Code of Virginia

Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
3/25/2019

Part A. Fiduciaries.

Chapter 12. Commissioners of Accounts.

§ 64.2-1200. Commissioners of accounts.

A. The judges of each circuit court shall appoint as many commissioners of accounts as may be necessary to carry out the duties of that office. The commissioner of accounts shall have general supervision of all fiduciaries admitted to qualify in the court or before the clerk of the circuit court and shall make all ex parte settlements of the fiduciaries' accounts. The person appointed as a commissioner of accounts shall be a discreet and competent attorney-at-law and shall be removable at the pleasure of the court.

B. In the event more than one commissioner of accounts is appointed, each commissioner of accounts shall maintain his own office and keep his own books, records, and accounts. Each commissioner of accounts shall retain the power of supervision over every account, matter, or thing referred to him until a final account is approved for such account, matter, or thing, unless he resigns, retires, or is removed from office, in which case his successor shall continue such duties.

C. For any given service performed, each commissioner of accounts shall have the authority to establish a lesser fee than that prescribed by the court or to waive one or more fees.

Code 1919, § 5401; 1946, p. 324; Code 1950, § 26-8; 1966, c. 329; 1973, c. 544; 2003, c. 194; 2005, c. 400; 2012, c. 614.

§ 64.2-1201. Appointment of assistant commissioners of accounts; duties and powers.

The judges of each circuit court may appoint, in addition to commissioners of accounts, assistant commissioners of accounts who shall perform all the duties and exercise all of the powers required of the commissioner of accounts in all cases in which the commissioner of accounts is so situated that he cannot perform the duties of his office or in which the commissioner of accounts is of the opinion that it is improper for him to act. Assistant commissioners of accounts may perform such duties and exercise such powers in any case except cases in which he is so situated that he cannot act or in which he is of the opinion it is improper for him to act. Assistant commissioners of accounts shall act only in such cases that the commissioner of accounts delegates to him. An assistant commissioner of accounts making a settlement of a fiduciary account under the provisions of this section shall, within 30 days, report the fact and date of the settlement to the commissioner of accounts, who shall make an entry of the settlement in his record books. The person appointed as an assistant commissioner of accounts shall be a discreet and competent attorney-at-law and shall be removable at the pleasure of the court.

Code 1919, § 5402; 1930, p. 86; Code 1950, § 26-10; 1966, c. 326; 1973, c. 544; 2001, c. 108; 2003, c. 194; 2012, c. 614.

§ 64.2-1202. Appointment of deputy commissioners of accounts in certain cities and counties; duties and powers.

In any city or county having a population in excess of 200,000, the commissioner of accounts, with the approval of the judges of the circuit court, may appoint a deputy commissioner of accounts who may discharge any of the official duties of the commissioner of accounts for such jurisdiction for so long as the commissioner of accounts continues to serve. The person appointed as a deputy commissioner of accounts shall be a discreet and competent attorney-at-law and shall be removable at the pleasure of the court.

Before entering upon the duties of his office, any deputy commissioner of accounts shall take and subscribe an oath similar to that provided for the commissioner of accounts. The oath shall be filed with the clerk of court and a record of the appointment and oath shall be entered in the order book of such court.

1954, c. 456, § 26-10.1; 1964, c. 458; 1966, c. 326; 1973, c. 544; 2003, c. 194; 2012, c. 614.

§ 64.2-1203. Subpoena powers of commissioners of accounts, assistants, and deputies; penalty.

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. Commissioners of accounts, assistants, and deputies 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. Commissioners of accounts, assistants, and deputies may certify to the circuit court the fact of a fiduciary's failure to inform the clerk or commissioners of his nonresident status and new address pursuant to § 64.2-1409. The court, upon a finding of a violation of § 64.2-1409, may impose a $50 civil penalty. Such penalties shall be paid to the state treasurer for deposit into the general fund.

1974, c. 126, § 26-8.1; 1997, c. 842; 2005, c. 644. 2012, c. 614.

§ 64.2-1204. Commissioners of accounts to examine and report on bonds and whether fiduciaries should be removed.

A. When any fiduciary, other than a sheriff or other officer, who is required to file an inventory or an account with the commissioner of accounts has made such a filing, the commissioner of accounts shall examine whether the fiduciary has given bond as the law requires and whether the penalty and surety stated in the bond are sufficient. At any time before a required filing is made by a fiduciary with the commissioner of accounts, upon the application of any interested person or the next friend of an interested infant, and after reasonable notice to the fiduciary, the commissioner of accounts for the circuit court wherein the fiduciary qualified shall investigate (i) the bond given and inquire whether security ought to be required of a fiduciary who may have been allowed to qualify without giving it and (ii) whether it is improper to permit the estate of the decedent, ward, or other person to remain under the fiduciary's control due to the incapacity or misconduct of the fiduciary, the removal of the fiduciary from the Commonwealth, or for any other cause. The commissioner of accounts shall report the result of every examination and inquiry to the court and to the clerk of court.

B. 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 of accounts 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.

Code 1919, § 5416; Code 1950, § 26-2; 1966, c. 340; 1974, c. 156; 1987, c. 489; 1997, c. 842; 2012, c. 614.

§ 64.2-1205. Commissioners of accounts to inspect and file inventories with clerks.

The commissioner shall inspect all inventories returned to him by fiduciaries and see that they are in proper form. Within 10 days after any inventory is received and approved by the commissioner of accounts, he shall deliver the inventory to the clerk of the circuit court to be recorded as required by law.

Code 1919, § 5403; 1932, p. 337; Code 1950, § 26-14; 2012, c. 614.

§ 64.2-1206. Settlement of fiduciaries' accounts.

Every fiduciary referred to in this part shall account before the commissioner of accounts of the jurisdiction wherein he qualified as provided in this part. Every account shall be signed by all fiduciaries. A statement in a separate document, signed by the fiduciary and attached to an account, that a fiduciary has received, read, and agrees with the account shall be treated as a signature to the account.

1993, c. 689, § 26-17.3; 1997, c. 842; 2012, c. 614.

§ 64.2-1207. Settlement for year to include unsettled portion of preceding year.

When a commissioner of accounts has the account of a fiduciary for any year before him for settlement, the settlement shall also include any time prior to such year for which the fiduciary has not settled.

Code 1919, § 5424; Code 1950, § 26-28; 2012, c. 614.

§ 64.2-1208. Expenses and commissions allowed fiduciaries.

A. In stating and settling the account, the commissioner of accounts shall allow the fiduciary any reasonable expenses incurred by him and, except in cases in which it is otherwise provided, a reasonable compensation in the form of a commission on receipts or otherwise. Unless otherwise provided by the court, any guardian appointed pursuant to Chapter 20 (§ 64.2-2000 et seq.) or Chapter 21 (§ 64.2-2100 et seq.) shall also be allowed reasonable compensation for his services. If a committee or other fiduciary renders services with regard to real estate owned by the ward or beneficiary, compensation may also be allowed for the services rendered with regard to the real estate and the income from or the value of such real estate.

B. Notwithstanding subsection A or any provision under Chapter 7 (§ 64.2-700 et seq.), where the compensation of an institutional fiduciary is specified under the terms of the trust or will by reference to a standard published fee schedule, the commissioner of accounts shall not reduce the compensation below the amount specified unless there is sufficient proof that (i) the settlor or testator was not competent when the trust instrument or will was executed or (ii) such compensation is excessive in light of the compensation institutional fiduciaries generally receive in similar situations.

Code 1919, § 5425; Code 1950, § 26-30; 1985, c. 402; 1997, c. 921; 2005, c. 935; 2011, c. 518; 2012, c. 614.

§ 64.2-1209. Who may insist or object before commissioner of accounts.

Any interested person, or the next friend of an interested person, may, before the commissioner of accounts, insist upon or object to anything which could be insisted upon or objected to by such interested person if the commissioner of accounts were acting under an order of a circuit court for the settlement of a fiduciary's accounts made in a suit to which such interested person was a party.

Code 1919, § 5424; Code 1950, § 26-29; 2005, c. 681; 2012, c. 614.

§ 64.2-1210. Accounts and debts and demands to be reported.

The commissioner of accounts shall report every account stated under this part, including a statement of the cash on hand and in bank accounts and the investments held by the fiduciary at the terminal date of the account, and, where applicable, reports of debts and demands under § 64.2-551, along with any matters specially stated deemed pertinent by the commissioner of accounts or that an interested person may require.

Code 1919, § 5426; 1936, p. 250; Code 1950, § 26-31; 1989, c. 492; 2012, c. 614.

§ 64.2-1211. Where filed; notice to certain parties.

The commissioner of accounts shall file the report in the office of the circuit court by which he is appointed as soon as practicable after its completion. On or before the date of filing a report on a personal representative's account, the commissioner of accounts shall send a copy of the report and any attachments, excluding the account, by first-class mail to every person who (i) was entitled to request a copy of the account pursuant to § 64.2-1303 and (ii) submits a written request therefor to the commissioner of accounts. The copy of the report of the commissioner of accounts shall be accompanied by a statement advising the recipient that the report will stand confirmed by law 15 days after the report is filed with the court in the absence of any objections being filed thereto.

Code 1919, § 5427; Code 1950, § 26-32; 1997, c. 842; 2001, c. 265; 2012, c. 614.

§ 64.2-1212. Exceptions to report; examination, correction, and confirmation.

A. If no exceptions have been filed, the report shall stand confirmed on the day next following the expiration of the period of 15 days after the day on which the report was filed in the clerk's office.

B. If exceptions have been filed, the circuit court, after 15 days from the time the report has been filed in its office, shall examine such exceptions that have been timely filed. The court shall correct any errors that appear on the exceptions and to this end may (i) commit the report to the same or another commissioner of accounts, as often as it sees cause, (ii) cause a jury to be empaneled to inquire into any matter that in its opinion should be ascertained in that way, or (iii) confirm the report in whole or in a qualified manner. The court shall certify in the order that it has made a personal examination of the exceptions.

Code 1919, § 5428; 1922, p. 873; 1928, p. 23; 1940, p. 614; 1944, p. 107; Code 1950, § 26-33; 1966, c. 335; 2012, c. 614.

§ 64.2-1213. Effect of confirmation of report.

The report, to the extent to which it is confirmed by an order of the circuit court upon exceptions filed pursuant to subsection B of § 64.2-1212 or in whole when confirmed by lapse of time without exceptions pursuant to subsection A of § 64.2-1212, shall be taken to be correct, except so far as it may, in a suit, in proper time, be surcharged or falsified. However, no person who was a party to exceptions filed to the report shall bring a suit to surcharge or falsify the report, and in such case the action of the court on the report shall be final as to such party, except that it may be appealed from as in other suits.

Code 1919, § 5429; 1932, p. 554; 1944, p. 107; Code 1950, § 26-34; 2012, c. 614.

§ 64.2-1214. Recordation of report.

The clerk shall record every report so confirmed, whether by order of the circuit court upon exceptions filed or by the lapse of the time without exceptions filed, and note at the foot of it the order of confirmation or the clerk's certificate that no exceptions were filed, as the case may be, in the will book or the book in which the fiduciary accounts in the clerk's office are recorded and index it according to the provisions of § 17.1-249.

