Insolvent Estates

If one or more claims are filed against the estate, the commissioner cannot approve a final accounting until the claims have been resolved. The claims must be paid or otherwise released.

If claims against the estate (whether or not filed with the commissioner), in the aggregate, exceed the total value of the estate, the estate is deemed to be insolvent. Determination of priorities among competing claims in an insolvent estate is complex, and assets must be distributed in accordance with the Code of Virginia. See Virginia Code §64.2-528.

If a fiduciary makes disbursements which do not reflect the priorities which Virginia law establishes, the fiduciary may be personally responsible for any improper payments.[1]

If the estate disputes any claims, the fiduciary may request that the commissioner hold a debts and demands hearing.  The fiduciary must give disputed notice to the creditor if the estate disputes a claim. A copy of the claim dispute form can be found in the Estate Forms section of this website.

If the estate is insolvent, the fiduciary should request that the commissioner hold a hearing to determine the debts and demands against the estate regardless of whether the estate disputes any of the claims.

[1] See Bliss v. Spencer, 99 S.E. 593, 125 Va. 36 (1919) (A fiduciary is personally liable for distributing the personal assets of a decedent when there are insufficient funds for the payment of the estate’s debts). See also Herelick v. Southern Dry Goods & Notion Co., Inc., 139 Va. 121, 123 S.E. 529 (1924) (A fiduciary is personally liable for overpayment to creditors beyond their pro rata share of an estate).