office of the court by which he
is appointed, as soon as practicable after its completion, and
shall, with his report, return such of the vouchers or evidence before him as
any person interested may desire him to return, or as he may deem proper.
§ 26-37. Disposition of papers relating to estates.
All inventories and original accounts of sales filed with the clerk as required
by §§ 26-14 and 26-16, all reports filed with the clerk under §
26-35, when the same have been actually recorded by the clerk,
compared, indexed, and confirmed as respectively required by law, and all
vouchers or other evidence filed with commissioner, the court or the clerk at
the time of confirmation of an account, and not required as evidence of any
further matter of inquiry pending before the court or the commissioner, shall
upon request made at the time of filing the same, or in the discretion of
the commissioner if no request is made, be returned by the commissioner
or by the clerk of the court to the fiduciary or other person who filed the
same.
The clerk of court, may destroy any papers mentioned in the first
paragraph of this section or any other papers relating to estates, when the
matter concerned has been closed with final settlement for more than three
years and appropriate recordations have been made; provided, however,
that. However, nothing in this section shall apply to
original documents recorded by binding; and provided further that if such
. If recordation is done by facsimile or microfilm
reproduction process, such papers may be destroyed if the return
thereof was not requested at the time of filing for recordation.
The commissioner of accounts may destroy any such papers when the matter concerned has been closed with a confirmed final accounting for more than one year.
§ 26-39. Time within which guardian or other fiduciary to invest funds; reasonable diligence required.
Whenever a guardian or other fiduciary charged with the investment of funds
collects any principal he shall have a reasonable time not exceeding four
months to invest or loan the same, and shall not be charged with interest
thereon until the expiration of such time; provided that such.
A guardian or any other fiduciary shall only be
required to exercise reasonable diligence in lending or investing trust
funds, invest in accordance with the provisions of §§
26-40.01, 26-40.1, 26-40.2, 26-44, 26-44.1 and 26-45.1 and
if such guardian or other fiduciary is reasonably diligent in lending or
investing such funds he so invests shall be accountable only
for such interest and profits as are earned. If any funds be
loaned at a rate of interest less than six per centum per annum
are otherwise invested without the previous consent of the
court having jurisdiction of such trust funds, except in the classes of
securities bearing less than that rate of interest now or hereafter permitted
by law the burden shall be on the guardian or other fiduciary before his
settlement is approved by the commissioner of accounts to show to the
satisfaction of the commissioner that after exercising reasonable diligence he
was unable to lend the funds at six per centum interest on good security
and that the rate of interest securedso invest the funds and that
the investment made was reasonable and proper under all of the
circumstances and fair to the beneficiary of the funds.
This section shall not be construed as altering the provisions of any will, deed or other instrument giving to the fiduciary discretion as to the rate of interest, character of security, nature or investment under the trust, or time within which the trust funds are to be loaned or invested.
§ 55-59.4. Powers and duties of trustee in event of sale under or satisfaction of deed of trust.
A. In the event of sale under a deed of trust, the trustee shall have the following powers and duties in addition to all others:
1. Written one-price bids may be made and shall be received by the trustee from the beneficiary or any other person for entry by announcement of the trustee at the sale. Any person other than the trustee may bid at the foreclosure sale, including a person who has submitted a written one-price bid. Upon request to the trustee or trustees, any other bidder in attendance at a foreclosure sale shall be permitted to inspect written bids. Whenever the written bid of the beneficiary is the highest bid submitted at the sale, such document shall be filed by the trustee with his account of sale required under § 26-15. The written bid submitted pursuant to this subsection may be prepared by the beneficiary, its agent or attorney.
2. The trustee may require of any bidder at any sale a cash deposit of as much as ten per centum of the sale price (unless the deed of trust specifies a higher or lower maximum, which may be done by the words "bidder's deposit of not more than ..... dollars may be required," or words of like purport), before his bid is received, which shall be refunded to the bidder unless the property is sold to him, otherwise to be applied to his credit in settlement or, should he fail to complete his purchase promptly, to be applied to pay the costs and expense of sale and the balance, if any, to be retained by the trustee as his compensation in connection with that sale.
3. The trustee shall receive and receipt for the proceeds of sale, no purchaser
being required to see to the application of the proceeds,
account for the same to the commissioner of
accounts pursuant to § 26-15 and apply the same, first, to discharge
the expenses of executing the trust, including a reasonable
commission to the trustee of five per centum of the gross proceeds
of sale; secondly, to discharge all taxes, levies, and assessment, with
costs and interest if they have priority over the lien of the deed of trust,
including the due pro rata thereof for the current year; thirdly, to discharge
in the order of their priority, if any, the remaining debts and obligations
secured by the deed, and any liens of record inferior to the deed of trust
under which sale is made, with lawful interest; and, fourthly, the residue of
the proceeds shall be paid to the grantor or his assigns; provided, however,
that the trustee as to such residue shall not be bound by any inheritance,
devise, conveyance, assignment or lien of or upon the grantor's equity, without
actual notice thereof prior to distribution; provided further that such order
of priorities shall not be changed or varied by the deed of trust.
B. Upon discharge (other than by sale by the trustee) of all debts, duties and obligations imposed by the deed upon the grantor, including any expenses incurred preparatory to sale, then upon the grantor's request the trustee shall execute and deliver a good and sufficient deed of release at the grantor's own proper costs and charges.
2. That §§ 26-17.8 and 26-36.1 of the Code of Virginia are repealed.
3. That the amendments to §§ 26-12 and 26-12.1 shall become effective January 1, 1998.