Code 1919, § 5428; 1922, p. 873; 1928, p. 23; 1940, p. 614; 1944, p. 107; Code 1950, § 26-35; 2012, c. 614.

§ 64.2-1215. Power of commissioner of accounts to enforce the filing of inventories.

A. If any fiduciary fails to make the return required by § 64.2-1300, the commissioner of accounts shall issue, through the sheriff or other proper officer, a summons to the fiduciary requiring him to make such return. If the fiduciary fails to make the required return within 30 days after the date of service of the summons, the commissioner of accounts shall report the fact to the circuit court. The court shall immediately issue a summons to the fiduciary requiring him to appear and shall, upon his appearance, assess a fine against the fiduciary in an amount not to exceed $500 unless excused for sufficient reason. If, after his appearance before the court, the fiduciary continues to fail to make the required return within such time as the court may prescribe, the fiduciary shall be punished for contempt of court.

B. Whenever the commissioner of accounts 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 return within 30 days after the date of service of a summons, the commissioner of accounts shall also mail a copy of his report to the Virginia State Bar.

Code 1919, § 5403; 1932, p. 337; Code 1950, § 26-13; 1956, c. 159; 2003, c. 193; 2012, c. 614.

§ 64.2-1216. Failure to account; enforcement.

A. If any fiduciary required to account fails to make a complete and proper account within the time allowed, the commissioner of accounts shall either (i) proceed against the fiduciary in accordance with the procedures set forth in § 64.2-1215 or (ii) file with the circuit court and the clerk at such times as the court shall order, but not less than twice a year, a list of all fiduciaries who have failed to make a complete and proper account within the time allowed, excepting those fiduciaries to whom the commissioner of accounts has granted additional time. Upon the filing of this list, the clerk shall issue a summons against each fiduciary on the list, returnable to the first day of the next term of court, and the court shall take action against the fiduciary in accordance with the procedures set forth in § 64.2-1215.

B. Every commissioner of accounts shall file with the court and the clerk at such times as the court shall order, but not less than quarterly, a list of all fiduciaries whose accounts for any reason have been before the commissioner of accounts for more than five months. The commissioner of accounts shall note on the list the fiduciaries who are deemed delinquent.

C. Whenever the commissioner of accounts 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 30 days after the date of service of a summons, the commissioner of accounts shall also mail a copy of his report to the Virginia State Bar.

Code 1919, § 5408; 1936, p. 250; 1946, p. 325; Code 1950, § 26-18; 1995, c. 653; 1997, c. 842; 1999, c. 378; 2012, c. 614.

§ 64.2-1217. Forfeiture of fiduciary's commission.

If a fiduciary wholly fails to file an account before the commissioner of accounts containing a statement of all matters required in § 64.2-1206, together with all other statements and items therein required for any year, within four months after the year's expiration or, though the fiduciary files an account before the commissioner of accounts, if the commissioner of accounts finds the fiduciary is chargeable for that year with any money or other property not included in the statement, the fiduciary shall receive no compensation for his services during such year or any commission on such money or other property unless allowed by the commissioner of accounts for good cause shown. The circuit court shall review the commissioner of accounts' action in such case upon the filing of timely exceptions by any interested person. This section shall not apply to a fiduciary who has filed a statement of his accounts within such year before a commissioner in chancery who in a pending suit has been ordered to settle his account.

Code 1919, § 5409; 1946, p. 326; Code 1950, § 26-19; 1999, c. 378; 2012, c. 614.

§ 64.2-1218. When fiduciaries personally liable for costs.

The costs of all proceedings against a fiduciary who fails without good cause to make the returns and exhibits required shall be paid by him personally, and he shall receive no allowance for the costs in the settlement of his accounts.

Code 1919, § 5413; Code 1950, § 26-23; 2012, c. 614.

§ 64.2-1219. Fees of commissioners of accounts.

Except as otherwise provided, the circuit court appointing a commissioner of accounts shall prescribe the fees of such commissioner of accounts.

Code 1919, § 5414; 1938, p. 141; Code 1950, § 26-24; 1997, cc. 214, 842; 2012, c. 614.

§ 64.2-1220. Receipt for vouchers filed in settlement; effect thereof.

Any commissioner of accounts having before him the accounts of a fiduciary for settlement shall, on request, execute and deliver to the fiduciary a receipt for all vouchers filed with the commissioner of accounts. The receipt, if such vouchers are subsequently lost or destroyed, shall be evidence of the delivery to the commissioner of accounts of the vouchers mentioned in the receipt in any suit or proceeding against the fiduciary.

Code 1919, § 5415; Code 1950, § 26-26; 2012, c. 614.

§ 64.2-1221. Report on fiduciaries' bonds; "record of fiduciaries.".

A. The clerk of each circuit court shall furnish to the commissioner of accounts at the end of each month a list of the fiduciaries authorized to act as such under orders entered during that month and shall examine whether each fiduciary has given such bond as the law requires. If it appears that the fiduciary has given no bond or that his bond is defective, the clerk shall immediately report this fact to the circuit court.

B. The commissioner of accounts shall keep a book or other proper record called the "record of fiduciaries," in which the following shall be entered in separate columns:

1. The name of every fiduciary;

2. The name of the decedent whose estate the fiduciary represents or the name of the living person for whom he is acting in fiduciary capacity;

3. The penalty of his bond;

4. The names of his sureties;

5. The date of the order conferring his authority;

6. The date of any order revoking his authority;

7. The date of the return of every inventory of the estate; and

8. The date of each settlement of the accounts of the fiduciary.

The commissioner of accounts shall index the record of fiduciaries in the name of the decedent or person represented by the fiduciary.

C. The clerk shall certify to the commissioner of accounts the revocation of the authority of any fiduciary within 10 days of the revocation.

D. Any commissioner failing to make entries pursuant to subsection B or any clerk failing to certify the revocation of a fiduciary's authority pursuant to subsection C shall forfeit $20 for every such failure.

Code 1919, § 5401; 1946, p. 324; Code 1950, § 26-9; 1956, c. 59; 1973, c. 544; 2012, c. 614.

§ 64.2-1222. Commissioners of accounts to post list of fiduciaries whose accounts are before them for settlement.

Every commissioner of accounts shall, on the first day of the term of the circuit court that appointed him, or during the first week of each month, post at the front door of the courthouse of the circuit court a list of the fiduciaries whose accounts are before him for settlement. The list shall contain (i) the names of the fiduciaries; (ii) the nature of their accounts, whether as a personal representative, guardian, conservator, curator, committee, or trustee; and (iii) the name of their decedents or of the persons for whom they are guardians, conservators, curators, or committees or under whose deed or other trust instrument they are acting. The commissioner of accounts shall not settle and approve the account of any fiduciary until 10 days after posting the list containing the name of the fiduciary as provided by this section.

Code 1919, § 5423; 1924, p. 9; Code 1950, § 26-27; 1966, c. 324; 1991, c. 147; 1997, c. 801; 2012, c. 614.

Chapter 13. Inventories and Accounts.

§ 64.2-1300. Inventories to be filed with commissioners of accounts.

A. Every personal representative or curator shall, within four months after the date of the order conferring his authority, return to the commissioner of accounts an inventory of all the personal estate 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 that is an asset of the decedent's estate, whether or not situated in the Commonwealth. Every personal representative or curator shall also return to the commissioner of accounts an inventory of any such assets discovered thereafter as provided in subsection E.

B. Every guardian of an estate, conservator, 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 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 of an estate, conservator, or committee shall also return to the commissioner of accounts an inventory of any such assets discovered thereafter as provided in subsection E.

C. Every trustee who qualifies in the circuit court clerk's office shall, within four months after the first date that any assets are received, return to the commissioner of accounts an inventory of the real and personal estate which is under the trustee's supervision and control. Every such trustee shall also return to the commissioner of accounts an inventory of any such assets received thereafter as provided in subsection E. However, any trustee who is not required to account under the provisions of § 64.2-1307 shall be exempted from the duty to file an inventory for as long as there remains no duty to file annual accounts with the commissioner of accounts.

D. In listing property pursuant to subsection A, B, or C, the fiduciary shall place the market value on each item. The market value shall be determined as of (i) the date of death if a decedent's estate; (ii) the date assets are received by the trustee if a trust; or (iii) the date of qualification in all other cases. Any reasonable expense incurred in determining such values shall be allowable as a cost of the administration of the estate.

E. In the case of assets discovered or received by a fiduciary after filing an inventory, the further inventory required by subsections A, B, and C may be made by filing an amended inventory showing all assets of the estate or trust, 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 or trust's next regular accounting. The filing shall be made or the permission granted within four months after the discovery or receipt of the assets.

Code 1919, § 5403, § 26-12; 1932, p. 337; Code 1950, § 26-12; 1966, c. 337; 1973, c. 544; 1993, c. 581; 1997, c. 842; 1998, c. 610; 2001, c. 73; 2012, c. 614.

§ 64.2-1301. When inventory and settlement not required.

An inventory under § 64.2-1300 or a settlement under § 64.2-1206 shall not be required of a personal representative who qualifies for the sole purpose of bringing an action under § 8.01-50. However, if there is no surviving relative designated as a beneficiary under § 8.01-53 and the circuit court directs that the funds recovered in such action be paid to the personal representative for distribution according to law, the personal representative shall file the inventory required in § 64.2-1300 and the statement required under § 64.2-1206.

1966, c. 338, § 26-12.2; 2012, c. 614.

§ 64.2-1302. Waiver of inventory and settlement for certain estates.

When a decedent's personal estate passing by testate or intestate succession does not exceed $25,000 in value and an heir, beneficiary, or creditor whose claim exceeds the value of the estate seeks qualification, the clerk of the circuit court shall waive the inventory under § 64.2-1300 and the settlement under § 64.2-1206. This section shall not apply if the decedent died owning any real estate over which the person seeking qualification would have the power of sale.

1980, c. 563, § 26-12.3; 1987, c. 605; 1989, c. 387; 1998, c. 117; 2001, c. 598; 2002, cc. 220, 227; 2012, c. 614; 2014, c. 532.

§ 64.2-1303. Copies of inventories and accounts to be provided by personal representatives.

A. Every personal representative filing with the commissioner of accounts an inventory or account, including an affidavit of intent to file a statement in lieu of an account pursuant to § 64.2-1314, or any document making changes to either, shall, on or before the date of such filing, send a copy thereof by first-class mail to those persons to whom notice was given pursuant to subsections A and B of § 64.2-508 and who requested the same from the personal representative in writing. Copies sent pursuant to this subsection need not include copies of any supporting vouchers and such copies need not be given to (i) persons who would take only as heirs at law in a case where all of the decedent's probate estate is disposed of by will or (ii) beneficiaries whose gifts have been satisfied in full prior to such filing. A request for copies may be made to a personal representative at any time. The request may relate to one specific filing or to all filings to be made by the personal representative but it is not effective for filings made prior to its receipt by a personal representative.

