SUBTITLE I. GENERAL PROVISIONS.

Chapter 1. Definitions and General Provisions.

Definitions.

General Provisions.

Privacy Expectation Afterlife and Choices Act.

Uniform Fiduciary Access to Digital Assets Act.

Article 1. Definitions.

§ 64.2-100. Definitions.

As used in this title, unless the context otherwise requires:

"Bona fide purchaser" means a purchaser of property for value who has acted in the transaction in good faith. Notice of a seller's marital status, or notice of the existence of a premarital or marital agreement, does not affect the status of a bona fide purchaser. A "purchaser" is one who acquires property by sale, lease, discount, negotiation, mortgage, pledge, or lien or who otherwise deals with property in a voluntary transaction, other than a gift. A purchaser gives "value" for property acquired in return for a binding commitment to extend credit to the transferor or another as security for or in total or partial satisfaction of a pre-existing claim, or in return for any other consideration sufficient to support a simple contract.

"Fiduciary" includes a guardian, committee, trustee, executor, conservator, or personal representative.

"Personal representative" includes the executor under a will or the administrator of the estate of a decedent, the administrator of such estate with the will annexed, the administrator of such estate unadministered by a former representative, whether there is a will or not, any person who is under the order of a circuit court to take into his possession the estate of a decedent for administration, and every other curator of a decedent's estate, for or against whom suits may be brought for causes of action that accrued to or against the decedent.

"Trustee" means a trustee under a probated will or an inter vivos trust instrument.

"Will" includes any testament, codicil, exercise of a power of appointment by will or by a writing in the nature of a will, or any other testamentary disposition.

(Code 1950, § 64-47; 1968, c. 656, § 64.1-45; 1992, cc. 617, 647, § 64.1-01 ; 2012, c. 614.)

Transition provisions. - Acts 2012, c. 614, effective October 1, 2012, recodified Titles 26 , 31, and 64.1, as well as Chapters 10 ( § 37.2-1000 et seq.) and 10.1 ( § 37.2-1031 et seq.) of Title 37.2 and Chapters 2.1 ( § 55-34.1 et seq.), 15 ( § 55-268.11et seq.), 15.1 ( § 55-277.1 et seq.), 16 ( § 55-278 et seq.), 22 ( § 55-401 et seq.), and 31 ( § 55-541.01 et seq.) of Title 55. In addition to revision by Acts 2012, c. 614, the recodified sections were also amended by other acts passed at the 2012 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2012, c. 614, cl. 2, provides: "That whenever any of the conditions, requirements, provisions, or contents of any section or chapter of Titles 26 , 31, 37.2, 55, and 64.1 or any other title of the Code of Virginia as such titles existed prior to October 1, 2012, are transferred in the same or modified form to a new section or chapter of Title 64.2 or any other title of the Code of Virginia and whenever any such former section or chapter is given a new number in Title 64.2 or any other title, all references to any such former section or chapter of Titles 26 , 31, 37.2, 55, and 64.1 or other title appearing in this Code shall be construed to apply to the new or renumbered section or chapter containing such conditions, requirements, provisions, contents, or portions thereof."

Acts 2012, c. 614, cl. 3, provides: "That the regulations of any department or agency affected by the revision of Titles 26 , 31, 37.2, 55, and 64.1 or such other titles in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations adopted under this act."

Acts 2012, c. 614, cl. 4, provides: "That the provisions of § 30-152 of the Code of Virginia shall apply to the revision of Title 64.2 so as to give effect to other laws enacted by the 2012 Session of the General Assembly, notwithstanding the delay in the effective date of this act."

Acts 2012, c. 614, cl. 5, provides: "That the repeal of Titles 26 and 31; Chapters 10 and 10.1 of Title 37.2; Chapter 2.1, Article 1.2 of Chapter 15, and Chapters 15.1, 16, 22, and 31 of Title 55; and Title 64.1, effective as of October 1, 2012, shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued, or accruing on or before such date, or any proceeding, prosecution, suit, or action pending on that day. Except as otherwise provided in this act, neither the repeal of Titles 26 and 31; Chapters 10 and 10.1 of Title 37.2; Chapter 2.1, Article 1.2 of Chapter 15, and Chapters 15.1, 16, 22, and 31 of Title 55; and Title 64.1 nor the enactment of Title 64.2 shall apply to offenses committed prior to October 1, 2012, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purpose of this enactment, an offense was committed prior to October 1, 2012, if any of the essential elements of the offense occurred prior thereto."

Acts 2012, c. 614, cl. 6, provides: "That any notice given, recognizance taken, or process or writ issued before October 1, 2012, shall be valid although given, taken, or to be returned to a day after such date, in like manner as if Title 64.2 had been effective before the same was given, taken, or issued."

Acts 2012, c. 614, cl. 7, provides: "That if any clause, sentence, paragraph, subdivision, or section of Title 64.2 shall be adjudged in any court of competent jurisdiction to be invalid, the judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, or section thereof directly involved in the controversy in which the judgment shall have been rendered, and to this end the provisions of Title 64.2 are declared severable."

Acts 2012, c. 614, cl. 8, provides: "That the provisions of former § 64.1-55, which provide that holographic wills admitted to probate in the Commonwealth prior to March 20, 1922, where the handwriting was proved by one disinterested witness instead of two disinterested witnesses are validated and are as binding and effectual as if proved by two witnesses shall continue to apply, and shall apply only, to such holographic wills."

Acts 2012, c. 614, cl. 9, provides: "That the provisions of former § 26-57, which provide that the actions of substitute trustees who have been appointed without sufficient notice or any notice to any interested party done prior to July 27, 1942, are validated and effectual as if notice was given shall continue to apply, and shall apply only, to the actions of such substitute trustees."

Acts 2012, c. 614, cl. 10, provides: "That the repeal of Titles 26 and 31; Chapters 10 and 10.1 of Title 37.2; Chapter 2.1, Article 1.2 of Chapter 15, and Chapters 15.1, 16, 22, and 31 of Title 55; and Title 64.1, effective as of October 1, 2012, shall not affect the validity, enforceability, or legality of any will, trust instrument, power of attorney, or other instrument or of any fiduciary relationship, or any right established or accrued under such instrument or by such relationship, that existed prior to such repeal."

Acts 2012, c. 614, cl. 12, provides: "That the provisions of this act shall become effective on October 1, 2012."

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981). For 1992 survey of property law in Virginia, see 26 U. Rich. L. Rev. 825 (1992). For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).

For annual survey of Virginia law article, "Wills, Trusts, and Estates," see 47 U. Rich. L. Rev. 343 (2012).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 1 Introductory. § 1.02 And Is the Creature of Law, et seq. Cox.

Virginia Forms (Matthew Bender). No. 15-101 Checklist for Will Interview, et seq.

CASE NOTES

"Will" defined. - The essence of the various definitions of the word "will," as applied to the disposition of one's property after death, by lexicographers, text writers and in the decided cases is: "The legal declaration of a person's mind as to the manner in which he would have property or estate disposed of after his death; the written instrument legally executed, by which a man makes disposition of his estate, to take effect after his death." Smith v. Smith, 112 Va. 205 , 70 S.E. 491 (1911) (decided under prior law) See Seefried v. Clarke, 113 Va. 365 , 74 S.E. 204 (1912) (decided under prior law).

This section and § 64.1-49 require the same formalities in the execution of a codicil as in the execution of the will itself. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948) (decided under prior law).

CIRCUIT COURT OPINIONS

Power of attorney. - If what distinguishes a valid will from a contract or an inter-vivos trust is the absence of any transfer of the testator's property during the testator's lifetime, it stands to reason that a power of attorney is equally distinguishable on those grounds. Shakeel v. Khanum, 62 Va. Cir. 188, 2003 Va. Cir. LEXIS 108 (Fairfax County 2003)(decided under prior law).

§ 64.2-101. Construction of generic terms.

In the interpretation of wills and trusts, adopted persons and persons born out of wedlock are included in class gift terminology or terms of relationship in accordance with rules for determining relationships for purposes of intestate succession unless a contrary intent appears on the face of the will or trust. In determining the intent of a testator or settlor, adopted persons are presumptively included in such terms as "children," "issue," "kindred," "heirs," "relatives," "descendents" or similar words of classification and are presumptively excluded by such terms as "natural children," "issue of the body," "blood kindred," "heirs of the body," "blood relatives," "descendents of the body" or similar words of classification. In the event that a fiduciary makes payment to members of a class to the exclusion of persons born out of wedlock of whose claim of paternity or maternity the fiduciary has no knowledge, the fiduciary shall not be held liable to such persons for payments made prior to knowledge of such claim. This section shall apply to all inter vivos trusts executed after July 1, 1978, and to all wills of decedents dying after July 1, 1978, regardless of when executed.

(1978, c. 647, § 64.1-71.1; 1987, c. 604; 2012, c. 614.)

Law review. - For 1987 survey of Virginia wills, trusts, and estates law, see 21 U. Rich. L. Rev. 855 (1987).

For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).

For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

CASE NOTES

Definition of "issue." - This section's abrogation of the common law definition of "issue," which did not include adopted persons, did not apply to trusts executed before 1978, because trusts were to be interpreted according to the law in effect at the time the trust was executed, so trusts executed before 1978 did not include adopted persons as "lineal descendants," as "lineal descendants" were synonymous with "issue." McGehee v. Edwards, 268 Va. 15 , 597 S.E.2d 99 (2004)(decided under prior law).

Article 2. General Provisions.

§ 64.2-102. Meaning of child and related terms.

If, for purposes of this title or for determining rights in and to property pursuant to any deed, will, trust or other instrument, a relationship of parent and child must be established to determine succession or a taking by, through, or from a person:

  1. An adopted person is the child of an adopting parent and not of the biological parents, except that adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent.
  2. The parentage of a child resulting from assisted conception is determined as provided in Chapter 9 (§ 20-156 et seq.) of Title 20.
  3. Except as otherwise provided by subdivision 1 or 2, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
    1. The biological parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage was prohibited by law, deemed null or void, or dissolved by a court; or
    2. Paternity is established by clear and convincing evidence, including scientifically reliable genetic testing, as set forth in § 64.2-103 ; however, paternity established pursuant to this subdivision is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.
  4. No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such child shall be recognized unless, within one year of the date of the death of such parent (i) an affidavit by such child or by someone acting for such child alleging such parenthood has been filed in the clerk's office of the circuit court of the jurisdiction wherein the property affected by such claim is located and (ii) an action seeking adjudication of parenthood is filed in an appropriate circuit court. The one-year limitation period runs notwithstanding the minority of such child; however, it does not apply in those cases where the relationship between the child born out of wedlock and the parent in question is established by (a) a birth record prepared upon information given by or at the request of such parent; (b) admission by such parent of parenthood before any court or in writing under oath; or (c) a previously entered judgment establishing such parent's paternity by a court having jurisdiction to determine his paternity.
  5. Unless otherwise specifically provided therein, an order terminating residual parental rights under § 16.1-283 terminates the rights of the parent to take from or through the child in question but the order does not otherwise affect the rights of the child, the child's kindred, or the parent's kindred to take from or through the parent or the rights of the parent's kindred to take from or through the child.

    (1978, c. 647, § 64.1-5.1; 1989, c. 466; 1994, c. 919; 1998, c. 603; 1999, c. 781; 2009, c. 449; 2012, c. 614.)

    I. General Consideration. II. Adopted Children. III. Illegitimate Children.

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provided that the amendment to former § 64.1-5.1 by Acts 1993, c. 930, cl. 1, would become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Law review. - For survey article, "Wills, Trusts, and Estates," see 44 U. Rich. L. Rev. 631 (2009).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.09 Children and Their Descendants. Cox.

I. GENERAL CONSIDERATION.

Editor's note. - Most of the cases below were decided under prior law.

CASE NOTES

The statute of descent and distribution is not a canon of presumptive intent. It cannot be employed for that purpose and thus have its terms substituted for testator's intent. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369 (1959).

"Issue" is defined as "natural descendants of a common ancestor." Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377 (1984).

II. ADOPTED CHILDREN.

Legislature may give and take away right to inherit. - The legislature may give to adopted children the right to share in the estate of their foster parents, and it may take this right away. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952).

And right is determined by law in force at death of ancestor. - The right of an adopted child to inherit is to be determined by the law in force at the death of the person from whom the inheritance is claimed. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952).

Statutory steps are essential to the creation of the artificial relationship of parent and child, out of which relationship alone the mutual rights of inheritance spring. The new relationship is founded upon the preceding actions of the parties, but it is created by the court's decree alone. Clarkson v. Bliley, 185 Va. 82 , 38 S.E.2d 22 (1946).

Adopted child is on same footing as natural child. - The words "from and through" as used in this section have a plain, simple and unmistakable meaning, with two significations, which cannot be ignored. The united words imply, in connection with inheritance, not only the obvious meaning that an adopted child shall inherit from the adopting parents, but that the adopting parents shall be the medium through which he may inherit from their relatives. Considered in connection with the broad and comprehensive language employed, they emphasize the specific intention to put an adopted child on the same footing as the natural child, thus giving him the right to take by representation what his adopting parent would have taken had he been alive, or what the natural child would have taken, had there been one, upon the death of his father intestate. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952).

And may inherit from remote ancestors. - A legally adopted child is entitled to inherit, according to the statutes of descent and distribution, the real estate of a deceased sister of his adopting father. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952).

