Consequenses of Failure to File
CONSEQUENCES FOR FAILURE TO TIMELY FILE
There are consequences for your failure to file inventory and accounts on a timely basis which are set by Virginia statutes, and the Commissioner of Accounts is the person charged by law with enforcing the filings, at the times required. Do not leave the preparation of your inventory and/or account to the last minute, as you will invariably have some difficulty which results in a late filing. Keep and have all documents available to prepare the filings. Mark a calendar with the due date so that it will not “slip by” you. The following are some of the consequences set forth by statute:
Loss of Commission
Virginia law requires the timely filing of properly completed Affidavits of Notice, Inventories and Accounts by personal representatives. Abuses in the filing of an Inventory or Accounts may, in the discretion of the Commissioner, result in the disallowance of all or part of a commission requested by the personal representative.
If you have failed to timely file with the Commissioner’s office, you will receive a delinquency letter giving you thirty (30) days within which to prepare and file the delinquent filing with the Commissioner’s office. The receipt of this letter requires that you comply within that thirty (30) day period or will result in the issuance of a summons. The receipt of the letter will also subject the personal representative to personal liability of $40.00 for the failure to timely file.
This penalty is to be paid by the fiduciary personally and not from the estate.
The Summons Against a Personal Representative
If the personal representative fails to comply with the delinquency notice from the Commissioner’s office within thirty (30) days as set forth in the delinquency letter, a summons is issued by the Commissioner’s office and served on the fiduciary requiring the completion and submission of the delinquent filing within thirty (30) days. Failure to file within thirty (30) days will result in a report to the Henrico County Circuit Court and probable entry by the Court of an order requiring you to appear and show cause why you should not be fined or held in contempt for failure to comply. The filing of a summons against the fiduciary results in personal liability to the fiduciary for the sum of $150.00 plus service of process fees incurred by the Commissioner’s office in obtaining service of the summons on the fiduciary.
These sums shall not be paid from the estate, but are due by the personal representative.
Show Cause for Failure to Properly or Timely File
Where the fiduciary has failed to comply with the delinquency letter and the summons, the Commissioner is obligated to report the failure to the Henrico County Circuit Court at which time a show cause order is requested by the Commissioner requiring the fiduciary to appear before a Judge of the Circuit Court of Henrico County and to demonstrate a good reason for the personal representative’s failure to comply with the obligations to the Commissioner’s office. This show cause may result in any or all of the following:
a. An order to file the inventory/account by a date set by the Judge;
b. A fine up to $500.00 against the fiduciary personally entered by the Court;
c. A contempt of Court citation against the fiduciary including incarceration as a possible penalty;
d. Removal of the fiduciary as executor or administrator by the Court;
e. Forfeiture (judgment) entered by the Court on the personal bond (or surety) of the fiduciary
given at the time of qualification for the assets of the estate unaccounted for by the personal
f. The assessment of commissioner’s fees and costs to the fiduciary, personally;