B. No commissioner of accounts shall approve any personal representative's inventory or account (i) until 21 days have elapsed from the receipt of such inventory or account and (ii) unless the inventory or account contains a statement that any copies requested pursuant to this section have been mailed and shows the names and addresses of the persons to whom they were mailed and the date of such mailing.

2001, c. 265, § 26-12.4; 2012, c. 614.

§ 64.2-1304. Personal representatives.

A. Within 16 months from the date of the qualification, personal representatives shall exhibit before the commissioner of accounts a statement of all money and other property that the fiduciary has received, has become chargeable with, or has disbursed within 12 months from the date of qualification.

B. After the first account of the fiduciary has been filed and settled, the second and subsequent accounts for each succeeding 12-month period shall be due within four months from the last day of the 12-month period commencing on the terminal date of the preceding account unless the commissioner of accounts extends the period for filing upon reasonable cause.

C. Notwithstanding subsections A and B, a personal representative may file a first or subsequent account at an earlier date, and the commissioner of accounts or the circuit court may require the personal representative to file a first or subsequent account at an earlier date upon reasonable cause shown.

1993, c. 689, § 26-17.5; 2012, c. 614.

§ 64.2-1305. Conservators, guardians of minors' estates, committees, trustees under § 64.2-2016, and receivers.

A. Within six months from the date of the qualification, conservators, guardians of minors' estates, committees, and trustees under § 64.2-2016 shall exhibit before the commissioner of accounts a statement of all money and other property that the fiduciary has received, has become chargeable with, or has disbursed within four months from the date of qualification.

B. After the first account of the fiduciary has been filed and settled, the second and subsequent accounts for each succeeding 12-month period shall be due within four months from the last day of the 12-month period commencing on the terminal date of the preceding account unless the commissioner of accounts extends the period for filing upon reasonable cause.

C. For fiduciaries acting on behalf of Medicaid recipients, the fees charged by the commissioners of accounts under subsection A or B shall not exceed $25.

1993, c. 689, § 26-17.4; 1997, cc. 214, 921; 1999, cc. 16, 378; 2012, c. 614.

§ 64.2-1306. Testamentary trustees.

A. Except as provided in subsections B and C, testamentary trustees shall exhibit a statement of all money and other property that the fiduciary has received, has become chargeable with, or has disbursed for each calendar year before the commissioner of accounts of the circuit court where the order conferring his authority was entered on an annual basis commencing on or before May 1 of the calendar year following initial funding of the trust. Accounts for each calendar year thereafter shall be filed on or before May 1 of the following calendar year.

B. All testamentary trustees who qualify prior to July 1, 1993, and elect to file accounts on a fiscal year basis may continue to file such accounts on an annual basis within four months after the end of the fiscal year selected.

C. Accountings for trusts where one of the trustees is a corporation qualified under § 6.2-803, and by other testamentary trustees permitted by the Internal Revenue Code to file income tax returns on a fiscal year, may be filed on the basis of the trust fiscal year. The first account shall be filed within 16 months of the date on which the trust was initially funded.

1993, c. 689, § 26-17.6; 2012, c. 614.

§ 64.2-1307. Testamentary trustees under a will waiving accounts; waiver where beneficiary also trustee.

A. For purposes of this section, the term "sole beneficiary" means a person who is (i) the only income beneficiary who is entitled to the principal, or the remaining principal goes to the trustee's estate or (ii) the only income beneficiary and has either a general power of appointment over the principal or has a special power of appointment that is not limited to a particular class of persons.

B. If (i) the will of a decedent probated on or after July 1, 1993, contains a waiver of the obligations of the testamentary trustee nominated therein to account or (ii) the sole beneficiary of the trust also is a trustee, the trustee will not be required to file accounts with the commissioner of accounts.

Where the waiver is contained in the decedent's will, the trustee shall within 90 days after qualification notify in writing all beneficiaries of the trust, other than the trustee, who are adults, whose addresses are known to the trustee, and to whom income or principal of the trust could be currently distributed; provide each such beneficiary with a copy of the applicable provisions of the will; advise each such beneficiary of his right to require an annual accounting; and provide each such beneficiary with a copy of this section and annually thereafter provide each such beneficiary an accounting upon request. The trustee shall send to the commissioner of accounts a copy of the notice given to each beneficiary or, in the alternative, file a writing with the commissioner of accounts stating that the requirements of this section have been met. For receiving and filing such notice or writing, the commissioner of accounts shall be allowed a fee not to exceed $25.

C. Language substantially in form and effect as follows shall be sufficient to constitute a waiver in the will of the decedent of the trustee's obligation to account: "I hereby direct that my trustee(s) shall not be required to file annual accounts with a court as otherwise required by Virginia law."

D. Notwithstanding a waiver in the will of the decedent or any prior consent of a beneficiary, any such adult beneficiary may, at any time during the administration of the trust, demand in a writing delivered to the trustee and to the commissioner of accounts that the trustee settle annually with the commissioner of accounts. Upon notice of such demand to the trustee and the commissioner of accounts, such trustee shall file an account with the commissioner of accounts for a period acceptable to the commissioner of accounts as though there were no waiver by the testator. The beneficiary making such demand may later revoke his demand by a writing delivered to the trustee and the commissioner of accounts. The demand for settlement of the trustee's account before the commissioner of accounts may also be made by the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian of an incapacitated beneficiary, a committee of a convict or insane beneficiary, the duly qualified guardian of a minor, or if none exists, a custodial parent of a minor or by any minor who has attained 14 years of age.

E. Notwithstanding the provisions of this section, any trustee under a will of a decedent containing the requisite waiver, whenever probated, shall be relieved of the duty to file an inventory or annual accounts with the commissioner of accounts if the trustee (i) obtains the written consent of all adult beneficiaries, other than the trustee, to whom income or principal of the trust could be currently distributed, after providing those beneficiaries with the documents and information specified in subsection B, and (ii) files those consents with the commissioner of accounts on or before the date on which the inventory or next required accounting would otherwise be due. For receiving and filing such written consent, the commissioner of accounts shall be allowed a fee not to exceed $25.

F. Notwithstanding the provisions of this section, any trustee under a will of a decedent probated on or after July 1, 2010, shall be relieved of the duty to file an inventory or annual accounts with the commissioner of accounts if the will of the decedent does not direct the filing of such inventory or accounts and the trustee (i) obtains the written consent of all adult beneficiaries, other than the trustee, to whom income or principal of the trust could be currently distributed, after providing those beneficiaries with the documents and information specified in subsection B; (ii) obtains the written consent of the representatives of all incapacitated beneficiaries, other than the trustee, to whom income or principal of the trust could be currently distributed, after providing those representatives with the documents and information specified in subsection B; and (iii) files those consents with the commissioner of accounts on or before the date on which the inventory or next required accounting would otherwise be due. For receiving and filing such written consent, the commissioner of accounts shall be allowed a fee not to exceed $25. The consent of an incapacitated beneficiary may be made by the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian of an incapacitated beneficiary, a committee of a convict or insane beneficiary, the duly qualified guardian of a minor, or if none exists, a custodial parent of a minor who is not also the trustee. Language substantially in form and effect as follows shall be sufficient to constitute a direction in the will of the decedent of the trustee's obligation to account: "I hereby direct that my trustee(s) shall be required to file annual accounts with a court as otherwise required by Virginia law."

G. A circuit court having jurisdiction may order the filing of annual accounts if it deems such filings to be in the best interests of one or more beneficiaries of the trust.

1993, c. 689, § 26-17.7; 2001, c. 73; 2005, c. 821; 2010, cc. 197, 651; 2012, c. 614.

§ 64.2-1308. Forms for inventories and accounts.

The Office of the Executive Secretary of the Supreme Court shall provide to each circuit court clerk forms and instructions for the inventories required by § 64.2-1300 and forms and instructions for accounts. The clerk shall provide the appropriate forms to every fiduciary who qualifies in the clerk's office. An inventory filed pursuant to § 64.2-1300 or an account filed pursuant to § 64.2-1206 may be made on the form provided to the fiduciary by the clerk of the court, on a computer-generated facsimile of the appropriate form, or in any other clear format.

1966, c. 336, §§ 26-12.1, 26-17.3; 1972, c. 411; 1993, cc. 581, 689, § 26-17.3; 1997, c. 842; 2012, c. 614.

§ 64.2-1309. Accounts of sales under deeds of trust.

A. Within six months after the date of a sale made under any recorded deed of trust, mortgage, or assignment for benefit of creditors, other than under a decree, the trustee shall return an account of the sale to the commissioner of accounts of the circuit court where the instrument was first recorded. After recording any trustee's deed, the trustee shall promptly deliver to the commissioner of accounts a copy of the deed. 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 of accounts shall state, settle, and report to the court an account of the transactions of the trustee, which 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.

B. If the commissioner of accounts of the court where an instrument was first recorded becomes aware that an account as required by this section has not been filed, the commissioner of accounts and the court shall proceed against the trustee and impose penalties in the same manner as set forth in § 64.2-1215, unless the trustee is excused for sufficient reason. If after a deed of trust is given on land located in a county, and before a sale under the deed of trust, 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.

C. Whenever the commissioner of accounts 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 return within 30 days after the date of service of a summons, the commissioner of accounts shall also mail a copy of his report to the Virginia State Bar.

Code 1919, § 5404; 1946, p. 325; Code 1950, § 26-15; 1966, c. 333; 1980, c. 148; 1996, c. 681; 1997, c. 842; 1998, c. 610; 2003, c. 193; 2012, c. 614.

§ 64.2-1310. Recordation of inventories and accounts of sales.

Every inventory and account of sales returned under §§ 64.2-1300 and 64.2-1309 shall be recorded by the clerk in the will book and indexed as required by § 17.1-223.

Code 1919, § 5405; Code 1950, § 26-16; 2012, c. 614.

§ 64.2-1311. Vouchers and statement of assets on hand; direct payments to account; vouchers for IRS payments.

A. Vouchers for disbursements and a statement of cash on hand or in a bank and all investments held at the terminal date of the account shall also be exhibited with each account. A voucher shall not be required when a disbursement, not exceeding the value of $50, is made to a legatee under the authority of a will and such legatee refuses to take the possession or fails to present the disbursement check to a bank for payment. In such case the fiduciary shall file an affidavit stating that he has made a good faith effort to comply with the terms of the will and the provisions of this section.

B. A fiduciary may make payment to a beneficiary by transfer to the beneficiary's bank account with the fiduciary or by payment to an account with another bank through an automated clearinghouse, wire transfer, or similar mechanism, if the beneficiary has consented in writing to such method of payment. In either case, a record or statement of the bank making such payment shall be a sufficient voucher for the purpose of subsection A.

C. In the case of payments to the Internal Revenue Service for income tax estimates or any other payments required or permitted to be made by wire transfer or similar mechanism, a record or statement of the bank making such payment shall be a sufficient voucher for the purpose of subsection A.

D. In the case of payments of debts, taxes, and expenses, a corporate fiduciary's affidavit signed by an officer familiar with the facts that describes each payment by date, payee, purpose, and amount shall be a sufficient voucher for the purpose of subsection A. However, the commissioner of accounts may require that the corporate fiduciary exhibit a voucher for a specific payment.