In Fletcher v. Flanary , 185 Va. 409 , 38 S.E.2d 433 (1946), after stating that adopted children take from their foster parents, who die intestate, what children born in wedlock would take, the opinion states "but they take nothing as heirs or distributees from remote ancestors." The latter statement was not necessary to the decision of the case, which turned on the construction of a deed, and the Supreme Court does not adopt it as a construction of this section. Mott v. National Bank of Commerce, 190 Va. 1006 , 59 S.E.2d 97 (1950). See McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952).

And the statute of descents and distributions may not be altered by a private contract to adopt, whether written or oral. So a contract merely to adopt a child cannot be reasonably construed as conferring upon him the right to succeed to any part of the estate of another. Clarkson v. Bliley, 185 Va. 82 , 38 S.E.2d 22 (1946).

When used in a will the term "heir" is subject to different meanings dependent upon the over-all context of the will, construed to give effect to the testator's intent. It may include legal heirs under the statute of descent and distribution, or may include heirs of the body only, excluding heirs general and adopted children. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369 (1959); Merson v. Wood, 202 Va. 485 , 117 S.E.2d 661 (1961).

The words "but if she should die without heir" were not intended to include an adopted child. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369 (1959).

It would be unreasonable to say that a testatrix had in mind at the time of the execution of her will and at the time of her death that by the use of the word "heirs" she intended to include an adult adopted long after her death. Since there was nothing in the will to show such intention it was presumed that the testatrix intended that her property would go according to the law of natural descent, and not according to the relationship created by law. Merson v. Wood, 202 Va. 485 , 117 S.E.2d 661 (1961).

"Issue" does not include adopted children unless intent to include them is expressly or reasonably implied by the language of the will or may be reasonably inferred from extrinsic evidence properly before the court. Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377 (1984).

Right fixed by contract. - The legislature may from time to time change the course of descents and distributions. It may give to adopted children the right to participate in the intestate estates of their foster parents, and it may take this right away, but it cannot change a right which an ancestor by adoption can fix by contract. Fletcher v. Flanary, 185 Va. 409 , 38 S.E.2d 433 (1946).

III. ILLEGITIMATE CHILDREN.

Applicability. - Although the intestate decedent's children who were born out of wedlock were required to establish in a partition suit that the children were the decedent's children to prove their title to the subject real property under § 64.1-1, the statute of descents, the children were not bound by the requirements of subdivision 4 of § 64.1-5.1 applicable to the settlement of the decedent's estate. Jenkins v. Johnson, 276 Va. 30 , 661 S.E.2d 484 (2008).

This section and § 64.1-5.2 treat maternal kindred of illegitimates differently from paternal kindred. This classification is not regarded as suspect, and the Commonwealth need only show a rational basis for the disparate treatment. King v. Commonwealth, 221 Va. 251 , 269 S.E.2d 793 (1980).

Illegitimate son of a male devisee under a will was not "issue," as that term was used in the will in the phrase "and if he [the devisee] should die without issue." In view of the general rule that a gift to issue imports prima facie legitimate issue, excluding those who are illegitimate, the testator's presumed intent was that the devisee leave legitimate issue to prevent the land from passing to another named in the will. The testator undoubtedly knew of the devisee's illegitimate son when he executed the will and he demonstrated a desire that the land remain in the family. Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377 (1984).

Burden is on child regardless of form of proceeding, to establish paternity by showing that the putative father gave consent to someone, other than the mother, responsible for providing vital statistics for the child's birth certificate that his name be listed as the father. Johnson v. Branson, 228 Va. 65 , 319 S.E.2d 735 (1984).

Exhumation in determining parentage for inheritance purposes. - Use of the word "may" in subsection C of § 32.1-286 is not discretionary because there is nothing in the statute to suggest that the trial court has the discretion to deny an exhumation to a person who has met the statute's stated requirements; the only discretion is limited to determining whether a petitioner is a "party attempting to prove" parentage for inheritance purposes under §§ 64.1-5.1 and 64.1-5.2. Martin v. Howard, 273 Va. 722 , 643 S.E.2d 229 (2007).

Illegitimate child had right of substitution to her father's interest under his wife's will, where, prior to the father's death, former § 64.1-5, which would have prohibited the child from inheriting by or through her putative father, was effectively invalidated, and this section was enacted and former § 64.1-5 was repealed after her father's death and before the wife's death. The one-year limitation period in subdivision 3 of this section did not begin to run until the wife's death since the child's right to claim her inheritance in the wife's estate through her putative father did not accrue until the wife's death. The trial court erred in ruling that the statute began to run on its effective date (July 1, 1978) and in ruling that the child's claim was therefore time-barred, since this would have been a statutory taking of her property without due process in violation of both the federal and Virginia Constitutions. Marshall v. Bird, 230 Va. 89 , 334 S.E.2d 573 (1985).

Subsection (3)(b) does not deal with establishment of paternity, but rather, this clause deals with the right of a father or his kindred to inherit from or through a child born out of wedlock. Jones v. Eley, 256 Va. 198 , 501 S.E.2d 405 (1998).

Inheritance by and from illegitimates under former statutes. - See Garland v. Harrison, 35 Va. (8 Leigh) 368 (1837); Hepburn v. Dundas, 54 Va. (13 Gratt.) 219 (1856); Bennett v. Toler, 56 Va. (15 Gratt.) 588 (1860); Fitchett v. Smith, 78 Va. 524 (1884); Scott v. Raub, 88 Va. 721 , 14 S.E. 178 (1892); Blair v. Adams, 59 F. 243 (W.D Tex. 1893); Snidow v. Day, 145 Va. 721 , 134 S.E. 704 (1926).

Time limitations. - In a contested probate matter, a daughter born out of wedlock could not have shared in a decedent's estate because no action to adjudicate the alleged parent-child relationship was commenced within one year of the decedent's death; the fact that the daughter was initially included on a list of heirs filed by the administratrix was irrelevant. Belton v. Crudup, 273 Va. 368 , 641 S.E.2d 74 (2007).

CIRCUIT COURT OPINIONS

Child adopted in Pennsylvania could inherit from biological father in Virginia. - Intestate father's biological daughter who was adopted by her step-father after the biological mother's remarriage retained the right to inherit from the father's estate under Virginia law, § 64-55 and § 64.1-5.1, although she was adopted under Pennsylvania law, where adopted children did not retain such inheritance rights. In re Estate of Edwards, 77 Va. Cir. 351, 2009 Va. Cir. LEXIS 93 (Prince William County 2009).

Filing of an affidavit of parenthood in a will contest. - Circuit court denied an executor's motion for summary judgment because, although a claimant in a will contest failed to file an affidavit or an action seeking adjudication of parenthood within a year of the decedent's death, the claimant fell within a statutory exception to the filing requirement of subdivision 4 (i) of § 64.1-5.1 as the relationship between the claimant and her father was established by a birth record prepared upon information given by or at the request of her father. Thompson v. Banks, 61 Va. Cir. 539, 2003 Va. Cir. LEXIS 133 (Norfolk 2003).

Administration of estate by putative father. - Putative father who showed not only that he was the biological father of decedent, but also that he openly treated the decedent as his child, and that he did not refuse to support the decedent established his paternity, and thus, he was entitled to administer the decedent's estate. Williams v. Harris, 59 Va. Cir. 369, 2002 Va. Cir. LEXIS 245 (Fairfax County 2002).

Statute of limitations. - One-year limitation period in former § 64.1-5.1(4)(i) was not applicable where the relationship between the child and the parent was established by a birth record; the deoxyribonucleic acid testing documentation constituted such a birth record since the purported father had actual notice that the child was claiming paternity, and the father was an active participant in the process that was attempting to establish paternity. Freeman v. Manns,, 2013 Va. Cir. LEXIS 161 (Roanoke Aug. 14, 2013).

Retroactivity. - Amendments in 2009 to former § 64.1-5.1 do not operate retroactively; therefore, a failure to comply with the proof of paternity requirements did not bar a claim because the proof of paternity requirements did not apply to the determination of heirs to real property passing by intestate succession. Freeman v. Manns,, 2013 Va. Cir. LEXIS 161 (Roanoke Aug. 14, 2013).

§ 64.2-103. Evidence of paternity.

  1. For the purposes of this title, paternity of a child born out of wedlock shall be established by clear and convincing evidence, and such evidence may include the following:
    1. That he cohabited openly with the mother during all of the 10 months immediately prior to the time the child was born;
    2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth record of the child;
    3. That he allowed by a general course of conduct the common use of his surname by the child;
    4. That he claimed the child as his child on any statement, tax return, or other document filed and signed by him with any local, state, or federal government or any agency thereof;
    5. That he admitted before any court having jurisdiction to determine his paternity that he is the father of the child;
    6. That he voluntarily admitted paternity in writing under oath;
    7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or
    8. Other medical, scientific, or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.
  2. A judgment establishing a father's paternity made by a court having jurisdiction to determine his paternity is sufficient evidence of paternity for the purposes of this section.

    (1978, c. 647, § 64.1-5.2; 1989, c. 466; 1991, c. 479; 1999, c. 781; 2012, c. 614.)

Law review. - For survey article, "Wills, Trusts, and Estates," see 44 U. Rich. L. Rev. 631 (2009).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.09 Children and Their Descendants. Cox.

Editor's note. - The cases below were decided under former § 64.1-5.2 and prior law.

CASE NOTES

Section 64.1-5.1 and this section treat maternal kindred of illegitimates differently from paternal kindred. This classification is not regarded as suspect, and the Commonwealth need only show a rational basis for the disparate treatment. King v. Commonwealth, 221 Va. 251 , 269 S.E.2d 793 (1980).

Burden is on child, regardless of form of proceeding, to establish paternity by showing that the putative father gave consent to someone, other than the mother, responsible for providing vital statistics for the child's birth certificate that his name be listed as the father. Johnson v. Branson, 228 Va. 65 , 319 S.E.2d 735 (1984).

Exhumation in determining parentage for inheritance purposes. - Use of the word "may" in subsection C of § 32.1-286 is not discretionary because there is nothing in the statute to suggest that the trial court has the discretion to deny an exhumation to a person who has met the statute's stated requirements; the only discretion is limited to determining whether a petitioner is a "party attempting to prove" parentage for inheritance purposes under §§ 64.1-5.1 and 64.1-5.2. Martin v. Howard, 273 Va. 722 , 643 S.E.2d 229 (2007).

CIRCUIT COURT OPINIONS

Putative father entitled to administer estate. - Putative father established that he was the biological father of the decedent, and thus, was entitled to serve as the estate administrator of decedent's estate where he showed enough paternity factors to establish paternity by clear and convincing evidence. Williams v. Harris, 59 Va. Cir. 369, 2002 Va. Cir. LEXIS 245 (Fairfax County 2002).

Putative father's listing of decedent as his daughter, and designating her as a beneficiary on an enrollment form he submitted to the state retirement system shortly before the decedent died was further evidence that he established paternity, and thus, that he was entitled to administer decedent's estate. Williams v. Harris, 59 Va. Cir. 369, 2002 Va. Cir. LEXIS 245 (Fairfax County 2002).

§ 64.2-104. Incorporation by reference into a will, power of attorney, or trust instrument.

  1. The following original documents may be incorporated by reference into a will, power of attorney, or trust instrument:
    1. A letter or memorandum to the fiduciary or agent as to the interpretation of discretionary powers of distribution where the will, power of attorney, or trust instrument grants the fiduciary or agent the power to make distributions to beneficiaries in the discretion of the fiduciary or agent; and
    2. A letter or memorandum stating the views or directions of the maker of the will, power of attorney, or trust instrument as to the exercise of discretion by the fiduciary or agent in making health care decisions for the maker.
  2. No provision in the original document sought to be incorporated by reference under this section is enforceable if it contradicts or is inconsistent with a provision of the incorporating will, power of attorney, or trust instrument, including if it alters the possession or enjoyment of trust property or the income therefrom as directed in the trust instrument.
  3. This section shall not prevent the incorporation by reference of any writing into any other writing that would otherwise be effective under § 64.2-400 or under any other law of incorporation by reference.
  4. The maker shall sign and have notarized the documents referenced in subsection A and may prepare the documents before or after the execution of the will, power of attorney, or trust instrument.

    (2001, c. 369, § 64.1-45.2; 2002, c. 119; 2012, c. 614.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

Research References. - Virginia Forms (Matthew Bender). No. 13-717 Clause for Attorney's Will - Digital Assets; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-207 Bequest or Devise to Minor, et seq.; No. 15-236 Incorporation by Reference of Letter of Instruction to Trustee, et seq.

§ 64.2-105. Incorporation by reference of certain powers of fiduciaries into will or trust instrument.

  1. For purposes of this section:

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

    "Estate" includes all interests in the real or personal property of a decedent passing by will or by intestate succession.

    "Fiduciary" includes one or more individuals or corporations having trust powers, and includes the fiduciary of the estate of a decedent and the trustee of an inter vivos or testamentary trust. Any substitute, added, or successor fiduciary shall have all of the powers hereby provided for the fiduciary named in the will or trust instrument.

    "Hazardous substances" means any substances defined as hazardous or toxic or otherwise regulated by any environmental law.

