A common misunderstanding in Virginia practice and procedure arises in the context of Commissioners of Accounts. Individuals interacting for the first time with a Commissioner of Accounts’ office may misapprehend the nature of that office, believing it to be fulfilling a merely ministerial or administrative function. In fact, it is a quasi-judicial office, with appointment made by the court.
Persons appearing before the Office of the Commissioner of Accounts, including its staff, would do well to remember the judicial nexus. While a level of informality is permitted to occur, a fiduciary’s continued failure to comply with the Commissioner’s mandate can result in substantial negative repercussions. In extreme cases, even arrest and incarceration may be sought from and ordered through the court for contempt.
On the other hand, beneficiaries who believe that a Commissioner’s office is a free tool to settle scores with a fiduciary may be in for a surprise. The Commissioner’s office may be willing to pursue a particular fiduciary for compliance, and if a fiduciary satisfies the Commissioner’s office through substantial compliance with pending requests, the issue may stand ended. Beneficiaries who are primarily pursuing a vendetta also may come to learn that a fiduciary is not expected to bear legal fees and costs from the fiduciary's personal funds to perform their duties.
"I hope to live to see it brought home, not only to the gentlemen of the bar, but to all fiduciaries as well, that the filing in due course as required by law of inventories and appraisements and the orderly settlement is a matter of public concern and not merely something to be done if and when it suits the fancy of the fiduciary to comply with the law in these respects."
- Opinion of Judge Brockenbrough Lamb in the matter of Wilhelmine Boschen Schmidt, deceased (1952), Chancery Court of the City of Richmond
Posted by: E | December 09, 2020 at 07:09 PM