E. In the event a fiduciary seeks to use a check as a voucher or receipt under this section, (i) a copy of both sides of the check shall be sufficient or (ii) a copy of the front side of the check and the periodic statement from the financial institution showing the check number and amount that coincides with the copy shall be sufficient, provided that (a) the copy was made in the regular course of business in accordance with the admissibility requirements of § 8.01-391 and (b) the commissioner of accounts may require a fiduciary to exhibit a proper voucher for a specific payment or for distributions to beneficiaries or distributees. However, the commissioner of accounts shall not require a fiduciary to exhibit an original check as a voucher under this subsection.

1993, c. 689, § 26-17.9; 1999, c. 74; 2003, c. 201; 2005, cc. 261, 277; 2012, c. 614; 2014, c. 532.

§ 64.2-1312. Report to circuit court; death of fiduciary; fiduciary for recipient of federal benefits.

A. The commissioner of accounts shall state, settle, and report to the circuit court an account of the transactions of a fiduciary, as provided by law. Every fiduciary shall also, at the request of the commissioner of accounts, exhibit (i) the securities held by the fiduciary together with a statement from every bank in which cash is held at the terminal date of the account and (ii) proof that all premiums due upon any required surety bond have been paid.

B. If a personal representative of a decedent's estate, a testamentary trustee, a guardian, a conservator, or a committee dies prior to the filing and settlement of the fiduciary's account, the personal representative of the fiduciary's estate shall have the obligation to make the requisite filing and settlement through the date of death unless any successor fiduciary makes the requisite filing.

C. For fiduciaries acting on behalf of a recipient of social security, supplemental security income, or veteran's or other federal benefits, no accounting to the commissioner of accounts shall be required of benefits paid to a designated representative on behalf of the recipient if the representative is otherwise required to account for such benefits. However, any fiduciary otherwise required to make an accounting to the commissioner of accounts shall disclose in the account the total amount of such benefits received during the accounting period for which no incremental fee for such benefits shall be charged by the commissioner of accounts.

1993, c. 689, § 26-17.10; 1997, c. 801; 1999, c. 108; 2000, c. 324; 2012, c. 614.

§ 64.2-1313. Exhibition of accounts when sum does not exceed certain amount.

If the principal sum held by any fiduciary mentioned in § 64.2-1206 does not exceed $25,000, the fiduciary shall exhibit his accounts before the commissioner of accounts within the appropriate time period provided in §§ 64.2-1305, 64.2-1306, and 64.2-1307. Thereafter, the commissioner of accounts may permit the fiduciary to exhibit his accounts every three years, which permission may be revoked by the commissioner of accounts on his own motion or upon request of any interested person. The provisions of this section shall apply to any case in which the corpus of the estate in the hands of the fiduciary has been reduced to $25,000 or less although it formerly exceeded that amount. Any fiduciary exhibiting his accounts in accordance with the provisions of this section shall be entitled to compensation for his services.

1934, p. 80; Michie Code 1942, § 5409a; 1946, p. 326; Code 1950, § 26-20; 1962, c. 148; 1976, c. 435; 1999, c. 378; 2002, cc. 220, 227; 2003, c. 193; 2012, c. 614; 2014, c. 532.

§ 64.2-1314. Statement in lieu of settlement of accounts by personal representatives in certain circumstances.

A. For the purposes of this section, the term "residuary beneficiary" shall not include the trustee of a trust that receives a residuary gift under a decedent's will.

B. If all distributees of a decedent's estate or all residuary beneficiaries under a decedent's will are personal representatives of that decedent's estate, whether serving alone or with others who are not distributees or residuary beneficiaries, the personal representatives may, in lieu of the settlement of accounts required by § 64.2-1304, file with the commissioner of accounts a statement under oath that (i) all known charges against the estate have been paid, (ii) six months have elapsed since the personal representatives qualified in the clerk's office, and (iii) the residue of the estate has been delivered to the distributees or beneficiaries. In the case of a residuary beneficiary, the statement shall include an itemized listing, substantiated and accompanied by proper vouchers, showing satisfaction of all other bequests in the will. The statement shall be considered an account stated and subject to all the provisions of this chapter applicable to accounts stated.

C. If the statement authorized by this section cannot be filed with the commissioner of accounts within the time prescribed by § 64.2-1304, the personal representatives, within that time, shall file either (i) an interim account or (ii) a written notice under oath that the personal representatives intend to file a statement in lieu of the settlement of accounts when all requirements of this section have been met, which shall include an explanation of why such a statement cannot presently be filed. Second and subsequent interim accounts or notices of intent to file shall be filed annually until the statement in lieu of the settlement of accounts is filed. A commissioner of accounts who determines that the reasons offered for not presently filing a statement in lieu of settlement are not sufficient, whether in a first or subsequent written notice, may require the personal representatives to file an interim account in addition to the notice. The filing of an interim account shall not preclude the filing of a subsequent statement.

1960, c. 428, § 26-20.1; 1972, c. 326; 1975, c. 192; 1980, c. 199; 1981, c. 113; 1983, c. 328; 1984, c. 309; 1993, c. 525; 1998, c. 610; 2001, c. 107; 2012, c. 614; 2017, c. 638.

§ 64.2-1315. Certification and recording of accounts settled in a judicial proceeding.

When the account of any fiduciary is settled in a judicial proceeding, it shall be the duty of the clerk of the circuit court in which the judicial proceeding was held, as soon as may be practicable after entry of a final order, to certify to the clerk of the circuit court in which the fiduciary qualified a copy of the account so far as the account has been confirmed, with a memorandum at the foot of the copy stating the style of the suit and the date of the final order. The account and memorandum so certified shall be recorded by the clerk to whom it is certified in the book in which accounts of fiduciaries are required to be recorded under § 64.2-1214. If in a proceeding subsequent to the entry of the final order, the account is reformed or altered, a copy of such reformed or altered account shall be certified and recorded, together with a memorandum stating the style of the suit and the date of the order or decree of confirmation, in the same manner as the final order. When the judicial proceeding is conducted in the same court in which the fiduciary qualified, the clerk of such court shall make the memoranda and recordations required by this section, and shall for such purpose use the original papers. For making any copy under this section, the clerk shall be entitled to the fees prescribed in like cases, and for recording such account of the fiduciary he shall be entitled to the fees allowed for recording accounts settled ex parte. The fees for copying and recording shall be paid as the court in which the judicial proceeding was held shall direct.

Code 1919, § 5411; Code 1950, § 26-21; 2005, c. 681; 2012, c. 614.

§ 64.2-1316. Settlement of fiduciary's accounts by commissioner in chancery; report to commissioner of accounts.

On the motion of any fiduciary having charge of an estate or any interested person, the circuit court may require a commissioner in chancery to settle the accounts of the fiduciary. In addition, a court may require a commissioner in chancery to settle the accounts of any of the fiduciaries mentioned in this chapter. A commissioner in chancery making a settlement under such order of a court shall report the fact and date of the settlement to the commissioner of accounts within 30 days, who shall make an entry of the same in his record book.

Code 1919, § 5415; Code 1950, § 26-25; 2012, c. 614.

§ 64.2-1317. Disposition of papers relating to estates.

A. The circuit court or the clerk at the time of the confirmation of an account shall return all inventories and original accounts of sales filed with the clerk of the circuit court as required by §§ 64.2-1205 and 64.2-1310, all reports filed with the clerk under § 64.2-1214 when the reports have been actually recorded by the clerk, compared, indexed, and confirmed as required by law, and all vouchers or other evidence filed with the commissioner of accounts upon request made at the time of such filing, or in the discretion of the commissioner of accounts if no request is made, to the fiduciary or other person who filed such inventories, accounts, reports, vouchers, or other evidence, provided, however, that such inventories, accounts, reports, vouchers, or other evidence is not required as evidence of any further matter of inquiry pending before the court or the commissioner of accounts.

B. The clerk of court may destroy any papers mentioned in subsection A or any other papers relating to estates, when the matter concerned has been closed with a final settlement for more than three years and appropriate recordations have been made. However, nothing in this section shall apply to original documents recorded by binding. If recordation is done by facsimile or microfilm reproduction process, such papers may be destroyed if the return of such papers was not requested at the time of filing for recordation.

C. The commissioner of accounts may destroy any papers mentioned in subsection A or any other papers relating to estates when the matter concerned has been closed with a confirmed final accounting for more than one year.

Code 1919, § 5428; 1922, p. 873; 1928, p. 24; 1940, p. 614; 1944, p. 107; 1950, p. 818, § 26-37; 1962, c. 111; 1977, c. 96; 1997, c. 842; 2012, c. 614.

Chapter 14. Fiduciaries Generally.

Article 1. Appointment, Qualification, Resignation, and Removal of Fiduciaries.

§ 64.2-1400. Authority to qualify trustee; necessity for security; notice of qualification; qualification by less than all of trustees named.

A. Subject to the provisions of § 64.2-1406, the clerk of any circuit court or any duly qualified deputy of such clerk may qualify any trustee named in a will, deed, or other writing, and require and take from them the necessary bonds in the same manner and with like effect as the court.

B. Pursuant to the provisions of § 64.2-1426, the clerk or deputy may appoint and qualify an individual or a corporation authorized under § 6.2-803 as trustee. Such appointment may be made in the same manner and subject to the provisions of § 64.2-500.

C. The clerk shall not require security from a trustee if the will, deed, or other writing directs that a trustee shall not give security, unless, based on the application of any interested person or on the clerk's own knowledge, the clerk determines that security ought to be required. This section shall not be construed to require security where security is not required pursuant to § 6.2-1003 or 64.2-1401 or to affect the jurisdiction of the court to qualify trustees and to require security or not, as the court sees fit.

D. Qualification of a trustee under this section may be ex parte, and no prior notice to the beneficiaries of the qualification shall be required. If less than all the trustees named in the deed, will, or other writing desire to qualify, then the trustee shall only be qualified after reasonable notice is given to any other named trustees.

E. If less than all the trustees named in the will, deed, or other writing qualify, then the trust powers conferred by the trust instrument shall be exercisable only by the trustees who have qualified under this section or in any other manner permitted by law.

1964, c. 464, § 26-46.1; 1977, c. 256; 1981, c. 239; 1997, c. 220; 2012, c. 614.

§ 64.2-1401. Jurisdiction for qualification of testamentary trustee; qualification and bond; when surety not required.

A. In the case of a testamentary trust, the jurisdiction where the will has been admitted to probate in the Commonwealth shall be the exclusive jurisdiction for the qualification of the trustee under such will. In the case of a will of a nonresident that has not been admitted to probate in the Commonwealth, the trustee under such will shall be permitted to qualify in any jurisdiction in which such will could be probated or, if there is no such jurisdiction, then the trustee shall be permitted to qualify pursuant to § 64.2-1402.

B. Before proceeding to act as trustee, the trustee named in a will probated after July 1, 1968, shall qualify and give bond before the proper circuit court or clerk with surety as may be required by the court or clerk unless (i) the will waives surety on the bond, (ii) surety is not required under § 6.2-1003, or (iii) the will was executed prior to July 1, 1968, and the trustee offering to qualify as such was also named in the will as executor and qualifies as such, and the will waives surety upon the bond of such executor.