  2. The following powers, in addition to all other powers granted by law, may be incorporated in whole or in part in any will or trust instrument by reference to this section:
    1. To keep and retain any or all investments and property, real, personal or mixed, including stock in the fiduciary, if the fiduciary is a corporation, in the same form as they are at the time the investments and property come into the custody of the fiduciary, regardless of the character of the investments and property, whether they are such as then would be authorized by law for investment by fiduciaries, or whether a disproportionately large part of the trust or estate remains invested in one or more types of property, for such time as the fiduciary deems best, and to dispose of such property by sale, exchange, or otherwise as and when such fiduciary deems advisable.
    2. At the discretion of the fiduciary, to receive additions to the estate from any source, in cash or in kind, and to hold, administer, and distribute such additions as a part of and under the same terms and conditions as the estate then currently held.
    3. To sell, assign, exchange, transfer and convey, or otherwise dispose of, any or all of the investments and property, real, personal or mixed, that are included in, or may at any time become part of the trust or estate upon such terms and conditions as the fiduciary, in his absolute discretion, deems advisable, at either public or private sale, either for cash or deferred payments or other consideration, as the fiduciary determines. For the purpose of selling, assigning, exchanging, transferring, or conveying such investments and property, the fiduciary has the power to make, execute, acknowledge, and deliver any and all instruments of conveyance, deeds of trust, or assignments in such form and with warranties and covenants as the fiduciary deems expedient and proper; and in the event of any sale, conveyance, exchange, or other disposition of any of the trust or estate, the purchaser shall not be obligated in any way to see to the application of the purchase money or other consideration passing in connection therewith.
    4. To grant, sell, transfer, exchange, purchase, or acquire options of any kind on property held by such trust or estate or acquired or to be acquired by such trust or estate or held or owned by any other person.
    5. To lease any or all of the real estate that is included in or may at any time become a part of the trust or estate upon such terms and conditions as the fiduciary in his sole judgment and discretion deems advisable. Any lease made by the fiduciary may extend beyond the term of the trust or administration of the estate and, for the purpose of leasing such real estate, the fiduciary has the power to make, execute, acknowledge, and deliver any and all instruments, in such form and with such covenants and warranties as the fiduciary deems expedient and proper.
    6. To vote any stocks, bonds, or other securities held by the fiduciary at any meeting of stockholders, bondholders, or other security holders, and to delegate the power to so vote to attorneys-in-fact or proxies under power of attorney, restricted or unrestricted.
    7. To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as to the fiduciary seems advisable, including the power to borrow from the fiduciary, if the fiduciary is a bank, for the purpose of paying (i) debts, taxes, or other charges against the trust or estate or any part thereof and (ii) with prior approval of the court for any proper purpose of the trust or estate. The fiduciary has the power to mortgage or pledge such portion of the trust or estate as may be required to secure such loans and, as maker or endorser, to renew existing loans.
    8. To make loans or advancements to the executor or other representative of the grantor's estate in case such executor or other representative is in need of cash with which to pay taxes, claims, or other indebtedness of the grantor's estate; but no assets acquired from a qualified retirement benefit plan under § 2039(c) of the Internal Revenue Code shall be used to make such loans or advancements, and such assets shall be segregated and held separately until all claims against the estate for debts of the decedent or claims of administration have been satisfied. Such loans or advancements may be secured or unsecured, and the trustee is not liable in any way for any loss resulting to the trust or estate by reason of the exercise of this authority.
    9. To compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the trust or estate as the fiduciary deems best, and his decision is conclusive.
    10. To make distributions in cash or in kind or partly in each at valuations to be determined by the fiduciary, whose decision as to values shall be conclusive.
    11. To repair, alter, improve, renovate, reconstruct, or demolish any of the buildings on the real estate held by the fiduciary and to construct such buildings and improvements thereon as the fiduciary in his discretion deems advisable.
    12. To employ and compensate, out of the principal or income, or both as to the fiduciary seems proper, agents, accountants, brokers, attorneys-in-fact, attorneys-at-law, tax specialists, licensed real estate brokers, licensed salesmen, and other assistants and advisors deemed by the fiduciary to be needful for the proper administration of the trust or estate, and to do so without liability for any neglect, omission, misconduct, or default of any such agent or professional representative provided he was selected and retained with reasonable care.
    13. To rely upon any affidavit, certificate, letter, notice, telegram, or other paper or upon any telephone conversation believed by the fiduciary to be genuine and upon any other evidence believed by the fiduciary to be sufficient, and to be protected and held harmless for all payments or distributions required to be made hereunder if made in good faith and without actual notice or knowledge of the changed condition or status of any person receiving payments or other distributions upon a condition.
    14. To retain any interest held by the fiduciary in any business, whether as a stockholder or security holder of a corporation, a partner, a sole proprietor, or otherwise, for any length of time, without limitations, solely at the risk of the trust or estate and without liability on the part of the fiduciary for any losses resulting therefrom; including the power to (i) participate in the conduct of such business and take or delegate to others discretionary power to take any action with respect to its management and affairs that an individual could take as the owner of such business, including the voting of stock and the determination of any or all questions of policy; (ii) participate in any incorporation, reorganization, merger, consolidation, recapitalization, or liquidation of the business; (iii) invest additional capital in, subscribe to additional stock or securities of, and loan money or credit with or without security to, such business out of the trust or estate property; (iv) elect or employ as directors, officers, employees, or agents of such business, and compensate, any persons, including the fiduciary or a director, officer, or agent of the fiduciary; (v) accept as correct financial or other statements rendered by the business from time to time as to its conditions and operations except when having actual notice to the contrary; (vi) regard the business as an entity separate from the trust or estate with no duty to account to any court as to its operations; (vii) deal with and act for the business in any capacity, including any banking or trust capacity and the loaning of money out of the fiduciary's own funds, and to be compensated therefor; and (viii) sell or liquidate such interest or any part thereof at any time. If any business shall be unincorporated, contractual and tort liabilities arising out of such business shall be satisfied, first, out of the business, and second, out of the trust or estate; but in no event shall there be a liability of the fiduciary, and if the fiduciary is held liable, the fiduciary is entitled to indemnification from, first, the business, and second, the trust or estate. The fiduciary is entitled to such additional compensation as is commensurate with the time, effort, and responsibility involved in his performance of services with respect to such business. Such compensation for services rendered to the business may be paid by the fiduciary from the business or from other assets or from both as the fiduciary, in his discretion, determines to be advisable; however, the amount of such additional compensation is subject to the final approval of the court.
    15. To do all other acts and things not inconsistent with the provisions of the will or trust in which these powers are incorporated that the fiduciary deems necessary or desirable for the proper management of the trusts herein created, in the same manner and to the same extent as an individual could do with respect to his own property.
    16. To hold property in the fiduciary's name or in the name of nominees.
    17. During the minority, incapacity, or the disability of any beneficiary, and in the sole discretion of the fiduciary, to distribute income and principal to the beneficiary in any of the following ways: (i) directly to the beneficiary; (ii) to a relative, friend, guardian, conservator, or committee, to be expended by such person for the education, maintenance, support, or benefit of the beneficiary; (iii) by the fiduciary expending the same for the education, maintenance, support, or benefit of the beneficiary; (iv) to an adult person or bank authorized to exercise trust powers as custodian for a minor beneficiary under the Uniform Transfers to Minors Act (§ 64.2-1900 et seq.) to be held by such custodian under the terms of such act; or (v) to an adult person or bank authorized to exercise trust powers as custodial trustee for a beneficiary who is incapacitated as defined in § 64.2-900 , under the Uniform Custodial Trust Act (§ 64.2-900 et seq.) to be held as custodial trustee under the terms of such act.
    18. To continue and carry on any farming operation transferred to the fiduciary and to operate such farms and any other farm which may be acquired, including the power to (i) operate the farm with hired labor, tenants, or sharecroppers; (ii) hire a farm manager or a professional farm management service to supervise the farming operations; (iii) lease or rent the farm for cash or for a share of the crops; (iv) purchase or otherwise acquire farm machinery, equipment, and livestock; (v) construct, repair, and improve farm buildings of all sorts necessary, in the fiduciary's judgment, for the operation of the farm; (vi) make loans or advances or to obtain loans or advances from any source, including the fiduciary at the prevailing rate of interest for farm purposes including for production, harvesting, or marketing, for the construction, repair, or improvement of farm buildings, or for the purchase of farm machinery, equipment, or livestock; (vii) employ approved soil conservation practices in order to conserve, improve, and maintain the fertility and productivity of the soil; (viii) protect, manage, and improve the timber and forest on the farm and sell the timber and forest products when it is to the best interest of the estate or trust; (ix) ditch and drain damp or wet fields and areas of the farm when needed; (x) engage in livestock production, if it is deemed advisable, and to construct such fences and buildings and plant such pastures and crops as may be necessary to carry on a livestock program; (xi) execute contracts, notes, and chattel mortgages relating to agriculture with the Commodity Credit Corporation, the United States Secretary of Agriculture, or any other officer or agency of the federal or state government, to enter into acreage reduction agreements, to make soil conservation commitments, and to do all acts necessary to cooperate with any governmental agricultural program; and (xii) in general, employ the methods of carrying on the farming operation that are in common use by the community in which the farm is located. As the duties that the fiduciary is requested to assume with respect to farming operations may considerably enlarge and increase the fiduciary's usual responsibility and work as fiduciary, the fiduciary is entitled to such additional reasonable compensation as is commensurate with the time, effort, and responsibility involved in his performance of such services.
    19. To purchase and hold life insurance policies on the life of any beneficiary, or any person in whom the beneficiary has an insurable interest, and pay the premiums thereon out of income or principal as the fiduciary deems appropriate; provided, however, that the decision of the beneficiary of any trust otherwise meeting the requirements of § 2056(b)(5) of the Internal Revenue Code of 1954, as amended, shall control in respect to the purchase or holding of a life insurance policy by the trustee of such trust.
    20. To make any election, including any election permitted by statutes enacted after the date of execution of the will or trust instrument, authorized under any law requiring, or relating to the requirement for, payment of any taxes or assessments on assets or income of the estate or in connection with any fiduciary capacity, regardless of whether any property or income is received by or is under the control of the fiduciary, including, elections concerning the timing of payment of any such tax or assessment, the valuation of any property subject to any such tax or assessment, and the alternative use of items of deduction in computing any tax or assessment.
    21. To comply with environmental law:
      1. To inspect property held by the fiduciary, including interests in sole proprietorships, partnerships, or corporations and any assets owned by any such business enterprise, for the purpose of determining compliance with environmental law affecting such property and to respond to a change in, or any actual or threatened violation of, any environmental law affecting property held by the fiduciary;
      2. To take, on behalf of the estate or trust, any action necessary to respond to a change in, or prevent, abate, or otherwise remedy any actual or threatened violation of, any environmental law affecting property held by the fiduciary, either before or after the initiation of an enforcement action by any governmental body;
      3. To refuse to accept property in trust if the fiduciary determines that any property to be transferred to the trust either is contaminated by any hazardous substance or is being used or has been used for any activity directly or indirectly involving any hazardous substance which could result in liability to the trust or otherwise impair the value of the assets held therein;
      4. To disclaim any power granted by any document, statute, or rule of law that, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental law; and
      5. To charge the cost of any inspection, review, abatement, response, cleanup, or remedial action authorized herein against the income or principal of the trust or estate.
    22. To resign as fiduciary if the fiduciary reasonably believes that there is or may be a conflict of interest between him in his fiduciary capacity and in his individual capacity because of potential claims or liabilities which may be asserted against him on behalf of the trust or estate because of the type or condition of assets held therein.
  3. For the purposes of this section, unless the will or trust instrument expresses a contrary intention, the incorporation by reference of powers enumerated by this statute shall refer to those powers existing at the time of death and reference to powers under the Uniform Gifts to Minors Act in an instrument executed prior to July 1, 1989, shall be construed to refer to the Uniform Transfers to Minors Act (§ 64.2-1900 et seq.).
  4. This section shall not be construed to affect the application of the standard of judgment and care as set forth in the Uniform Prudent Investor Act (§ 64.2-780 et seq.).
  5. In the event that the will or trust instrument contains a provision in favor of a surviving spouse of the testator or grantor, the powers enumerated in this section shall not be construed or interpreted to cause the bequest to fail to qualify for the marital deduction permitted under the federal estate tax law, unless the will or trust instrument shall specifically provide to the contrary. A fiduciary acting under a construction or interpretation of a power, where such action is otherwise reasonable under the circumstances, shall incur no responsibility for acts taken in good faith that are otherwise thereafter contended to cause disqualification for the marital deduction. This subsection applies without regard to when the will or trust was executed or probated or when the testator died in relation to the effective date of this section or amendments thereto.

    (Code 1950, § 64-57.2; 1966, c. 425; 1968, c. 656, § 64.1-57; 1970, cc. 65, 296; 1972, c. 788; 1973, c. 94; 1974, c. 659; 1976, c. 419; 1982, cc. 525, 549, 551; 1989, c. 736; 1990, c. 782; 1992, c. 584; 1994, c. 476; 1997, c. 801; 1999, cc. 772, 975; 2003, cc. 30, 42, 253; 2012, c. 614.)

Editor's note. - 26 U.S.C. § 2039(c), referred to in subdivision B 8 above, was repealed in 1986 by P.L. 99-514.

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970); for the year 1971-1972, see 58 Va. L. Rev. 1363 (1972); for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973); for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974); for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976); for the year 1979-1980, see 67 Va. L. Rev. 369 (1981); for the year 1989, see 23 U. Rich. L. Rev. 859 (1989). For article on the Uniform Custodial Trust Act, see 24 U. Rich. L. Rev. 65 (1989).

For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

For survey article, "Wills, Trusts, and Estates," see 44 U. Rich. L. Rev. 631 (2009).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.01 Introductory, et seq. Cox.

Virginia Forms (Matthew Bender). No. 13-715 Clause for Attorney's Will Incorporating Agreement Regarding Law Practice; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-207 Bequest or Devise to Minor, et seq.; No. 15-301 Revocable Inter Vivos Trust Agreement, et seq.; No. 15-470 Order Granting Fiduciary Powers Pursuant to Va. Code Ann. § 64.2-106 .