C. The provisions hereof shall not apply to a testamentary devise or bequest to a church or its trustees.

D. If real estate located in the Commonwealth constitutes any of the trust assets, the qualification of the trustee under this section shall not be in lieu of any other recordation required by law.

1964, c. 464, §§ 26-46.2, 26-46.3; 1966, c. 327; 1968, c. 514; 1981, c. 239, 2012, c. 614.

§ 64.2-1402. Jurisdiction for qualification of certain testamentary trustees and trustees generally.

A. In the case of a testamentary trust for which there is no jurisdiction for probate as provided in § 64.2-1401 and in the case of any trust under any deed or other writing, other than a will, the trustee may qualify in any jurisdiction where the trustee resides, or if one trustee is a corporate trustee, then in the jurisdiction where the corporate trustee has its registered office.

B. If real estate located in the Commonwealth constitutes any of the trust assets, the qualification of the trustee under this section shall not be in lieu of any other recordation required by law.

1964, c. 464, § 26-46.3; 2012, c. 614.

§ 64.2-1403. Qualification of trustees.

A. For the purposes of this section, the phrase "deed or other writing" does not include a will.

B. Any trustee appointed by a deed or other writing where the deed or other writing requires that the trustee qualify shall not act as trustee until he has qualified before the circuit court or clerk by giving bond and taking oath that he will perform the duties of his office. The oath may be taken on behalf of a corporate trustee by its president or other officer.

C. Any trustee appointed by a deed or other writing where the deed or other writing does not require that the trustee qualify may voluntarily qualify. However, regardless of whether the deed or other writing does not require qualification, upon the request of any interested party, the administration of the trust shall be in the same manner as if qualification had been required by the terms of the deed or other writing creating it.

1968, c. 382, § 26-1.1; 2012, c. 614.

§ 64.2-1404. New fiduciary appointed when authority of former revoked.

If an order revoking and annulling the powers of any fiduciary is entered, the circuit court in which he qualified shall, at or after the date of the order, appoint an administrator de bonis non, a new guardian, or other fiduciary as if the fiduciary whose powers have been revoked and annulled had died at that date.

Code 1919, § 5148; Code 1950, § 26-47; 2012, c. 614.

§ 64.2-1405. Court may appoint trustee in place of one named in will, deed, or other writing; management by corporate trustee outside of the Commonwealth.

A. If a trustee named in a will, deed, or other writing (i) dies, (ii) becomes incapable of executing the trust on account of physical or mental disability or confinement in prison, (iii) if residency is statutorily required, is no longer a resident of the Commonwealth, (iv) declines to accept the trust, (v) resigns the trust after having accepted the trust, (vi) in the case of a corporate trustee, is adjudicated bankrupt or for any reason loses its charter, (vii) for any other reason ceases to be eligible to continue serving as trustee, or (viii) for any other good cause shown, the circuit court in which such will was admitted to probate or such deed or other writing is or might have been recorded, or if the trustee is a corporation, in which its principal office in the Commonwealth is located, or in which the trustee resides, may on motion of any interested party, and upon satisfactory evidence of any of the conditions in clauses (i) through (viii), appoint a trustee in place of the trustee named in the instrument.

B. The circuit court may appoint a substitute corporate trustee whenever a corporate trustee removes the management function over an existing trust which was previously managed in the Commonwealth to a jurisdiction outside of the Commonwealth if the court finds that the management of the trust after such removal results in good cause for the substitution of the trustee. A corporate trustee that maintains a place of business in the Commonwealth where one or more trust officers are available on a regular basis for personal contact with trust customers or beneficiaries shall not be deemed to have removed such management function.

Code 1919, § 6298; 1930, p. 350; 1934, p. 162; 1950, p. 457, § 26-48; 1998, cc. 392, 410; 2012, c. 614.

§ 64.2-1406. Notice required; certain substitutions validated.

A. Reasonable notice of a motion made pursuant to § 64.2-1405 for the appointment of a substitute trustee shall be provided to all persons interested in the execution of the trust other than the moving party. If any interested person is under 18 years of age, the circuit court or clerk shall appoint a discreet and competent attorney-at-law as guardian ad litem for such person on whom notice may be served. If any interested person is incapacitated or incarcerated, the notice shall be served on his committee, guardian, or conservator, if any, or if none exists, the court or clerk shall appoint a discreet and competent attorney-at-law as a guardian ad litem for such person on whom notice may be served. Notice does not need to be given to a trustee or, if one has previously been appointed, a substitute trustee who no longer resides the Commonwealth, declined to accept the trust, or resigned, or to the personal representative of a deceased trustee, or to a corporate trustee that has been adjudicated bankrupt or that has lost its charter.

B. In the case of the substitution of the trustee in a deed of trust securing the payment of indebtedness, notice of the motion made pursuant to § 64.2-1405 need only be given to the trustee or, if one has previously been appointed, to the substitute trustee unless notice to him is not required pursuant to subsection A; any beneficiaries appearing of record or known to the moving party; any debtors mentioned in the deed of trust; any persons who may be shown by the deed records to have assumed payment of the indebtedness in whole or in part; and the person in whom the equitable title to the property conveyed by the deed of trust is vested at the time of the motion as shown by the deed records. In such case when the written notice of motion has been filed in the clerk's office of the court having jurisdiction as defined in § 64.2-1405, service of the notice as to all parties mentioned in § 8.01-316 may be made in conformity with the provisions of §§ 8.01-316, 8.01-317, 8.01-318, 8.01-320, 8.01-322, and 8.01-323.

C. Any decree or order of substitution heretofore made by a court of competent jurisdiction is hereby validated.

D. Nothing in this section shall be construed as preventing a court from substituting a trustee in a suit instituted for that purpose.

Code 1919, § 6299; 1930, p. 350; 1932, p. 135; 1934, p. 156; 1944, p. 337; Code 1950, § 26-50; 1972, c. 825; 1997, c. 921; 2012, c. 614.

§ 64.2-1407. Who to execute the trust until new trustee appointed.

A. The personal representative of a deceased trustee, or the remaining trustee or trustees if there were more than one trustee and one or more but less than all of them have died, resigned, become incapable of executing the trust on account of physical or mental disability or confinement in prison, become ineligible to continue to serve as trustee because of no longer being a resident of the Commonwealth where residency is statutorily required, or otherwise become ineligible to continue serving as trustee, shall execute the trust, or so much of the trust as remained unexecuted at the time such lack of capacity to execute the trust or such ineligibility came into being until an appointment is made pursuant to this part, unless the instrument creating the trust directs otherwise or some other trustee is appointed for the purpose by a circuit court having jurisdiction of the case. In the case of removal of the trust management function by a corporate trustee, the corporate trustee shall continue to execute the trust until such time as an appointment is made pursuant to this part.

B. The provisions of this section shall not apply to any trust governed by the Uniform Trust Code (§ 64.2-700 et seq.).

Code 1919, § 6300; 1930, p. 350; 1940, p. 302; 1942, p. 168; Code 1950, § 26-51; 1998, cc. 392, 410; 2001, c. 38; 2005, c. 935; 2012, c. 614.

§ 64.2-1408. Circuit court may exercise same powers in suit to enforce or administer trust.

A circuit court may exercise all the powers conferred by §§ 64.2-1405, 64.2-1406, 64.2-1407, and 64.2-1412 in a suit pending to enforce or administer the trust.

Code 1919, § 6302; Code 1950, § 26-52; 2012, c. 614.

§ 64.2-1409. Information to be provided to clerk by fiduciary.

A. On and after July 1, 1998, every person seeking to qualify in any fiduciary capacity before the circuit 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 any form, a computer-generated facsimile of the form may be used by any person seeking to qualify.

B. Every qualified fiduciary who moves from the Commonwealth and becomes resident in another state shall inform the clerk and the commissioner of accounts of the court in which he was qualified of his new address within 30 days of the date of the change in residency. Any fiduciary who fails to so inform the clerk and commissioner of accounts shall be subject to a civil penalty of $50. For purposes of this section, a person becomes resident in another state when he can no longer satisfy the residency requirements specified in § 38.2-1800.1. This section shall not apply to any fiduciary whose cofiduciary is a resident of the Commonwealth.

1997, c. 842, § 26-1.2; 2005, c. 644; 2012, c. 614.

§ 64.2-1410. When court may require new bond or revoke authority; giving new bond upon motion of fiduciary, surety, or other party in interest.

A. Regardless of whether a fiduciary has given bond with or without sureties, at any time the circuit court under whose order or under the order of whose clerk any such fiduciary derives his authority shall, on the application of any surety or his personal representative, or may, (i) upon motion of the fiduciary or (ii) when it appears proper on report of the clerk or a commissioner of accounts or on evidence adduced before it by any interested party, order the fiduciary to give before the court or clerk a new bond or additional bond in a reasonable time as prescribed by the court and in such penalty and with or without sureties as the court deems proper. The new bond or additional bond shall have the effect provided by § 49-14. In all cases where the fiduciary qualified pursuant to an order issued by a clerk, the clerk shall have the same power as the court regarding bond and surety under this section. If the order 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. However, no such order shall be made unless reasonable notice appears to have been given to the fiduciary by (a) the commissioner of accounts who made the report, (b) the surety or his representative making the application, or (c) the service of a rule or otherwise. No order or revocation shall invalidate any previous act of such fiduciary.

B. When the court or clerk orders a new bond, additional bond, or a reduction in bond, the court or clerk shall, in lieu of requiring a personal appearance by the fiduciary for the execution thereof, allow the fiduciary's execution to be made by the fiduciary's agent under a power of attorney expressly authorizing the same.

Code 1919, § 5417; Code 1950, § 26-3; 1966, c. 328; 1997, c. 842; 2001, c. 79; 2012, c. 614.

§ 64.2-1411. When fiduciary may qualify without security; requirements for issuance of certificates of qualification; payments.

A. Any circuit court or circuit court clerk, having jurisdiction to appoint personal representatives, guardians, conservators, and committees, may, in his discretion, when there are no assets or the asset or amount coming into the possession of the personal representative, guardian of a minor, conservator, or committee does not exceed $25,000, allow the personal representative, guardian, conservator, or committee to qualify by giving bond without surety.

B. Any personal representative or trustee serving jointly with a bank or trust company that is exempted from giving surety on its bond under § 6.2-1003 shall, unless the court directs otherwise, also be exempt from giving surety.