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 60.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

"Prudent man rule" governs trustee's obligations regarding productivity of assets. - Although the management discretion afforded a trustee under this section and former § 55-253 et seq. is extensive, that discretion is subject to the requirements of the "prudent man rule" under former § 26-45.1; the restatement principles define a trustee's obligations under the "prudent man rule" regarding productivity of trust assets. Sturgis v. Stinson, 241 Va. 531 , 404 S.E.2d 56 (1991).

Executor of decedent's estate may seek accounting by trustees. - By incorporating the powers listed in § 64.1-57, a testator does not thereby exclude "all other powers granted by law" from the executor. The right to compel an accounting from trustees is such an "other power granted by law" pursuant to §§ 8.01-31 and 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308 (2006).

Fiduciaries not liable for actions of agents. - The language of subdivision (1) (k) evinces an intent of the legislature to shield certain fiduciaries from liability for the actions of the agents they select to aid them in the administration of their duties but does not preclude a fiduciary from being liable for his own negligent conduct. Roberts v. Roberts, 260 Va. 660 , 536 S.E.2d 714 (2000).

Subdivision (1) (k), shielding fiduciaries from liability for the acts or omissions of agents hired to assist in the administration of the trust or estate, would be rendered meaningless if a fiduciary could hire an agent whose expertise is essential to managing an estate or trust and then be held liable for relying on the expertise provided by that agent. Roberts v. Roberts, 260 Va. 660 , 536 S.E.2d 714 (2000).

Executor insulated from liability for acts of agent. - A surcharge was improperly assessed against the executor of an estate for failing to include certain bearer bonds in the estate tax return, which had resulted in a deficiency being charged against the estate by the Internal Revenue Service, where the executor, when he realized that administration of the estate was well beyond his expertise, had hired a bank to act as his agent and prepare the estate tax return. Roberts v. Roberts, 260 Va. 660 , 536 S.E.2d 714 (2000).

"Estate" in subdivision (1)(b) included decedent's real property. - Circuit court erred in its restrictive interpretation of the term "estate" in subdivision (1)(b) of § 64.1-57 as not including real property owned by the intestate decedent at the time of her death. Although title to the real property vested immediately in her heirs, it was still part of the estate and could be sold by the administrator if he was granted the power pursuant to § 64.1-57.1. In re Bullock, No. 021740, 2003 Va. LEXIS 118 (Ct. of Appeals Apr. 17, 2003).

CIRCUIT COURT OPINIONS

Editor's note. .

The cases below were decided under former Title 64.1 and prior law.

Power to sell assets granted. - Due to the fact that the value of claims against the estate exceeded the value of assets on hand, the executor was granted the powers enumerated in § 64.1-57(1)(b), (1)(b1) to sell assets to raise the funds needed. In re Estate of Carter, 58 Va. Cir. 555, 2002 Va. Cir. LEXIS 176 (Loudoun County 2002).

No authority to purchase real estate from own trust. - In a trustee's suit against his sisters for the conveyance of lots that he bought from his mother due to her need for funds, the court held that the trustee was not entitled to the lots because, pursuant to this section, he could not purchase real estate from his own trust. Baldwin v. Harper,, 2003 Va. Cir. LEXIS 368 (Nelson County Oct. 17, 2003).

No contract for trustee to purchase lots from trust. - In a trustee's action against defendants for the conveyance of two lots that he purchased from the trust, the court awarded judgment to defendants pursuant to this section because there was no contract between the trustee and the beneficiary for the purchase of the lots. Because there was no contract, there could be no credit to the trustee for money paid or advanced. Baldwin v. Harper,, 2004 Va. Cir. LEXIS 266 (Nelson County Feb. 4, 2004).

No authority to sell property not in estate under will. - Section 64.1-57 (1) (b) clearly and unambiguously allows a court to grant to a personal representative the power to sell real property which may be included in, or may at any time become part of an estate, but this does not include real property which a decedent has not made part of her estate, under the terms of her will. In re Estate of Trent, 58 Va. Cir. 83, 2001 Va. Cir. LEXIS 395 (Richmond 2001).

No authority to convey trust property without consideration. - Predecessor trustee's transfer of a home owned by the trust without consideration was authorized because, although § 64.1-57 did not authorize the conveyance of trust property without consideration, the deed that transferred the home to the trust was a valid amendment to the trust, and authorized the predecessor trustee's transfer of the home. Pitzer v. Martin,, 2007 Va. Cir. LEXIS 261 (Fairfax County Dec. 5, 2007).

No oral contract for occupancy found. - Trial court granted a trust the possession of a residence because the court found that there was not an oral contract between the trust and the occupant of the residence that permitted the occupant to reside therein absent a written lease. Furthermore, the trust incorporated the statutory provision giving the trustee absolute discretion in the management of the trust. Stanley v. Stanley, 102 Va. Cir. 366, 2019 Va. Cir. LEXIS 353 (Orange County Aug. 16, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Distribution by fiduciary to custodial trustee does not require court approval. - Section 55-34.5 does not require a fiduciary exercising administrative power under § 64.1-57(1)(p)(5) to obtain court approval before distributing to a custodial trustee under the Virginia Uniform Custodial Trust Act an amount in excess of $10,000. See opinion of Attorney General to The Honorable William J. Howell, Member, House of Delegates, 00-017 (4/18/00).

§ 64.2-106. Grant of certain powers to personal representative or trustee by circuit court.

  1. Upon the motion of a personal representative or trustee, a circuit court may grant to the personal representative or trustee all or a part of the powers that may be incorporated by reference pursuant to § 64.2-105 . If there is more than one personal representative or trustee, the court may specify as to whether the consent of all personal representatives or trustees or a majority thereof shall be required to act, and in absence of such specification, the consent of all such personal representatives or trustees to act shall be required.
  2. Such motion shall be filed in the circuit court in which the personal representative or trustee qualified, or if there was no qualification, the circuit court for the jurisdiction in which the grantor resides or resided at the time of his death, a trustee resides, or a corporate trustee has an office. Such motion may be ex parte; however, the court, in its discretion, may require such notice to and the convening of interested parties as it may deem proper in each case. Notwithstanding the granting of or the failure to grant such powers, the court shall have continuing jurisdiction to confer powers in addition to those previously granted or to revoke any or all such powers previously granted by the court. Such additional grant or revocation may also be ex parte.
  3. The court may, in granting or withholding such powers, consider (i) whether the personal representative or trustee was nominated by the decedent, the grantor, or the beneficiaries; (ii) the number and capacity of the beneficiaries and their ability or inability to consent to the acts of the personal representative or trustee which are otherwise within the scope of § 64.2-105 ; (iii) the relationship of the personal representative or trustee to the beneficiaries; (iv) the character of the estate to be administered, including any real estate which would be within the scope of the powers granted by the provisions of § 64.2-106 ; and (v) the capacity of the personal representative or trustee to perform under the powers conferred and to answer for any acts for which he might be held accountable under his bond. The court, in its discretion, may attach further conditions to such grant of power in any manner which it shall deem necessary and proper.
  4. In no case shall a court grant any powers, if the grant of such powers would be contrary to the intention of the testator or grantor as implied from or as expressed in the will or trust instrument, or would otherwise be inconsistent with the disposition made in the will or trust instrument.

    (1976, c. 437, § 64.1-57.1; 1985, c. 345; 1988, c. 345; 1999, c. 995; 2012, c. 614.)

Law review. - For survey of Virginia law on trusts and estates for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For survey article, "Wills, Trusts, and Estates," see 44 U. Rich. L. Rev. 631 (2009).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.01 Introductory, et seq. Cox.

Virginia Forms (Matthew Bender). No. 15-470 Order Granting Fiduciary Powers Pursuant to Va. Code Ann. § 64.2-106 .

CASE NOTES

Trial court's obligations in domestic matter when conservator was appointed. - Upon notification that a husband had died, it was incumbent upon the court to abate the action, transfer the funds in the possession of the conservator to husband's personal representative, and determine the reasonable amount of the conservator's fee for which husband was responsible. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004)(decided under prior law).

Administrator could sell real property belonging to the decedent. - Circuit court erred in its restrictive interpretation of the term "estate" in subdivision (1)(b) of § 64.1-57 as not including real property owned by the intestate decedent at the time of her death. Although title to the real property vested immediately in her heirs, it was still part of the estate and could be sold by the administrator if he was granted the power pursuant to § 64.1-57.1. In re Bullock, No. 021740, 2003 Va. LEXIS 118 (Ct. of Appeals Apr. 17, 2003)(decided under prior law).

CIRCUIT COURT OPINIONS

Administrator could not be granted the power to sell real property that testatrix did not make part of her estate. - Section 64.1-57 does not allow an administrator to sell real property that is not part of a decedent's estate; thus, where a testatrix's will directed the payment of her debts, but did not make her real property part of her estate, the real property vested in her devisees upon her death, and, accordingly, the trial court denied the estate administrator's petition pursuant to §§ 64.1-57 (1) (b) and 64.1-57.1, to grant the administrator the power to sell the real property to satisfy the debts of the estate. In re Estate of Trent, 58 Va. Cir. 83, 2001 Va. Cir. LEXIS 395 (Richmond 2001)(decided under prior law).

Spouse granted limited powers. - Spouse was properly granted only a limited power to convey a home owned by a decedent to the decedent's children in light of the relationship among the beneficiaries; the spouse was denied more extensive powers under § 64.1-57.1. Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008)(decided under prior law).

§ 64.2-107. Power granted to personal representatives to make election regarding marital deduction as to certain qualifying terminable interest property; binding effect of election.

  1. For purposes of this section, "personal representative" includes the trustee of a qualified terminable interest property trust if there has been no qualification of a personal representative for the estate of the decedent who created the trust.
  2. Personal representatives, whether heretofore or hereafter qualified, are hereby granted the power to make the election on the return of their decedents as required pursuant to § 2056(b)(7) of the Internal Revenue Code of 1954, as amended, to obtain the marital deduction for bequests or devises of qualifying terminable interest property in favor of the surviving spouse created under a will or inter vivos trust of the decedent.
  3. If the personal representative determines in good faith to make or not to make such an election and does not act imprudently in making such decision, the decision shall be final and binding upon all of the beneficiaries of the estate.

    (1982, c. 551, § 64.1-57.2; 1983, c. 54; 1999, c. 197; 2012, c. 614.)

§ 64.2-108. Power granted to personal representatives and trustees to donate conservation or open-space easements.

Personal representatives and trustees, whether heretofore or hereafter qualified or appointed, are hereby granted the power to donate a conservation easement as provided in the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or an open-space easement as provided in the Open-Space Land Act (§ 10.1-1700 et seq.) on any real property of their decedents and settlors, in order to obtain the benefit of the estate tax exclusion allowed under § 2031(c) of the Internal Revenue Code of 1986, as amended, provided they have the written consent of all of the heirs, beneficiaries, and devisees whose interests are affected thereby. Upon petition of the personal representative or trustee, the circuit court may give consent on behalf of any unborn, unascertained, or incapacitated heirs, beneficiaries, or devisees whose interests are affected thereby after determining that (i) the donation of the conservation easement will not adversely affect such heirs, beneficiaries, or devisees or (ii) it is more likely than not that such heirs, beneficiaries, or devisees would consent if they were before the court and capable of giving consent. A guardian ad litem shall be appointed to represent the interests of any unborn, unascertained, or incapacitated persons.

(1999, cc. 503, 527, § 64.1-57.3; 2009, c. 588; 2012, c. 614.)

Law review. - For survey article, "Wills, Trusts, and Estates," see 44 U. Rich. L. Rev. 631 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 16-576 Deed of Gift of Conservation Easement, et seq.; No. 16-6030 Certificate of Trust.

§ 64.2-108.1. References to former sections, articles, or chapters.

When any will, trust instrument, power of attorney, or other instrument refers to a section of the Code that, at the time the reference was made in the will, trust instrument, power of attorney, or other instrument, had been repealed and transferred in the same or a modified form to a new section, article, or chapter in Title 64.2, the reference shall be construed to refer to the latter in the absence of any intent to the contrary.

(2013, c. 89.)

The number of this section was assigned by the Virginia Code Commission, the number in the 2013 act having been § 64.2-109 .

Law review. - For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 16 Construction of the Will. § 16.07 The Law Applicable; Chapter 25 Personal Representatives; Rights and Duties. § 25.03 Powers of Personal Representatives - Incorporation by Reference. Cox.

§ 64.2-108.2. Provision in certain trust void.

  1. For purposes of this section, "medical assistance" and "medical assistance benefits" mean benefits payable under the state plan for medical assistance services.
  2. Except as provided in subsection C, a provision in any inter vivos trust created for the benefit of the grantor that provides directly or indirectly for the suspension, termination, or diversion of the principal, income, or other beneficial interest of the grantor in the event that he should apply for medical assistance or require medical, hospital, or nursing care or long-term custodial, nursing, or medical care shall be against public policy and ineffective as against the Commonwealth. The assets of the trust, both principal and interest, shall be distributed as though no such application had been made. The provisions of this subsection shall apply without regard to the irrevocability of the trust or the purpose for which the trust was created.
  3. Subsection B shall not apply to any trust with a corpus of $25,000 or less. If the corpus of any such trust exceeds $25,000, $25,000 of the trust shall be exempt from the provisions of subsection B. However, if the grantor has created more than one trust as described in subsection B, the $25,000 exemption shall be prorated among the trusts. Further, if the grantor made uncompensated transfers, as defined in § 20-88.02 , within 30 months of applying for Medicaid benefits and no payments were ordered pursuant to subsection D of § 20-88.02 , the $25,000 exemption under this subsection shall not apply.
  4. The exemption provided by subsection C shall not apply to any trust created on or after August 11, 1993.
  5. To the extent any trust created between August 11, 1993, and July 1, 1994 would but for subsection D be entitled to the exemption provided by subsection C, the grantor may revoke such trust notwithstanding any irrevocability in the terms of such trust. Nothing contained in this subsection shall be construed to authorize the grantor to effect the vested rights of any beneficiary of such trust without the express written consent of such beneficiary.
  6. The provisions of subsection B shall not apply to an irrevocable inter vivos trust to the extent it is created for the purpose of paying the grantor's funeral and burial expenses and is funded in an amount and manner allowable as a resource in determining eligibility for medical assistance benefits. In the event any amount remains in the trust upon payment of the funeral or burial arrangements provided to or on behalf of such individual, the Commonwealth shall receive all amounts remaining in such trust up to an amount equal to the total medical assistance paid on behalf of the individual.

    (1993, c. 701, § 55-19.5; 1994, c. 692; 1998, c. 735; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, effective October 1, 2019, recodified former Title 55 as Title 55.1. As part of the recodification, former § 55-19.5 was relocated to Title 64.2 as this section.

Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Article 3. Privacy Expectation Afterlife and Choices Act.

§§ 64.2-109 through 64.2-115.

Repealed by Acts 2017, cc. 33 and 80, cl. 2.

Cross references. - For current similar provisions, see § 64.2-116 et seq.

Editor's note. - Former §§ 64.2-109 through 64.2-115, regarding the Privacy Expectation Afterlife and Choices Act, were derived from Acts 2013, cc. 280, 369; 2015, c. 657.

Article 3.1. Uniform Fiduciary Access to Digital Assets Act.

§ 64.2-116. Definitions.

As used in this article, unless the context requires otherwise:

"Account" means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.

"Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise. "Agent" includes an original agent, a coagent, a successor agent, and a person to which an agent's authority is delegated.

"Carries" means engages in the transmission of an electronic communication.

"Catalog of electronic communications" means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.

"Conservator" means a person appointed by a court to manage the estate of a living individual. "Conservator" includes a limited conservator.

"Content of an electronic communication" means information concerning the substance or meaning of the communication that (i) has been sent or received by a user; (ii) is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and (iii) is not readily accessible to the public.

"Court" means the circuit court for the county or city having jurisdiction over the fiduciary in matters relating to the content of this article.

"Custodian" means a person who carries, maintains, processes, receives, or stores a digital asset of a user.

"Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.

"Digital asset" means an electronic record in which an individual has a right or interest. "Digital asset" does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

"Electronic communication" has the same meaning as the definition provided in 18 U.S.C. § 2510(12).

"Electronic communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.

"Fiduciary" means an original, additional, or successor personal representative, conservator, guardian, agent, or trustee.

"Guardian" means a person appointed by a court to manage the person of a living individual adult pursuant to Chapter 20 (§ 64.2-2000 et seq.) or a person appointed by a court to manage the estate of a minor pursuant to Chapter 17 (§ 64.2-1700 et seq.). "Guardian" includes a limited guardian.

"Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or something that is substantially similar.

"Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.

"Person" means an individual; estate; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity.

"Personal representative" means an executor, administrator, curator, designated successor or successor under the Virginia Small Estate Act (§ 64.2-600 et seq.), or person that performs substantially the same function under the laws of the Commonwealth other than this article.

"Power of attorney" means a record that grants an agent authority to act in the place of a principal.

"Principal" means an individual who grants authority to an agent in a power of attorney.

"Protected person" means an individual for whom a conservator or guardian has been appointed. "Protected person" includes an individual for whom an application for the appointment of a conservator or guardian is pending.

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"Remote computing service" means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. § 2510(14).

"Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian.

"Trustee" means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. "Trustee" includes a successor trustee.

"User" means a person that has an account with a custodian.

"Will" includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument.

(2017, cc. 33, 80.)

Uniform law cross references. - Arizona: A.R.S. § 14-13101 et seq.

California: Cal Prob Code § 870 et seq.

Colorado: C.R.S. 15-1-1501 et seq.

Hawaii: HRS § 556A-1 et seq.

Idaho: Idaho Code § 15-14-101 et seq.

Illinois: 755 ILCS 70/1 et seq.

Indiana: Burns Ind. Code Ann. § 32-39-1-1 et seq.

Minnesota: Minn. Stat. § 521A.01 et seq.

Nebraska: R.R.S. Neb. § 30-501 et seq.

North Carolina: N.C. Gen. Stat. § 36F-1 et seq.

Tennessee: Tenn. Code Ann. § 35-8-101 et seq.

Washington: Rev. Code Wash. (ARCW) § 11.120.010 et seq.

Wyoming: Wyo. Stat. § 2-3-1001 et seq.

Law review. - For article, "Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets," see 24 Geo. Mason L. Rev. 183 (2016).

§ 64.2-117. Applicability.

  1. This article applies to:
    1. A fiduciary acting under a will or power of attorney executed before, on, or after July 1, 2017;
    2. A personal representative acting for a decedent who died before, on, or after July 1, 2017;
    3. A conservatorship proceeding commenced before, on, or after July 1, 2017;
    4. A guardianship proceeding commenced before, on, or after July 1, 2017; and
    5. A trustee acting under a trust created before, on, or after July 1, 2017.
  2. This article applies to a custodian if the user resides in the Commonwealth or resided in the Commonwealth at the time of the user's death.
  3. This article does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.

    (2017, cc. 33, 80.)

§ 64.2-118. User direction for disclosure of digital assets.

  1. A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
  2. If a user has not used an online tool to give direction under subsection A or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
  3. A user's direction under subsection A or B overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

    (2017, cc. 33, 80.)

§ 64.2-119. Terms-of-service agreement.

  1. This article does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
  2. This article does not give a fiduciary or a designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
  3. A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under § 64.2-118 . (2017, cc. 33, 80.)

§ 64.2-120. Procedure for disclosing digital assets.

  1. When disclosing digital assets of a user under this article, the custodian may, at its sole discretion:
    1. Grant a fiduciary or designated recipient full access to the user's account;
    2. Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
    3. Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
  2. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this article.
  3. A custodian need not disclose under this article a digital asset deleted by a user.
  4. If a user directs or a fiduciary requests a custodian to disclose under this article some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
    1. A subset limited by date of the user's digital assets;
    2. All of the user's digital assets to the fiduciary or designated recipient;
    3. None of the user's digital assets; or
    4. All of the user's digital assets to the court for review in camera.

      (2017, cc. 33, 80.)

§ 64.2-121. Disclosure of content of electronic communications of deceased user.

If a deceased user consented to or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of electronic communications sent or received by the user if the representative gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the death certificate of the user;
  3. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order;
  4. Unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and
  5. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
    2. Evidence linking the account to the user; or
    3. A finding by the court that (i) the user had a specific account with the custodian, identifiable by the information specified in subdivision a; (ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. § 2701 et seq., 47 U.S.C. § 222, or other applicable law; (iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or (iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

      (2017, cc. 33, 80.)

§ 64.2-122. Disclosure of other digital assets of deceased user.

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the death certificate of the user;
  3. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
    2. Evidence linking the account to the user;
    3. An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
    4. A finding by the court that (i) the user had a specific account with the custodian, identifiable by the information specified in subdivision a or (ii) disclosure of the user's digital assets is reasonably necessary for administration of the estate.

      (2017, cc. 33, 80.)

§ 64.2-123. Disclosure of content of electronic communications of principal.

To the extent that a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
  3. A certification by the agent that the power of attorney is in effect; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
    2. Evidence linking the account to the principal.

      (2017, cc. 33, 80.)

§ 64.2-124. Disclosure of other digital assets of principal.

Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalog of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. An original or copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
  3. A certification by the agent that the power of attorney is in effect; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
    2. Evidence linking the account to the principal.

      (2017, cc. 33, 80.)

§ 64.2-125. Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications.

(2017, cc. 33, 80.)

§ 64.2-126. Disclosure of contents of electronic communications held in trust when trustee is not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of electronic communications sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the trust instrument, or a certification of the trust under § 64.2-804 that includes consent to disclosure of the content of electronic communications to the trustee;
  3. A certification by the trustee that the trust exists and the trustee is a currently acting trustee of the trust; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
    2. Evidence linking the account to the trust.

      (2017, cc. 33, 80.)

§ 64.2-127. Disclosure of other digital assets held in trust when trustee is not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalog of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the trust instrument or a certification of the trust under § 64.2-804 ;
  3. A certification by the trustee that the trust exists and the trustee is a currently acting trustee of the trust; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
    2. Evidence linking the account to the trust.

      (2017, cc. 33, 80.)

§ 64.2-128. Disclosure of digital assets to conservator or guardian of protected person.

  1. After an opportunity for a hearing under Chapter 20 (§ 64.2-2000 et seq.), the court may grant a conservator or guardian access to the digital assets of a protected person.
  2. Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator or guardian the catalog of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator or guardian gives the custodian:
    1. A written request for disclosure in physical or electronic form;
    2. A certified copy of the court order that gives the conservator or guardian authority over the digital assets of the protected person; and
    3. If requested by the custodian:
      1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
      2. Evidence linking the account to the protected person.
  3. A conservator with general authority to manage the assets of a protected person or a guardian with specific authority granted by the court may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section shall be accompanied by a certified copy of the court order giving the conservator or guardian authority over the protected person's property.

    (2017, cc. 33, 80.)

§ 64.2-129. Fiduciary duty and authority.

  1. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
    1. The duty of care;
    2. The duty of loyalty; and
    3. The duty of confidentiality.
  2. A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
    1. Except as otherwise provided in § 64.2-118 , is subject to the applicable terms-of-service agreement;
    2. Is subject to other applicable law, including copyright law;
    3. In the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
    4. May not be used to impersonate the user.
  3. A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
  4. A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer-fraud and unauthorized computer-access laws, including Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2.
  5. A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor:
    1. Has the right to access the property and any digital asset stored in it; and
    2. Is an authorized user for the purposes of computer-fraud and unauthorized computer-access laws, including Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2.
  6. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
  7. A fiduciary of a user may request a custodian to terminate the user's account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:
    1. If the user is deceased, a certified copy of the death certificate of the user;
    2. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority over the account; and
    3. If requested by the custodian:
      1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
      2. Evidence linking the account to the user; or
      3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subdivision a.

        (2017, cc. 33, 80.)

§ 64.2-130. Custodian compliance and immunity.

  1. Not later than 60 days after receipt of the information required under §§ 64.2-121 through 64.2-129 , a custodian shall comply with a request under this article from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
  2. An order under subsection A directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. § 2702.
  3. A custodian may notify the user that a request for disclosure or to terminate an account was made under this article.
  4. A custodian may deny a request under this article from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
  5. This article does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this article to obtain a court order that:
    1. Specifies that an account belongs to a protected person or principal;
    2. Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
    3. Contains a finding required by law other than this article.
  6. A custodian and its officer, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this article.

    (2017, cc. 33, 80.)

§ 64.2-131. Uniformity of application and construction.

In applying and construing this article, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(2017, cc. 33, 80.)

§ 64.2-132. Relation to Electronic Signatures in Global and National Commerce Act.

This article modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, 15 U.S.C. § 7003(b).

(2017, cc. 33, 80.)

SUBTITLE II. WILLS AND DECEDENTS' ESTATES.

Chapter 2. Descent and Distribution.

Sec.

§ 64.2-200. Course of descents generally; right of Commonwealth if no other heir.

  1. The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:
    1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent's children and their descendants, and one-third of the estate descends and passes to the surviving spouse.
    2. If there is no surviving spouse, then the estate descends and passes to the decedent's children and their descendants.
    3. If there is none of the foregoing, then to the decedent's parents, or to the surviving parent.
    4. If there is none of the foregoing, then to the decedent's siblings, and their descendants.
    5. If there is none of the foregoing, then one-half of the estate descends and passes to the kindred of one of the decedent's parents and one-half descends and passes to the kindred of the other of the decedent's parents in the following course:
      1. To the decedent's grandparents, or to the surviving grandparent.
      2. If there is none of the foregoing, then to the decedent's uncles and aunts, and their descendants.
      3. If there is none of the foregoing, then to the decedent's great-grandparents.
      4. If there is none of the foregoing, then to the siblings of the decedent's grandparents, and their descendants.
      5. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.
  2. If there are no surviving kindred of one of the decedent's parents, the whole estate descends and passes to the surviving kindred of the other of the decedent's parents. If there are no kindred of either parent, the whole estate descends and passes to the kindred of the decedent's most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse's death, as if such spouse had died intestate and entitled to the estate.
  3. If there is no other heir of a decedent's real estate, such real estate is subject to escheat to the Commonwealth in accordance with Chapter 24 (§ 55.1-2400 et seq.) of Title 55.1. (Code 1950, § 64-1 ; 1956, c. 109; 1968, c. 656, § 64.1-1; 1977, c. 474; 1982, c. 304; 1985, c. 189; 1990, c. 831; 2012, c. 614; 2020, c. 900.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 24 ( § 55.1-2400 et seq.) of Title 55.1" for "Chapter 10 ( § 55-168 et seq.) of Title 55."