C. If a fiduciary qualifies pursuant to subsection A, the court or clerk shall issue one or more certificates of qualification pursuant to this section for administration of an estate, guardianship, conservatorship, or committeeship that does not exceed a cumulative total of $25,000. Each such certificate shall specify that the maximum amount of estate, guardianship, conservatorship, or committeeship assets that may be collected pursuant to that certificate shall not exceed $25,000. Each such certificate shall:

1. Be titled "Qualification Certificate for Small Asset Estate";

2. State in a prominent position on the front of such certificate that any person may pay or deliver to the fiduciary named in the certificate any asset belonging, owed, or distributable to the specified deceased person, incapacitated ward, or minor having a value, on the date of payment or delivery, of no more than $25,000. Assets held in a safe deposit box shall not be counted toward such $25,000 limit, and the lessor of a safe deposit box shall not be deemed to know of, and shall have no obligation to determine, the presence or value of any asset in a safe deposit box;

3. State that the certificate (i) may only be used once, (ii) is not effective if it does not have an impression seal of the court clerk and therefore photocopies of the certificate are not effective, and (iii) must be retained by the payor; and

4. Bear the impression seal of the court clerk.

D. Upon being presented with a certificate of qualification issued pursuant to subsection C, any person may pay or deliver to the fiduciary named in such certificate any asset belonging, owed, or distributable to the specified deceased person, incapacitated ward, or minor having a value, on the date of payment, of no more than $25,000. The payor shall retain possession of such certificate. Assets held in a safe deposit box shall not be counted toward such $25,000 limit, and the lessor of a safe deposit box shall not be deemed to know of, and shall have no obligation to determine, the presence or value of any asset in a safe deposit box. Any person that makes such payment or delivery upon presentation of a certificate of qualification issued pursuant to subsection C is discharged and released from any or all claims or liabilities for such payment or delivery. Such payor is not required to see the application of such payment or delivery or to inquire into the assets paid or delivered by other parties to a fiduciary that qualifies pursuant to subsection A. A person presented with a certificate of qualification issued pursuant to subsection C shall not be liable for, or subject to, any claims, damages, fines or penalties for paying or distributing assets the person believed in good faith to have a value of $25,000 or less or for the failure to pay or deliver assets the person believed in good faith to have a value of more than $25,000.

E. A court clerk shall not be liable for any misrepresentations of a personal representative, guardian, conservator, or committee with regard to whether the estate qualifies for the small asset estate exemption under this section or for the performance of any of the clerk's duties under this section, except in the case of the clerk's gross negligence or intentional misconduct.

1918, p. 469; 1934, p. 24; Michie Code 1942, § 5371a; 1946, p. 492; Code 1950, § 26-4; 1964, c. 172; 1976, c. 338; 1980, c. 653; 1994, c. 25; 1997, c. 801; 1998, c. 117; 2003, c. 195; 2012, c. 614; 2014, c. 532; 2015, c. 610; 2018, c. 575.

§ 64.2-1412. How trustee required to give bond; when to be removed and another appointed.

After reasonable notice to a trustee, whether appointed by will, deed, or other writing, the circuit court that has jurisdiction to administer the trust may, on motion of any interested person, order the trustee to give bond with surety before the court, or before the clerk of the court, within a reasonable time and in a penalty to be prescribed by the court, for the faithful execution of the trust if the court deems the bond is proper for the security of the trust estate. If the order is not complied with, or whenever for any cause it appears proper, the court may remove the trustee and appoint another in his place.

Code 1919, § 6301; Code 1950, § 26-1; 2012, c. 614.

§ 64.2-1413. Placing certain trust assets in designated financial institutions; waiver or reduction of bond of fiduciary.

A. If the circuit court having jurisdiction of any estate in the process of administration by any guardian, conservator, curator, executor, administrator, trustee, receiver, or other fiduciary, determines that the size of the bond required of the fiduciary would be burdensome or for other cause, the court may order a portion or all of the personal assets of the estate, as the court deems proper, to be placed with a designated bank, trust company, or savings institution, insured by the Federal Deposit Insurance Corporation or other federal insurance agency and doing business in the Commonwealth, with consideration being given to any bank, trust company, or savings institution proposed by the fiduciary. When the original assets are placed with a designated financial institution, the financial institution shall issue in the name of the estate and file with the court a receipt for such assets and shall give the fiduciary a copy of the receipt. The receipt shall acknowledge that:

1. The original assets received by the financial institution, or the duly collected proceeds from such assets, and all interest, dividends, principal, and other indebtedness subsequently collected by the financial institution on account thereof, are to be held by the financial institution in safekeeping, subject to such instructions of the fiduciary to the financial institution that have been authorized by orders of the court; and

2. Accountings therefor shall be made to the fiduciary at reasonably frequent intervals agreeable to the fiduciary. After the receipt of the financial institution for the original assets placed with the financial institution has been filed with the court, the court shall enter an order waiving the bond to be given or previously given by the fiduciary or reduce it so that the bond applies only to the estate remaining in the possession of the fiduciary, whichever the court deems best for the estate.

B. Whenever the court has ordered any assets of an estate be placed with a financial institution pursuant to subsection A, any person or corporation having possession or control of any of the assets, or owing interest, dividends, principal, or other indebtedness on account thereof, shall, on the due dates thereof, upon the demand of the financial institution whether the fiduciary has duly qualified or not, pay and deliver the assets, interest, dividends, principal, and other indebtedness to the financial institution. The receipt and acceptance thereof by the financial institution shall relieve the person or corporation from all further responsibility.

C. Any bank, trust company, or savings institution designated by the court pursuant to subsection A may accept or reject the designation in any particular instance. The financial institution shall evidence its acceptance or rejection by filing the same with the court or the clerk of the court making the designation within 15 days after actual knowledge of the designation shall have come to the attention of the financial institution. In the event of acceptance, the financial institution shall be allowed as a proper charge against the assets placed with it such reasonable amount for its services and expenses as the court making the designation may order.

1972, c. 321, § 26-45.2; 1990, c. 3; 1997, c. 801; 2012, c. 614.

§ 64.2-1414. Effect of orders of qualification of bank as committee or guardian.

If a bank qualifies as committee or guardian and the order of qualification fails to specify that the bank is to be guardian or committee of the person, it shall be deemed a qualification solely as committee, conservator, or guardian of the estate.

2010, c. 794, § 26-7.5; 2012, c. 614.

§ 64.2-1415. Liability for losses by negligence or failure to make defense.

A. If any personal representative, guardian, conservator, curator, or committee, or any agent or attorney-at-law, by his negligence or improper conduct, loses any debt or other money, he shall be charged with the principal of what is so lost, and interest thereon, in like manner as if he had received such principal.

B. If any personal representative, guardian, conservator, curator, or committee pays any debt the recovery of which could be prevented by reason of illegality of consideration, lapse of time, or otherwise, knowing the facts by which the recovery could have been prevented, no credit shall be allowed to him for such payment.

Code 1919, § 5406; Code 1950, § 26-5; 1997, c. 801; 2012, c. 614.

§ 64.2-1416. Liability of fiduciary for actions of cofiduciary.

A. As used in this section, "fiduciary" has the same meaning as provided in § 8.01-2, except that it shall not include trustees subject to the requirements and provisions of the Uniform Trust Code (§ 64.2-700 et seq.).

B. Any power vested in three or more fiduciaries may be exercised by a majority of the fiduciaries, but a fiduciary who has not joined in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise. A dissenting fiduciary is not liable for the consequences of an act in which he joins at the direction of the majority of the fiduciaries if he expressed his dissent in writing to any of his cofiduciaries, if the act is not of itself a patent breach of trust.

C. A fiduciary shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any cofiduciary, or for those of any banker, broker, or other person with whom the trust money or securities may be lawfully deposited, or for any loss that does not result from his own default or negligence.

D. Whenever the instrument under which a fiduciary or fiduciaries are acting reserves the authority to direct the making or retention of any investment for the settlor, testator, or creator or vests such authority in an advisory or investment committee or any other person, including a cofiduciary, to the exclusion of the fiduciary or the exclusion of one or more of several fiduciaries,, the excluded fiduciary or cofiduciary shall be liable, if at all, only as a ministerial agent and shall not be liable as fiduciary or cofiduciary for any loss resulting from the making or retention of any investment pursuant to such authorized direction.

E. This section does not excuse a cofiduciary from liability for failing to (i) participate in the administration of trust, (ii) attempt to prevent a breach of trust, or (iii) seek advice and guidance from the circuit court in an apparently recurring situation unless otherwise expressly provided by the instrument under which the cofiduciary is acting.

1978, c. 327, § 26-5.2; 1980, c. 440; 2005, c. 935; 2012, c. 614.

§ 64.2-1417. How judgment may be entered against personal representative, conservator, or committee.

A judgment or decree against the personal representative of a decedent, committee of a convict, or conservator of an incapacitated person as defined in § 64.2-2000 for a debt due from the decedent, convict, or incapacitated person may, without taking an account of the transactions of the representative, conservator, or committee, be entered to be paid out of the estate of the decedent, convict, or incapacitated person in, or that shall come into, the possession of the representative, conservator, or committee to be administered. If the circuit court holds that the proceeding for the debt would not have been brought if the fiduciary had prudently discharged his duty, the amount of the judgment or decree for costs shall be paid out of the estate of the representative, conservator, or committee.

Code 1919, § 5407; 1950, p. 356, § 26-6; 1997, c. 921; 2012, c. 614.

§ 64.2-1418. Court order for payments due from fiduciaries; effect.

When a report of the accounts of any guardian, curator, conservator, committee, or trustee is confirmed, either in whole or in a qualified manner, the circuit court for the clerk's office where the report is filed may order payment of what appears due on such accounts to such persons as would be entitled to recover the same by suit. Any guardian, curator, conservator, committee, or trustee who has, in good faith and in compliance with the order of such court, paid and delivered the money and other estate in his possession to whomsoever the court has adjudged is entitled thereto, shall be fully protected against the demands of creditors and all other persons.

Code 1919, § 5433; 1942, p. 480; Code 1950, § 26-7; 1997, c. 801; 2012, c. 614.

§ 64.2-1419. Execution of fiduciary bond or appointment of agent designates clerk as attorney for service of process.

A. Every person who qualifies in a circuit court or clerk's office as a personal representative of a decedent, guardian, conservator, committee, trustee, or receiver, and the surety upon any such fiduciary's bond, shall, by executing the bond required of the fiduciary, be deemed to have designated the clerk of the court in which the qualification is had, and his successor in office, as the true and lawful attorney of the fiduciary upon whom service of any notice, process, or rule issuing from a court of the Commonwealth or a commissioner of such court may be executed, whenever the fiduciary cannot be found and served within the Commonwealth after the exercise of due diligence. This section only applies if the proceeding relates to the proper administration or distribution of the fiduciary estate, including a proceeding to assert a claim against the estate or to remove the fiduciary or to obtain a personal judgment against him and his surety, either or both, for nonfeasance, misfeasance, or malfeasance in the performance of the fiduciary's duties. The designation shall terminate and no longer be in effect when the fiduciary's final account shall stand confirmed as provided in § 64.2-1212 or by order of court.

B. Every nonresident trustee who, pursuant to § 64.2-427 or 64.2-428, files a consent in writing with a clerk of a circuit court that any service of process or notice may be by service upon a resident of the Commonwealth at such address as the trustee may appoint in the written instrument filed with the clerk shall, by filing such consent, be deemed to have designated the clerk of the court in which the consent is filed, and his successor in office, as the true and lawful attorney of the nonresident trustee upon whom service of any notice, process, or rule issuing from a court of the Commonwealth may be executed, whenever the resident appointed to receive service cannot be found and served within the Commonwealth after the exercise of due diligence.