The 2020 amendments. - The 2020 amendment by c. 900, in subdivision A 4 and in subdivision A 5 d, substituted "siblings" for "brothers and sisters"; in subdivision A 5, substituted "kindred of one of the decedent's parents" for "paternal kindred" and "kindred of the other of the decedent's parents" for "maternal kindred of the decedent"; in subsection B, substituted "If there are no surviving kindred of one of the decedent's parents, the whole estate descends and passes to the surviving kindred of the other of the decedent's parents" for "If there are either no surviving paternal kindred or no surviving maternal kindred, the whole estate descends and passes to the paternal or maternal kindred who survive the decedent" in the first sentence and "no kindred of either parent" for "neither maternal nor paternal kindred" in the second sentence.

Law review. - For comment on right of election against a foreign testator's will, see 25 Wash. & Lee L. Rev. 328 (1968). For survey of Virginia law on wills, trusts and estates for the year 1967-1978, see 54 Va. L. Rev. 1664 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1534 (1969); for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970). For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972). For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978). For 1985 survey of Virginia wills, trusts, and estate law, see 19 U. Rich L. Rev. 779 (1985).

For annual survey of Virginia law article, "Wills, Trusts, and Estates," see 47 U. Rich. L. Rev. 343 (2012).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. 2A.03 The Elective Share - Decedent Dying Before January 1, 2001, et seq. Cox.

Virginia Forms (Matthew Bender). No. 6-301 Complaint to Construe a Will; No. 15-105 Will Directing that Property Shall Pass According to Laws of Descent and Distribution; No. 15-207 Bequest or Devise to Minor; No. 15-427 List of Heirs, et seq.; No. 16-512 Deed by Heirs; No. 16-2001 Affidavit of Heirs - Establishing Ownership, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 18.

Editor's note. - Most of the cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Construction of "next of kin." - A court may loosely describe as "next of kin" the parties who, in a particular instance, are the ones who take under the statute, but when the actual phrase is employed in an instrument it is to be construed strictly, in its commonly accepted meaning, as nearest in blood. Fletcher v. Washington & Lee Univ., 706 F.2d 475 (4th Cir. 1983).

"Kindred" similar to "next of kin." - "Kindred" is not a highly technical term whose primary meaning is determined by reference to the statute of descent and distribution. It is similar to the phrase "next of kin," which is a nontechnical term whose commonly accepted meaning is "nearest in blood." Elmore v. Virginia Nat'l Bank, 232 Va. 310 , 350 S.E.2d 603 (1986).

"Kindred" retains its commonly accepted meaning when used in an instrument. Elmore v. Virginia Nat'l Bank, 232 Va. 310 , 350 S.E.2d 603 (1986).

Phrase "nearest living paternal kindred" in a trust agreement referred, to those blood relatives on her father's side in the closest degree of kinship to the grantor. Elmore v. Virginia Nat'l Bank, 232 Va. 310 , 350 S.E.2d 603 (1986).

The common-law course of descent is entirely repealed and abrogated. Tomlinson v. Dilliard, 7 Va. (3 Call) 105 (1781); Browne v. Turberville, 6 Va. (2 Call) 390 (1800); Stone v. Keeling, 9 Va. (5 Call) 143 (1804); Owen v. Cogbill, 14 Va. (4 Hen. & M.) 487 (1810); Dilliard v. Tomlinson, 15 Va. (1 Munf.) 183 (1810); Templeman v. Steptoe, 15 Va. (1 Munf.) 339 (1810); Addison v. Core's Adm'r, 16 Va. (2 Munf.) 279 (1811); Davis v. Rowe, 27 Va. (6 Rand.) 355 (1828); Garland v. Harrison, 35 Va. (8 Leigh) 368 (1837); Medley v. Medley, 81 Va. 265 (1886).

This section abrogated the whole of the common-law regulating descents. However, this was with regard to statutory descent, intestacy. Fletcher v. Washington & Lee Univ., 706 F.2d 475 (4th Cir. 1983).

This section did not purport to change the meaning of recognized common-law words, even when they were used in a will. Fletcher v. Washington & Lee Univ., 706 F.2d 475 (4th Cir. 1983).

Descent in Virginia is fixed by statute. Common-law analogies are not helpful, as that system has been superseded by statute, and with it went primogeniture and all its concepts of feudal tenure. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316 (1941).

Legislature may change course of descents. - The legislature may, from time to time, change the course relating to descents and distributions. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952).

Statutes of descent should be construed as a whole and so as to give effect to the obvious intent of the legislature. Browne v. Turberville, 6 Va. (2 Call) 390 (1800).

Statute in force at the time of death of an intestate governs the disposition of his estate. Harrison v. Allen, 7 Va. (3 Call) 289 (1802); Dilliard v. Tomlinson, 15 Va. (1 Munf.) 183 (1810); Hauenstein v. Lynham, 69 Va. (28 Gratt.) 62 (1877), rev'd on other grounds, 100 U.S. 483, 25 L. Ed. 628 (1880).

Therefore the statute of descents does not have a retrospective operation. Dickinson v. Holloway, 20 Va. (6 Munf.) 422 (1819); Blankenbeker v. Blankenbeker, 20 Va. (6 Munf.) 427 (1819).

Theory of the statute of descent and distribution is that the estate of the ancestor at his death, subject to the rights of the widow if there be one, passes in coparcenary equally to his children. Corbitt v. Wright, 120 Va. 471 , 91 S.E. 612 (1917).

New classes in the course of descents cannot be constructed out of the subsequent explanatory provisions ( §§ 64.1-2 through 64.1-10) and contrary to the previously established course of descents generally, as prescribed by this section. Moore v. Conner, 2 Va. Dec. 56, 20 S.E. 936 (1890).

In every case arising under the statute of descents, reference must first be had to this section to ascertain to which class it belongs. The other divisions ( §§ 64.1-2 through 64.1-10) are but explanatory of how the estate shall be partitioned under the proper class when discovered, especially when some of those entitled to take are descendants of deceased members of the class or some of the class are collaterals of the half blood. Moore v. Conner, 2 Va. Dec. 56, 20 S.E. 936 (1890).

Fifth paragraph of this section is mandatory, requiring that one moiety go to the paternal and one moiety go to the maternal kindred, and § 64.1-3 cannot be applied until after the estate has been divided into moieties. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316 (1941).

After a division is made into moieties pursuant to the fifth paragraph of this section, each moiety goes to the proper kindred as a class, on the paternal and maternal side respectively, and there is no further division into moieties as between the branches of paternal and maternal kindred. Furthermore, each moiety keeps on its own side, regardless of the other, so long as there are any kindred, however remote, on that side. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316 (1941).

Determination of distribution. - Because the decedent had no surviving spouse, no children, no surviving parents, and neither a surviving brother or sister nor a brother or sister who had descendants, the statute required the decedent's estate to be divided into two separate, equally valued moieties, the decedent's paternal side moiety passed to the half-uncle, and the decedent's maternal side moiety passed to the decedent's fourteen second cousins. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409 (2014).

Term "title" was not used in the statute in a strict an technical sense, but rather in the more comprehensive sense of any interest in an estate of inheritance, to which an intestate may die entitled. Medley v. Medley, 81 Va. 265 (1886).

An equitable interest in real estate descends to the owner's heirs just as a legal estate. Ratliff v. Ratliff, 102 Va. 880 , 47 S.E. 1007 (1904).

Executory devises are not mere possibilities, but substantial interest, and as respects transmissibility, stand on the same footing with contingent remainders. That is, if the contingency whereon the vesting depends, is a collateral event irrespective of attainment to a given age and surviving a given period, the death of the devisee pending the contingency, works no exclusion, but simply substitutes and lets in the devisee's representative by descent or otherwise. Medley v. Medley, 81 Va. 265 (1886).

Possibility of reverter. - In Virginia, upon the death intestate of the creator of a fee after which there is a possibility of reverter, such possibility of reverter immediately descends by inheritance to the person or persons designated by the Virginia statutes of descent as those to whom his real estate of inheritance shall descend, who may convey the same by deed or devise it by will, or transmit it by inheritance to his or their heirs in accordance with the Virginia statute of descents. Copenhaver v. Pendleton, 155 Va. 463 , 155 S.E. 802 (1930).

A possibility of reverter at common law passed by descent cast in accordance with the same rules of law that were applicable to technical estates of inheritance, i.e., were inheritable, and are inheritable in Virginia under and in accordance with the provisions of the Virginia statutes of descents. Copenhaver v. Pendleton, 155 Va. 463 , 155 S.E. 802 (1930).

Partial intestacy. - Where a person dies intestate as to a portion of his estate, that particular portion passes under the statute of descent and distribution to his heirs and distributees. McCamant v. Nuckolls, 85 Va. 331 , 12 S.E. 160 (1888). See also Headdick v. McDowell, 102 Va. 124 , 45 S.E. 804 (1903).

Infant's property. - A deed conveyed property to a son and his family during his life, the property at his death to pass to his children or issue of such as may die. When the son's daughter predeceased him, her surviving daughter who later died still an infant took as a purchaser. The infant's interest in the property would not under former § 64.1-9 go to the surviving children of the son, but to her father, her surviving parent under this section. Smoot v. Bibb, 124 Va. 28 , 97 S.E. 355 (1918). See Waring v. Waring, 96 Va. 641 , 32 S.E. 150 (1899).

Rights of illegitimate children in partition suit. - Although the intestate decedent's children who were born out of wedlock were required to establish in a partition suit that the children were the decedent's children to prove their title to the subject real property under § 64.1-1, the statute of descents, the children were not bound by the requirements of subdivision 4 of § 64.1-5.1 applicable to the settlement of the decedent's estate. Jenkins v. Johnson, 276 Va. 30 , 661 S.E.2d 484 (2008).

Section held inapplicable. - This section was inapplicable to the determination of who was included in the term "next of kin" as that term was used in an agreement which deeded certain property to a university with provision for conveyance of the property under certain conditions to the persons then living who were determined to be the next of kin of the owner. Fletcher v. Washington & Lee Univ., 706 F.2d 475 (4th Cir. 1983).

Subsection B of § 64.2-200 is listed subsequent to § 64.2-200 (A)(5)(a) through (e) and, by its terms, only applies if § 64.2-200(A)(5)(a) through (e) are inapplicable to either or both moieties. Subsection B of § 64.2-200 did not apply and could not have affected distribution of the decedent's paternal side moiety because the decedent's paternal side moiety passed to the class identified in § 64.2-200(A)(5)(b), and the decedent's maternal side moiety passed to the class identified in § 64.2-200(A)(5)(b) or (d). Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409 (2014).

CIRCUIT COURT OPINIONS

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

Court determination of distribution. - In a case to determine the distribution of the proceeds of the deceased, who died intestate, the court's law clerk prepared an order that distributed the estate according to both the percentage of the maternal or paternal moiety and percentage of the overall estate that each relation would receive because the original plan of distribution contained in the proposed orders presented to the court did not adequately reflect the appropriate proportions of distributions of the estate to which each heir was entitled. Under the fifth point in § 64.1-1, the estate had to be divided into two equal moieties. Estate of Floyd, 79 Va. Cir. 187, 2009 Va. Cir. LEXIS 36 (Fairfax Aug. 5, 2009).

Effect on property where beneficiary lacked capacity to execute a deed on his interest. - Based on sufficient evidence presented that the grantor lacked the sufficient mental capacity to execute a deed, including testimony from a forensic clinical psychologist who performed a comprehensive psychological evaluation of the grantor, rescission of the same was ordered. But, the grantor retained his one-third interest in the property under the intestacy laws. Clark v. Small, 74 Va. Cir. 534, 2006 Va. Cir. LEXIS 184 (Nelson County 2006).

Husband could be administrator. - Husband could be the administrator of a decedent's estate because a certified copy of the marriage between the husband and decedent was admitted into evidence, and it created a presumption of a lawful marriage; the presumption of marriage had not been rebutted, and thus, the husband was the surviving spouse of the decedent and her sole heir because the decedent left the marital home due to medical conditions, and allegations of drunkenness and abuse were undermined by multiple witnesses. Foltz v. Shadid,, 2018 Va. Cir. LEXIS 5 (Page County Jan. 13, 2018).

§ 64.2-201. Distribution of personal estate; right of Commonwealth if no other distributee.

  1. The surplus of the personal estate or any part thereof of any decedent, after payment of funeral expenses, charges of administration, and debts, and subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3, not effectively disposed of by will passes by intestate succession and is distributed to the same persons, and in the same proportions, as real estate descends pursuant to § 64.2-200 .
  2. If there is no other distributee of a decedent's personal estate, such personal estate shall accrue to the Commonwealth.

    (Code 1950, §§ 64-11, 64-12; 1968, c. 656, §§ 64.1-11, 64.1-12; 1978, c. 647; 1981, c. 580; 1982, c. 304; 1983, c. 320; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For survey of Virginia law on domestic relations for the year 1969-1970, see 56 Va. L. Rev. 1411 (1970). For survey of Virginia law on taxation for the year 1972-1973, see 59 Va. L. Rev. 1584 (1973). For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973). For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978). For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

Research References. - Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate, et seq.; No. 15-105 Will Directing that Property Shall Pass According to Laws of Descent and Distribution.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 98.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Origin of statutes regulating succession to property. - See Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

Upon the death of a parent intestate his personalty passes according to the statute of distributions. Mort v. Jones, 105 Va. 668 , 51 S.E. 220 (1906).

Payment of debts. - This section in effect declares that there shall be no distribution of the personal estate of an intestate until after the costs of administration, funeral expenses and debts of the decedent have been paid. Hall v. Stewart, 135 Va. 384 , 116 S.E. 469 (1923). See also Scott v. Ashlin, 86 Va. 581 , 10 S.E. 751 (1890); Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 (1889).

Under the statute law of Virginia the personal estate (as is also the real estate), of a decedent, is expressly made assets for the payment of his debts. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

Judgment for alimony constitutes a debt within the meaning of this section. Whether such a judgment is a debt for which the debtor cannot be imprisoned, or a debt from which he may not be discharged in bankruptcy, or not, it is nevertheless an obligation which must be deducted before the estate of a decedent can be distributed under this section. Searles v. Gordon, 156 Va. 289 , 157 S.E. 759 (1931).

Alleged debt deemed a legacy in disguise, and therefore not sufficient to bar the widow of her right to one third of the personal property so given. Ruth v. Owens, 23 Va. (2 Rand.) 507 (1824).

Surplus ascertained only after funeral expenses paid. - When the estate is entirely personal, its surplus passes to distributees, but that surplus cannot be ascertained until funeral expenses have been met. Edwards v. Cuthbert, 184 Va. 502 , 36 S.E.2d 1 (1945).

Right to bar spouse's share. - A conveyance by a husband, by which he parts absolutely with an interest in personal property, though it is not to take effect until his death, and though he retains the power to sell and reinvest or account, and also the power to reappoint among specified objects, is valid to bar the wife of her distributable share therein. Gentry v. Bailey, 47 Va. (6 Gratt.) 594 (1850).

A wife has not such an interest in that portion of the personal estate of her husband, to which she may be entitled in the event of his dying intestate, or leaving a will which she may renounce, as that an absolute and irrevocable, though merely voluntary, deed thereof, executed by him to his children by a former marriage, can be considered a fraud on her rights, or be set aside at her instance. Lightfoot's Ex'rs v. Colgin, 19 Va. (5 Munf.) 42 (1813).

The right given by the statutes to a widow to share in the surplus of her deceased husband's personal estate cannot be defeated by a device whereby he retains up until the time of his death full ownership and enjoyment of his personal property, and merely executes and transfers to a trustee his bare promise under seal, unsupported by an actual consideration, to pay to the trustee after his (the husband's) death, for the benefit of designated beneficiaries, a sum of money equivalent to the corpus of his personal estate, or the major portion thereof. Norris v. Barbour, 188 Va. 723 , 51 S.E.2d 334 (1949).

Where prior to death a husband who was majority stockholder in a family corporation created an irrevocable trust of his stock with the corporation as trustee, reserving in himself the right to vote the stock and providing for himself as life beneficiary of the trust and that on his death the stock would become treasury stock of the corporation, the trust so created was valid, and it was immaterial that the husband's purpose may have been to prevent his wife from obtaining any of the stock on his death. Freed v. Judith Realty & Farm Prods. Corp., 201 Va. 791 , 113 S.E.2d 850 (1960).

A man cannot disinherit his heirs or next of kin, in any other way than by giving his estate to someone else. Boisseau v. Aldridges, 32 Va. (5 Leigh) 222 (1834).

Will discovered after distribution. - It is the duty of an administrator to distribute the personal estate after the payment of debts. It is also his right. If he acts with reasonable diligence to ascertain whether a will exists, and when acting with reasonable prudence in that regard, does not think and has no reasonable ground to think that a will exists, he may safely distribute the estate, so far as persons taking under a then unknown and unrecorded will are concerned, whether it be within the year (now six months) of, or after the expiration of the year (now six months) from the qualifications, mentioned in § 64.1-177. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

Rights of action. - It seems, that the executor or administrator of a husband who had survived his wife, but had never taken administration on her estate, may sue the guardian of the wife for her estate committed to him. Templeman v. Fauntleroy, 24 Va. (3 Rand.) 434 (1825).

Distributees of a decedent may maintain a bill in equity to assert their rights in the decedent's estate. In such suit the personal representative of the decedent and the other distributee's are necessary parties. Richardson's Ex'r v. Hunt, 16 Va. (2 Munf.) 148 (1811); Frazier v. Frazier's Ex'rs, 29 Va. (2 Leigh) 642 (1831); Samuel v. Marshall, 30 Va. (3 Leigh) 567 (1832); Moore's Adm'r v. George's Adm'r, 37 Va. (10 Leigh) 228 (1839); Sillings v. Bumgardner, 50 Va. (9 Gratt.) 273 (1852); Robertson v. Gillenwaters, 85 Va. 116 , 7 S.E. 371 (1888).

Since the statute of distributions the executor is not, in any case, entitled to the residuum of his testator's personal estate not actually bequeathed away by the will. Shelton v. Shelton, 1 Va. (1 Wash.) 53 (1791); Hendren v. Colgin, 18 Va. (4 Munf.) 231 (1814); Paup's Adm'r v. Mingo, 31 Va. (4 Leigh) 163 (1833).

Section defines statutory share of renouncing widow. - The statutory share of a widow who renounces the provisions made for her in her husband's will is defined in this section and § 64.1-16. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Renouncing widow is entitled to one third of the income earned on all the assets of the estate during the period of administration which is not used to pay funeral expenses, costs of administration and debts. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

A surviving spouse who has elected to take against the will of the deceased spouse is entitled to her statutory share of the income earned on all the personal assets of decedent's estate during the period of administration. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

This section must be read along with § 64.1-161. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Surviving spouse allowed federal estate tax marital deduction. - See Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Thus, charges of administration and debts do not include federal estate taxes. - It is evident that the phrase "charges of administration and debts" found in this section was not intended to include the payment of the federal estate taxes before determining a surviving spouse's statutory share. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Hay. - Sixteen hundred bales of hay left on the decedent's land at the time of her death were assets of the intestate estate. The hay was tangible personal property, and because it was unnamed in the will, it passed under the laws of descent and distribution to the decedent's two sons and four daughters. Teed v. Powell, 236 Va. 36 , 372 S.E.2d 131 (1988).

§ 64.2-202. When persons take per capita and when per stirpes; collaterals of the half blood.

  1. A decedent's estate, or each half portion of such estate when division is required by subdivision A 5 of § 64.2-200 , shall, except when otherwise provided in subdivision A 1 of § 64.2-200 , be divided into as many equal shares as there are (i) heirs and distributees who are in the closest degree of kinship to the decedent and (ii) deceased persons, if any, in the same degree of kinship to the decedent who, if living, would have been heirs and distributees and who left descendants surviving at the time of the decedent's death. One share of the estate or half portion thereof shall descend and pass to each such heir and distributee and one share shall descend and pass per stirpes to such descendants.
  2. Notwithstanding the provisions of subsection A, collaterals of the half blood shall inherit only half as much as those of the whole blood.

    (Code 1950, §§ 64-2, 64-3; 1968, c. 656, §§ 64.1-2, 64.1-3; 1986, c. 305; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).

For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

Editor's note. - Some of the cases annotated below were decided under former Title 64.1 and prior law.

CASE NOTES

Effect of former provisions. - While the common law wholly excluded collaterals of the half blood from the inheritance, this section calls them along with those of the whole blood but gives them half portions only. Davis v. Rowe, 27 Va. (6 Rand.) 355 (1828); Moore v. Conner, 2 Va. Dec. 56, 20 S.E. 936 (1890).

Meaning of per capita. - Whenever persons are entitled to participation per capita they take by persons and share equally in the estate. Davis v. Rowe, 27 Va. (6 Rand.) 355 (1828); Ball v. Ball, 68 Va. (27 Gratt.) 325 (1876); Dickinson v. Hoomes, 42 Va. (1 Gratt.) 302 (1844); Moore v. Conner, 2 Va. Dec. 56, 20 S.E. 936 (1890); Vashon v. Vashon, 98 Va. 170 , 35 S.E. 457 (1900).

Meaning of per stirpes. - Whenever persons entitled to participation take per stirpes, or by stocks, they take the share which their deceased ancestor if living would have taken. Taliaferro v. Burwell, 8 Va. (4 Call) 321 (1803); Davis v. Rowe, 27 Va. (6 Rand.) 355 (1828); Dickinson v. Hoomes, 42 Va. (1 Gratt.) 302 (1844); Ball v. Ball, 68 Va. (27 Gratt.) 325 (1876); Moore v. Conner, 2 Va. Dec. 56, 20 S.E. 936 (1890); Vashon v. Vashon, 98 Va. 170 , 35 S.E. 457 (1900).

This section does not supersede the fifth paragraph of § 64.1-1 but supplements it. Whenever, in tracing descent, designated conditions prevail, an estate must be divided into moieties, and to each of these moieties then attaches the provisions of this section. These conditions attach to each moiety as a separate entity but not to the estate theretofore divided as a single unit, although this may sometimes result in an inequality of inheritance by those who are in fact of the same degree of kinship. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316 (1941).

Nothing in this section favors the construction that it deals with the subject of partition of the inheritance into moieties, which partition is fixed by the provisions of § 64.1-1. This section refers to and deals with the shares in the subject inherited of the various persons succeeding thereto, with relation to one another, whether the subject inherited be the whole or a moiety of the estate. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316 (1941).

Effect of deaths within class. - When the class in the course of inheritance which is entitled to the intestate's estate has been determined, no number of deaths in it, short of its total extinction, will affect the interest of any survivor of that class. Moore v. Conner, 2 Va. Dec. 56, 20 S.E. 936 (1890).

Determination of distribution. - Half-uncle took one-half of the decedent's estate because the half-uncle, who was the only member of the class to which the decedent's paternal side moiety passed under § 64.2-200 , took the entirety of the decedent's paternal side moiety, and the paternal side moiety was one-half of the decedent's entire estate. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409 (2014).

Section held inapplicable. - Statute did not affect distribution of the decedent's paternal side moiety because the decedent's paternal side moiety passed to a class comprised of only one heir; even though the half-uncle was a half-blood collateral heir, no whole-blood collateral heir existed as part of that class to which the decedent's paternal side moiety passed; and, without such a whole-blood collateral, no whole-blood inheritance existed to provide a statutory basis for applying the statute to reduce the decedent's inheritance. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409 (2014).

CIRCUIT COURT OPINIONS

The county may consider extrinsic evidence of intent. Estate of Martin, 68 Va. Cir. 58, 2005 Va. Cir. LEXIS 23 (Roanoke 2005) (decided under prior law).

§ 64.2-203. Inheritance rights of certain individuals.

  1. Except as otherwise provided by law, no person is barred from inheriting because such person or a person through whom he claims his inheritance is or has been an alien.
  2. A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle him to the larger share.

    (Code 1950, § 64-4; 1968, c. 656, § 64.1-4; 1978, c. 647, § 64.1-6.1; 2012, c. 614.)

CASE NOTES

Former similar provisions removed the bar of alienage in making title by descent through collateral as well as lineal kindred. Jacksons v. Sanders, 29 Va. (2 Leigh) 109 (1830); Garland v. Harrison, 35 Va. (8 Leigh) 368 (1837); Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 (1888).

Section held inapplicable. - Statute was not implicated and could not have affected distribution of the decedent's paternal side moiety because the statute was implicated when an individual was related to a decedent in more than one way, and the half-uncle was related to the decedent by only one line of relationship. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409 (2014).

§ 64.2-204. Afterborn heirs.

Relatives of the decedent conceived before his death but born thereafter, and children resulting from assisted conception born after the decedent's death who are determined to be relatives of the decedent as provided in Chapter 9 (§ 20-156 et seq.) of Title 20, shall inherit as if they had been born during the lifetime of the decedent.

(1978, c. 647, § 64.1-8.1; 1994, c. 919; 2012, c. 614.)

Law review. - For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978).

For article, "Dead Men Reproducing: Responding to the Existence of Afterdeath Children," see 16 Geo. Mason L. Rev. 403 (2009).

§ 64.2-205. Right of entry or action for land not affected by descent cast.

The right to make entry on or bring an action to recover land is not tolled or defeated by descent cast.

(Code 1950, § 64-10; 1968, c. 656, § 64.1-10; 2012, c. 614.)

§ 64.2-206. Advancements brought into hotchpot.

When the descendant of a decedent receives any property as an advancement from the decedent during the decedent's lifetime or under the decedent's will, and the descendant, or any descendant of his, is also to receive a distribution of any portion of the decedent's intestate estate, real or personal, the advancement shall be brought into hotchpot with the intestate estate and the descendant is entitled to his proper portion of the entire intestate estate, including such advancement.

(Code 1950, § 64-17; 1968, c. 656, § 64.1-17; 2012, c. 614.)

Law review. - For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978).

Research References. - Virginia Forms (Matthew Bender). No. 15-247 Advancements.

I. General Consideration. II. What Constitutes An Advancement. A. In General. B. Intention. C. Presumption. D. Completed Transfer. E. Change of Gift to Advancement. III. Intestacy. IV. To What Property Applicable. V. Accounting.

I. GENERAL CONSIDERATION.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

The intent of this section is to bring about, as nearly as may be, an equal division of the estate of a decedent among his children or other descendants, except so far as he may have himself distributed his estate unequally. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920); Rowe v. Rowe, 144 Va. 816 , 130 S.E. 771 (1925).

Essential elements. - This section is operative if the decedent dies intestate as to part of his property and one or more of his descendants, who have received gifts by way of advancement, also claim the right to participate in the distribution of the property which has not been disposed of, either in the lifetime of the decedent or by his will. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920). See also Puryear v. Cabell, 65 Va. (24 Gratt.) 260 (1874); Biedler v. Biedler, 87 Va. 300 , 12 S.E. 753 (1891).

The Virginia doctrine of hotchpot, found in this section, prevails notwithstanding an agreement or covenant may have been entered into by a descendant with his ancestor at the time of the advancement, that he, by the acceptance of the advancement, relinquishes all interest in or claim to any portion of the estate then owned or which might be thereafter acquired by the ancestor and as to which he may die intestate. Ratliff v. Meade, 184 Va. 328 , 35 S.E.2d 114 (1945).