1954, c. 601, § 26-7.1; 1997, c. 801; 2000, c. 320; 2012, c. 614.

§ 64.2-1420. Clerk to mail notice, process, or rule to person served.

Whenever any notice, process, or rule is served on the clerk of a circuit court pursuant to § 64.2-1419, the clerk shall mail the notice, process, or rule forthwith by certified or registered mail, postage prepaid, to the person thus served, to his last known address as shown by the court papers, the cost thereof to be paid in advance by the person desiring the service. In lieu of using certified or registered mail, the clerk of court may also use overnight delivery, with the cost thereof to be paid in advance by the person desiring service.

1954, c. 601, § 26-7.2; 2004, c. 367; 2012, c. 614.

§ 64.2-1421. What judgment or decree based upon service upon clerk shall specifically adjudicate.

Any judgment or decree based upon service of notice, process, or rule upon the clerk of the circuit court shall specifically adjudicate that due diligence has been used and that the person thus served cannot be found and served within the Commonwealth, that the requirements of § 64.2-1420 have been complied with, and that the fiduciary's final account does not stand confirmed as provided in § 64.2-1212 or by order of court.

1954, c. 601, § 26-7.3; 2012, c. 614.

§ 64.2-1422. Environmental liability of fiduciaries.

A. As used in this section:

"Environmental law" means any federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment or human health.

"Fiduciary" includes guardians, committees, conservators, trustees, executors, administrators and administrators with the will annexed, curators of decedents' wills, and attorneys-in-fact or agents acting for principals under written powers of attorney, and any combination of individuals, corporations, and other entities serving in those capacities.

"Individual capacity" means the nonfiduciary capacity of any individual, corporation, or other entity serving as a fiduciary.

B. As to any property held in trust or in an estate, a fiduciary shall not be considered in its individual capacity to be (i) the owner or operator of that property as defined under any applicable environmental law or (ii) a party otherwise liable under any environmental law unless the fiduciary's acts or omissions outside the scope of its fiduciary duties constitute conduct that independently would give rise to individual liability.

C. A fiduciary shall not be liable in its individual capacity to any beneficiary or other party for any decrease in value of assets in trust or in an estate by reason of the fiduciary's investigation or evaluation of potential contamination of property held in the trust or estate or the fiduciary's compliance with any environmental law, specifically including any reporting or disclosure requirement under such law.

D. Neither a fiduciary's acceptance of property nor its failure to inspect property shall be deemed to create any implication as to whether or not there is or may be any liability under any environmental law with respect to such property.

E. Nothing in this section shall affect or modify any defense to individual liability under any environmental law available to any fiduciary under any other provision of state or federal law, including the common law.

1994, c. 476, § 26-7.4; 1997, c. 801; 2012, c. 614.

§ 64.2-1423. Trustee not disqualified due to status as stockholder, employee, or officer of corporate noteholder; sale of property by trustee not voidable.

A. The fact that a trustee in a deed of trust to secure a debt due to a corporation is a stockholder, member, employee, officer, or director of, or counsel to, the corporation does not disqualify the trustee from exercising the powers conferred by the deed of trust, nor does it render voidable a sale by the trustee in the exercise of the powers conferred on him by the deed of trust so long as the trustee did not participate in the corporation's decision as to the amount to be bid at the sale of the trust property.

B. In addition to the provisions of subsection A, if the lender secured by the deed of trust bids the amount secured, including interest through the date of sale and costs of foreclosure, the trustee's participation in fixing the bid price by the lender shall not be deemed improper and the sale shall not be rendered voidable solely by reason of the trustee's participation.

C. All sales made before July 1, 1990, by any trustee by virtue of a deed of trust and any deed made by the trustee in pursuance of such sales are hereby declared to be valid and effective in all respects, if otherwise valid according to laws then in force, the same as if the trustee had not been a stockholder, member, employee, officer, or director of, or counsel to, the corporation thereby secured.

1920, p. 502; 1932, p. 523; Michie Code 1942, § 6304b; Code 1950, § 26-58; 1990, c. 763; 2012, c. 614.

§ 64.2-1424. Resignation by fiduciary of his trust.

The circuit court in which or before the clerk of which a fiduciary qualified may allow any personal representative, guardian, conservator, or committee to resign his trust conditioned upon his accounts as the fiduciary being stated and settled in the mode prescribed by law. Such resignation shall not invalidate any act done or affect any liability incurred by him while holding such trust.

Code 1919, § 5419; 1938, p. 790; Code 1950, § 26-46; 1997, c. 801; 2012, c. 614.

§ 64.2-1425. How securities transferred to successor.

When any securities for money loaned or invested shall be standing in the name of any fiduciary who has died or resigned or whose power has been revoked, and the fiduciary or his personal representative has not transferred the securities to his successor, the circuit court in which the fiduciary qualified, upon the petition of the successor or of any other interested person, may direct that the securities be transferred to the successor, a receiver of the court, or otherwise, and may direct that the dividends, interest, or proceeds of the securities be received or paid in such manner as the court deems proper.

Code 1919, § 5432; Code 1950, § 26-56; 2012, c. 614.

Article 2. Nonresident Trustees.

§ 64.2-1426. Nonresident fiduciaries.

A. A natural person who is not a resident of the Commonwealth may be appointed or allowed to qualify or act as the personal representative, or trustee under a will, of any decedent, or appointed as the guardian of an infant's estate or the guardian or conservator of the property of an incapacitated person under Chapter 20 (§ 64.2-2000 et seq.) or Chapter 21 (§ 64.2-2100 et seq.).

Qualification of such person as a personal representative, or trustee under a will, of any decedent shall be subject to the provisions of Article 1 (§ 64.2-500 et seq.) of Chapter 5.

At the time of qualification or appointment, each such nonresident shall file with the clerk of the circuit court of the jurisdiction wherein the qualification is had or appointment is made his consent in writing that service of process in any action or proceeding against him as personal representative, trustee under a will, conservator, or guardian, or any other notice with respect to the administration of the estate, trust, or person in his charge in the Commonwealth may be by service upon the clerk of the court in which he is qualified or appointed, or upon such resident of the Commonwealth and at such address as the nonresident may appoint in the written instrument. In the event of the death, removal, resignation, or absence from the Commonwealth of a resident agent or any successor named by a similar instrument filed with the clerk, or if a resident agent or any such successor cannot with due diligence be found for service at the address designated in such instrument, then any process or notice may be served on the clerk of the circuit court. Notwithstanding §§ 64.2-505 and 64.2-2011, where any nonresident qualifies, other than as a guardian of an incapacitated person, pursuant to this subsection, bond with surety shall be required in every case, unless a resident personal representative, trustee, or fiduciary qualifies at the same time or the court or clerk making the appointment waives surety under the provisions of § 64.2-1411.

B. A corporation shall not be appointed or allowed to qualify or act as personal representative, as trustee under a will, or as one of the personal representatives or trustees under a will of any decedent, or appointed or allowed to qualify or act as guardian of an infant, as one of the guardians of an infant, as guardian of the person or property of an incapacitated person under Chapter 20 (§ 64.2-2000 et seq.) or Chapter 21 (§ 64.2-2100 et seq.), or as one of the guardians or conservators, unless the corporation is authorized to do business in the Commonwealth. Nothing in this section shall be construed to impair the validity of any appointment or qualification made prior to January 1, 1962, nor to affect in any way the other provisions of this chapter or of § 64.2-609. The provisions of this section shall not authorize or allow any appointment or qualification prohibited by § 6.2-803.

C. The fact that an individual nominated or appointed as the guardian of the person of an infant is not a resident of the Commonwealth shall not prevent the qualification of the individual to serve as the sole guardian of the person of the infant.

1924, p. 415; 1936, p. 760; Michie Code 1942, § 5400a; 1950, p. 724, § 26-59; 1962, c. 576; 1983, c. 467; 1984, c. 39; 1986, cc. 53, 543; 1989, c. 535; 1995, cc. 678, 684; 1996, c. 680; 1997, c. 921; 2001, c. 836; 2011, c. 518; 2012, c. 614.

§ 64.2-1427. How property of nonresident infant or incapacitated person transferred to foreign guardian, conservator, or committee.

When any nonresident infant or incapacitated person is entitled to property or money in the Commonwealth, a petition to remove the property or money to the domicile of the infant or incapacitated person may be filed by his guardian, conservator, committee, or other fiduciary lawfully appointed and qualified in the state or country of his residence, in the circuit court of the county or city in which the property or money, or some part thereof, is located. If entitlement to the property or money was acquired other than by a will or was acquired by a will that restricts the transfer out of the Commonwealth, the infant or incapacitated person, and the guardian of the infant or the conservator or other fiduciary of the incapacitated person appointed in the Commonwealth, if there is one, shall be made a party defendant to this petition. The court shall appoint a guardian ad litem for the infant or incapacitated person who, as well as the conservator or other fiduciary, if there is one, shall answer the petition on oath. Upon a hearing of the case on its merits, or upon the petition without hearing if entitlement to the property or money was acquired by a will that does not restrict the transfer out of the Commonwealth, the court may order the fiduciary to pay and deliver to the foreign guardian, conservator, committee, or fiduciary, or his agent or attorney, all personal property and money in his possession belonging to the infant or incapacitated person, and authorize the foreign guardian, conservator, committee, or fiduciary to sue for, recover, and receive all money and personal property, including the accruing rents of his real estate, that belongs to the infant or incapacitated person in the same manner as if he were appointed a guardian, conservator, committee, or fiduciary of the infant or incapacitated person in the Commonwealth, and to remove the money and personal property to the state or country in which the foreign fiduciary was appointed and qualified.

Code 1919, § 5350; Code 1950, § 26-60; 1968, c. 399; 1983, c. 487; 1997, c. 801; 2012, c. 614.

§ 64.2-1428. Transfer of proceeds of sale of real estate of nonresident beneficiary to foreign fiduciary.

When the proceeds of sale of the real estate of an infant, incapacitated person, or cestui que trust are invested, or required to be invested under the direction of the circuit court, and the infant, incapacitated person, or cestui que trust does not reside in the Commonwealth, on the petition of a guardian, committee, conservator, or trustee lawfully appointed or qualified in the state or country of residence of the infant, incapacitated person, or cestui que trust, the court under whose direction such proceeds are so invested, or required to be invested, may, with the consent of the persons residing in the Commonwealth who would be the heirs of the infant, incapacitated person, or cestui que trust, if he were dead, order such proceeds to be paid and delivered to the foreign guardian, committee, conservator, or trustee, or his agent or attorney, and removed by him to the state or country in which he was appointed and qualified. The court may refuse to permit the payment and delivery if the court determines that the removal of the trust subject will defeat or conflict with the provisions of the deed, will, or other instrument creating the trust.

Code 1919, § 5351; Code 1950, § 26-61; 1997, c. 801; 2012, c. 614.

§ 64.2-1429. Notice and bond required prior to transfer.

No order shall be made pursuant to §§ 64.2-1427 and 64.2-1428 until (i) notice of the petition has been published once a week for four successive weeks in a newspaper published in the county or city in which the petition is filed, or if there is none, then in a newspaper published in an adjoining county; (ii) it is shown by authentic documentary evidence that the foreign guardian, conservator, or committee has, in the state or country where he qualified, given bond with surety sufficient to insure his accountability for the whole amount of the estate in his possession or that may be received by him; and (iii) the circuit court determines that the removal of such money or property from the Commonwealth will not impair the rights or be prejudicial to the interests either of the infant or incapacitated person or of any other person.

Code 1919, § 5352; 1930, p. 736; Code 1950, § 26-62; 1997, c. 801; 2012, c. 614.

§ 64.2-1430. When bond may be dispensed with.

In any case in which the circuit court finds that the laws of the state or country in which the infant or incapacitated person resides and the foreign guardian, conservator, or committee was appointed and qualified do not provide for the giving of a bond by the guardian, conservator, or committee, the court, in its discretion, may permit the money and other estate of the infant or incapacitated person to be paid and delivered to the foreign fiduciary although he has not given the bond required by § 64.2-1429.

Code 1919, § 5352; 1930, p. 736; Code 1950, § 26-63; 1997, c. 801; 2012, c. 614.

§ 64.2-1431. Sale of property and payment of proceeds to nonresident trustee.

If, in any proceeding under § 64.2-1427 or in case of an interest in property acquired by a will that does not restrict the transfer of property out of the Commonwealth upon petition under § 64.2-1427, the circuit court may order the property, or any part of it, to be sold, and the proceeds to be paid to the foreign guardian, conservator, committee, or nonresident trustee.

Code 1919, § 5355; Code 1950, § 26-66; 1968, c. 399; 1997, c. 801; 2005, c. 935; 2012, c. 614.

§ 64.2-1432. Discharge from liability of resident guardian, committee, conservator, or trustee.

When any guardian, committee, conservator, trustee, or other person in the Commonwealth shall pay over, transfer, or deliver any estate in his possession or vested in him, under any order or decree made in pursuance of this chapter, he shall be discharged from all responsibility therefor.

Code 1919, § 5356; Code 1950, § 26-67; 1997, c. 801; 2012, c. 614.

Chapter 15. Investments.

Article . .

§ 64.2-1500. Court orders regarding money in possession of fiduciary.

If a report made pursuant to § 64.2-1210 or a special report of the commissioner of accounts shows that money is in the possession of a fiduciary, the circuit court in which the report is filed may order that the money be invested or loaned out, or make such other order respecting the money as the court deems proper.

Code 1919, § 5430; Code 1950, § 26-38; 2012, c. 614.

§ 64.2-1501. Time within which guardian of an estate, conservator, or other fiduciary to invest funds; reasonable diligence required.

A. Whenever a guardian of an estate, conservator, or other fiduciary charged with the investment of funds collects any principal, he shall have a reasonable time, not to exceed four months, to invest or loan the funds and shall not be charged with interest thereon until the expiration of such time. A guardian of an estate, conservator, or any other fiduciary shall only be required to invest in accordance with the provisions of §§ 64.2-1502 through 64.2-1506 and the Uniform Prudent Investor Act (§ 64.2-780 et seq.) and, if he invests in accordance with these provisions, he shall be accountable only for such interest and profits as are earned. If any funds are otherwise invested without the previous consent of the court having jurisdiction of such trust funds, the burden shall be on the guardian of an estate, conservator, or other fiduciary before his settlement is approved by the commissioner of accounts to show to the satisfaction of the commissioner of accounts that, after exercising reasonable diligence, he was unable to invest the funds in accordance with these provisions and that the investment made was reasonable and proper under all of the circumstances and fair to the beneficiary of the funds.

B. This section shall not be construed as altering the provisions of any will, deed, or other instrument that give 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.

Code 1919, § 5325; 1938, p. 203; 1946, p. 223; Code 1950, § 26-39; 1997, c. 842; 1999, c. 772; 2012, c. 614.

§ 64.2-1502. In what securities fiduciaries may invest; definitions.

A. As used in this section:

"Fiduciary" has the same meaning as provided in § 8.01-2 and also includes an attorney-in-fact or agent acting for a principal under a written power of attorney, a custodian under § 64.2-1911, and a custodial trustee under § 64.2-906.

"National rating service" means Standard & Poor's Corporation, Moody's Investors Service, Inc., Duff and Phelps, Inc., Fitch Investors Corporation, and any successor to the rating business of any of them.

B. Notwithstanding any other provision of law designating as legal investments for fiduciaries the bonds, notes, obligations, or other evidences of indebtedness issued by a governmental entity or political subdivision of the Commonwealth, including but not limited to agencies, authorities, commissions, districts, boards, or local governments, and except as specifically provided in § 2.2-4519, fiduciaries, whether individual or corporate, shall, except as limited in subsection E, be conclusively presumed to have been prudent in investing the funds held by them in a fiduciary capacity in only the following securities:

1. Obligations of the Commonwealth, its agencies and political subdivisions. The following obligations:

a. Bonds, notes, and other evidences of indebtedness of the Commonwealth and securities unconditionally guaranteed as to the payment of principal and interest by the Commonwealth;

b. Revenue bonds, revenue notes, or other evidences of revenue indebtedness issued by agencies or authorities of the Commonwealth upon which there is no default; and

c. Bonds, notes, and other evidences of indebtedness of any county, city, town, district, authority, or other public body in the Commonwealth upon which there is no default provided that such bonds, notes, and other evidences of indebtedness are (i) direct legal obligations of the public body, for the payment of which the public body has pledged its full faith and credit and unlimited taxing power, or (ii) unconditionally guaranteed as to the payment of principal and interest by the public body.

In every case referred to in this subdivision, such bonds, notes, or other evidences of indebtedness shall be rated in one of the two highest rating categories of at least one national rating service and not rated in a category lower than the two highest rating categories of any national rating service. Determination of an obligation's rating in one of the two highest rating categories shall be made without regard to any refinement or gradation of such rating category by numerical or other modifier. In addition, the remaining maturity of such bonds, notes, or other evidences of indebtedness shall not be greater than five years.

2. Obligations of the United States. Bonds, notes, and other obligations of the United States and securities unconditionally guaranteed as to the payment of principal and interest by the United States with a remaining maturity not greater than five years, except in the case of savings bonds, which may have a longer maturity. The obligations enumerated in this subdivision may be held directly or in the form of repurchase agreements collateralized by such obligations or in the form of securities of any open-end or closed-end management type investment company or investment trust registered under the federal Investment Company Act of 1940, provided that the portfolio of such investment company or investment trust is limited to such obligations or repurchase agreements collateralized by such obligations, or securities of other such investment companies or investment trusts whose portfolios are so restricted.

3. Savings accounts, time deposits, or certificates of deposit. Savings accounts, time deposits, or certificates of deposit in any bank, savings bank, trust company, savings and loan association, or credit union authorized to do business in the Commonwealth, but only to the extent that such accounts, deposits, or certificates are fully insured by the Federal Deposit Insurance Corporation or any successor federal agency or by the National Credit Union Share Insurance Fund or any successor to it.

C. Notwithstanding the provisions of this section, investments listed in § 2.2-4519 as in effect prior to July 1, 1992, which continue to be held on July 1, 1992, shall be subject to § 64.2-781, and any reference to the Virginia "legal list" or to § 2.2-4519 or any predecessor statute contained in a will, trust, or other instrument that was irrevocable on June 30, 1992, shall be construed to refer to such section as in effect on June 30, 1992, or at such earlier time as may be specified in the controlling document, absent an expression of intent to the contrary contained in such document.

D. The permissible investments specified in subsection B are not exclusive and shall not be construed to limit a fiduciary's investments as permitted pursuant to the Uniform Prudent Investor Act (§ 64.2-780 et seq.).

E. The presumption under subsection B shall apply to (i) a fiduciary only for a calendar year in which the value of the intangible personal property under the fiduciary's control or management does not exceed $100,000 at the beginning of such year or (ii) a fiduciary who, on motion for good cause shown, has obtained express authorization from the court having jurisdiction over the fiduciary for the presumption under subsection B to apply.

1992, c. 810, § 26-40.01; 1996, c. 508; 1999, c. 772; 2005, c. 62; 2007, c. 517; 2012, c. 614.

§ 64.2-1503. Investment in bonds or other obligations issued, guaranteed, or assured by Inter-American Development Bank.

Executors, administrators, trustees, and other fiduciaries, both individual and corporate, may invest the funds held by them in a fiduciary capacity in bonds and other obligations issued, guaranteed, or assured by the Inter-American Development Bank, which are and shall be considered lawful investments.

1968, c. 65, § 26-40.1; 2012, c. 614.

§ 64.2-1504. Investments in municipal bonds by banks or trust companies.

Subject to the Uniform Prudent Investor Act (§ 64.2-780 et seq.) and the common law duties of a fiduciary, unless the governing instrument or a court order specifically directs otherwise, a bank or trust company serving as personal representative, trustee, guardian, agent, or in any other fiduciary capacity, may purchase during the existence of any underwriting or selling syndicate any state or municipal security otherwise authorized by this title in spite of the fact that the fiduciary, or an affiliate thereof under common ownership, participates or has participated as a member of a syndicate underwriting such security if the fiduciary purchases the security from another syndicate member or from an affiliate thereof and not from itself or any of its affiliates.

1988, c. 347, § 26-40.2; 1999, c. 772; 2012, c. 614.

§ 64.2-1505. Investments that cease to be eligible may be retained.

Investments made under the provisions of § 64.2-1502, if in conformity with the requirements of that section at the time the investments were made, may be retained even though they cease to be eligible for purchase under the provisions of that section, but shall be subject to the provisions of the Uniform Prudent Investor Act (§ 64.2-780 et seq.).

Code 1919, § 5431; 1942, p. 662; Code 1950, § 26-44; 1992, c. 810; 1999, c. 772; 2012, c. 614.

§ 64.2-1506. Investment in mutual fund affiliated with fiduciary.

Unless prohibited or otherwise limited by the instrument under which a fiduciary is acting, including a fiduciary of an agency account, the fiduciary may invest in a mutual company, investment trust, or investment company sponsored, advised, or sold by the fiduciary or an affiliate if the investment is otherwise appropriate as an investment. In such case, the fiduciary shall not take a commission as fiduciary to the extent that the fiduciary, or its affiliate or division, receive compensation for services relating to advice or services to such mutual fund, investment trust, or investment company, unless (i) otherwise expressly agreed in writing by the creator of the trust or affected beneficiary or (ii) the fiduciary discloses by statement, prospectus, or otherwise to all current income beneficiaries of an account the rate, formula, or other method by which the compensation received or to be received by the fiduciary or affiliate or division of the fiduciary for such advice and services is determined. In such case, the compensation for such advice and services shall not exceed the customary or prevailing amount that is charged by a fiduciary, or its affiliate or division, for providing comparable advice and services for the benefit of nonfiduciary accounts.

1990, c. 66, § 26-44.1; 1992, c. 684; 2012, c. 614.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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