II. WHAT CONSTITUTES AN ADVANCEMENT.
A. IN GENERAL.

Definition. - In its strictest technical sense an advancement is a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor's estate that the donee would be entitled to on the death of the donor intestate. Hill v. Stark, 122 Va. 280 , 94 S.E. 792 (1918). See also Chinn v. Murray, 45 Va. (4 Gratt.) 348 (1848); Nicholas v. Nicholas, 100 Va. 660 , 42 S.E. 669 (1902).

Two elements are essential to constitute an advancement, a gift by the parent to the child and the intention by the donor that the gift shall be an advancement. But the latter may be inferred from the former. Nevertheless, a gift, in contradistinction to a transfer for valuable consideration, is indispensable. Hill v. Stark, 122 Va. 280 , 94 S.E. 792 (1918).

Illustrative cases. - See Gregory v. Winston's Adm'r, 64 Va. (23 Gratt.) 102 (1873); Watkins v. Young, 72 Va. (31 Gratt.) 84 (1878); Biedler v. Biedler, 87 Va. 300 , 12 S.E. 753 (1891); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920).

B. INTENTION.

The intention of the testator determines the question as to whether or not the gift is an advancement. And the difficulties of solving the question are generally found in the kind of evidence by which such intention is to be proved. Watkins v. Young, 72 Va. (31 Gratt.) 84 (1878); Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920).

If, from all the circumstances surrounding a particular case, it can be said that a parent intended a transfer of property to a child to represent a portion of the child's supposed share in the parent's estate, such transfer will be treated in law as an advancement. The converse is, as a matter of course, true; hence, where it appears that the ancestor intended that a gift to his child should not be treated as an advancement, such intention will be respected and enforced. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920).

The statements of the grantor at the time, or subsequently, are competent evidence to show what was his intention. Watkins v. Young, 72 Va. (31 Gratt.) 84 (1878); McDearman v. Hodnett, 83 Va. 281 , 2 S.E. 643 (1887).

C. PRESUMPTION.

The presumption that a gift of an ancestor to a descendant is a gift by way of advancement is one of law and is based upon the supposed intention or desire of the ancestor that any inequalities in the division of his whole estate among his heirs at law and distributees, according to the statute of descents and distributions, occasioned by gifts made "by way of advancement," shall be corrected as far as practicable in the subsequent division of that portion of the donor's estate of which he dies intestate. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920).

A gift from a parent to a child, supposing the gift to be adapted to advance the child in life, would seem to create a prima facie presumption that the gift is intended as an advancement. This presumption must be rebutted by affirmative proof that the gift was not intended to be a gift by way of advancement. Watkins v. Young, 72 Va. (31 Gratt.) 84 (1878); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920). See also Rowe v. Rowe, 144 Va. 816 , 130 S.E. 771 (1925).

And so, such a gift to a son-in-law is prima facie an advancement to the daughter. McDearman v. Hodnett, 83 Va. 281 , 2 S.E. 643 (1887).

D. COMPLETED TRANSFER.

There is embraced in every definition of advancement the idea that the parent has irrevocably parted from his title in the subject advanced. Williams v. Stonestreet, 24 Va. (3 Rand.) 559 (1825); Christian v. Coleman's Adm'r, 30 Va. (3 Leigh) 30 (1831); Kean v. Welch, 42 Va. (1 Gratt.) 403 (1845); Darne v. Lloyd, 82 Va. 859 , 5 S.E. 87 (1887).

E. CHANGE OF GIFT TO ADVANCEMENT.

A donor may change a gift or debt to an advancement. Darne v. Lloyd, 82 Va. 859 , 5 S.E. 87 (1887).

III. INTESTACY.

Partial intestacy only necessary. - Under the Virginia statute the doctrine of hotchpot has been greatly enlarged. At the common law, it only applied when the decedent died wholly intestate, while under this section it is only necessary that there be a partial intestacy. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920).

The statute does not assume to interfere with the freedom of the ancestor to prefer one or more of his descendants in the distribution of his estate, but applies only where, having distributed a part of his estate to them, he has left part of it undisposed of, to be distributed under the statute of descents and distributions. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920).

Advancements, properly speaking, are gifts by anticipation from a parent to a child. Total intestacy was formerly necessary, but partial intestacy is now sufficient. Garrett v. Andis, 159 Va. 150 , 165 S.E. 657 (1932).

IV. TO WHAT PROPERTY APPLICABLE.

Neither rents nor profits of land, given as an advancement, ought to be brought into hotchpot. But where a father shall permit a child to rent out his land and to receive the rents thereof for his or her use, such rents shall be brought into hotchpot as an advancement of personal estate. Williams v. Stonestreet, 24 Va. (3 Rand.) 559 (1825).

Children who held land as tenants at will of mother, the life tenant, were not bound to account for rents and profits, as an advancement, in the settlement of the mother's estate. Christian v. Coleman's Adm'r, 30 Va. (3 Leigh) 30 (1831).

Interest or increase not affected. - Where a child receives an advancement he need not bring into hotchpot the interest or increase. For as he must sustain the loss by accounting for the value of the property when given, and by caring for the property, so he is entitled to the increase. Chinn v. Murray, 45 Va. (4 Gratt.) 348 (1848).

Construed with § 55-2. - In considering what advancements are to be brought into hotchpot under the provisions of this section regard must also be had to § 55-2 forbidding parol gifts of land. Nicholas v. Nicholas, 100 Va. 660 , 42 S.E. 669 (1902).

V. ACCOUNTING.

The descendant who has received an advancement is not required to submit to a redivision of the property by giving up what he has already received, but is only subjected to the alternative of so surrendering what he has received, or of being excluded from any participation in the residue of the decedent's estate which has not been disposed of. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 (1920); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920).

When advancement real estate. - The election by a child not to bring an advancement of real property into hotchpot does not debar him from participating in the division of his father's personal estate where such advancement does not exceed his share of the real estate. McCoy v. McCoy, 105 Va. 829 , 54 S.E. 995 (1906).

How value of advancement computed. - The general rule is that advancements are to be accounted for as of the value they bore when received, neither rents, interest nor profits being charged against the heir or distributee. Ratliff v. Meade, 184 Va. 328 , 35 S.E.2d 114 (1945). See also Chinn v. Murray, 45 Va. (4 Gratt.) 348 (1848).

A child having received advancements, and refusing to share in the first division, but claiming to share in the division of the dower, is to be charged with interest on his advancements or their value, from the death of the intestate to the date of the division. And if the principal and interest of his advancements exceeds the amount received by the other children, he is then to be charged with interest on such excess from that time to the period of the second division. But having elected not to come in on the first division, if his advancements with interest thereon were not equal to the shares of the other children on that division, he is not entitled to have the deficiency made up on the second division. Knight v. Oliver, 53 Va. (12 Gratt.) 33 (1855).

Widow not benefited. - Advancements to children are not brought into hotchpot for the benefit of the widow. She is only entitled to share in the estate of the intestate of which he died possessed. Knight v. Oliver, 53 Va. (12 Gratt.) 33 (1855).

Purchaser from distributee. - Under this section where the advancement to a descendant is equal to or exceeds his share in the estate, it bars his right to further participation. Although the section does not refer to a purchaser from the descendant, yet such purchaser is charged with knowledge of the public statutes of the State, and only buys and can only take the interest of his grantor in the estate. The doctrine of bona fide purchaser has no application. The purchaser only buys the heir's interest, and when that interest is ascertained he is entitled to that and to nothing more. Corbitt v. Wright, 120 Va. 471 , 91 S.E. 612 (1917).

Illustrative cases. - See Knight v. Oliver, 53 Va. (12 Gratt.) 33 (1855); Persinger v. Simmons, 66 Va. (25 Gratt.) 238 (1874); Lewis v. Henry's Ex'rs, 69 Va. (28 Gratt.) 192 (1877).

CIRCUIT COURT OPINIONS

Hotchpot advancements divided. - Where decedent's son received $37,056.21 more in hotchpot advancements than decedent's daughter, she was entitled to one half this difference to ensure that both parties received an equal share of the hotchpot. The decedent had expressed her intent to treat her children "as equally as possible." Feld v. Priebe,, 2004 Va. Cir. LEXIS 303 (Richmond Dec. 22, 2004).

Chapter 3. Rights of Married Persons.

Elective Share of Surviving Spouse of Decedent Dying before January 1, 2017.

Elective Share of Surviving Spouse of Decedent Dying on or after January 1, 2017.

Exempt Property and Allowances.

Uniform Disposition of Community Property Rights at Death Act.

Article 1. Elective Share of Surviving Spouse of Decedent Dying before January 1, 2017.

§ 64.2-300. Applicability; definitions.

  1. The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying before January 1, 2017.
  2. As used in this article, the terms "estate" and "property" shall include insurance policies, retirement benefits exclusive of federal social security benefits, annuities, pension plans, deferred compensation arrangements, and employee benefit plans to the extent owned by, vested in, or subject to the control of the decedent on the date of his death or the date of an irrevocable transfer by him during his lifetime. All such insurance policies and other benefits are included in the terms "estate" and "property" notwithstanding the presence of language contained in any statute otherwise providing that neither they nor their proceeds shall be liable to attachment, garnishment, levy, execution, or other legal process or be seized, taken, appropriated, or applied by any legal or equitable process or operation of law or any other such similar language.

    (1990, c. 831, §§ 64.1-16.1, 64.1-16.2; 1992, cc. 617, 647; 1998, c. 234; 1999, c. 38; 2007, c. 308; 2012, c. 614; 2016, cc. 187, 269.)

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and added subsection A and inserted the subsection B designation.

Law review. - For article, "Virginia's Augmented Estate System: An Overview," see 24 U. Rich. L. Rev. 513 (1990).

For 1992 survey of wills, trusts, and estates law in Virginia, see 26 U. Rich. L. Rev. 873 (1992).

For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).

For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.02 In Virginia - Comparison of Elective Share Statutes, et seq. Cox.

Virginia Forms (Matthew Bender). No. 15-447 Claim for Elective Share of Augmented Estate.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Rights subordinate to payment of estate debts. - This section plainly expresses the intent that rights be subordinate to payment of estate debts. The debtor's interest, regardless of when it vests, is in the value of the augmented estate. Murray v. Mares, 147 Bankr. 688 (Bankr. E.D. Va. 1992).

Separate interest. - Trial court did not err in finding that the late wife's separate property, as identified in the premarital agreement she entered into with the husband, was not to be included in his elective share upon her death, as the plain language of the premarital agreement compelled that result; the husband's claim that the property had to be maintained or repaired in order to keep it separate had to be rejected, as the language of this section referred to keeping a legal interest in the property separate, which the late wife did. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397 (2005).

Burden of proof. - Trial court did not err by placing the burden of proving that investment accounts and land which a spouse owned when she died should be excluded from her augmented estate, pursuant to § 64.1-16.1, or by finding that the deceased spouse's estate did not meet its burden of proof. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584 (2003).

A petition to establish the amount of an elective share may be filed by the surviving spouse, the decedent's personal representative, or any party in interest. Regardless of who files the petition invoking judicial intervention, the party seeking inclusion of property under subsection A of § 64.1-16.1 has the burden of proof under that subsection and the party seeking exclusion of property under subsection B of § 64.1-16.1 carries the burden of establishing such exclusion. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584 (2003).

Applied in Tuttle v. Webb, 284 Va. 319 , 731 S.E.2d 909 (2012).

CIRCUIT COURT OPINIONS

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

No waiver of right to claim elective share. - Decedent's husband was awarded his elective share of the decedent's estate, plus his spousal allowances, because the absence of a written premarital or marital agreement, in which the husband waived his right to claim his elective share of the decedent's augmented estate, was fatal to the estate's argument that the husband's claims for his elective share and for the family allowance be denied due to concerns of fairness to the decedent's son, daughter, and grandson. Higham v. Williams,, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).

Group life insurance policy included within estate property. - The terms "estate" and "property" include, within their given definitions, group life insurance policies. Felix-Aranibar v. Felix, 59 Va. Cir. 357, 2002 Va. Cir. LEXIS 231 (Arlington County 2002).

Pre-marriage transfers. - Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent's augmented estate, the surviving spouse was not entitled to an elective share distribution § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County 2006).

Transferred property included in augmented estate because spouse's consent to transfer was not in writing. - Where a decedent had transferred real estate to her daughter, under § 64.1-16.1, the value of this property had to be included in the augmented estate because the decedent reserved a life estate in the property and it was gratuitously transferred less than five years before her death. That her husband did not object to the transfer was immaterial; as he did not consent to the transfer in writing, the property could not be excluded under § 64.1-16.1. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County 2006).

Widow raised fact issue as to whether decedent's real property was maintained as his separate property. - Summary judgment was denied on the issue of whether real property which was willed to the decedent and was titled in the decedent's name only was part of the decedent's augmented estate; the widow was entitled to the opportunity to prove that at least part of the value of the real estate was attributable to the personal efforts of either party during the marriage or to contributions of marital property as described in subdivision A 1 of § 20-107.3 . Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County 2002).

Titling of real estate is not conclusive as to whether the property is maintained as separate property. - Titling of real estate in an individual name is only one consideration in determining whether the property has been maintained as separate property under clause (ii) of subsection B of § 64.1-16.1. Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County 2002).

Decedent's separate property transmuted into marital property by spouse's contributions. - Value of a house a decedent had gratuitously transferred was part of the augmented estate. Though it was her separate property when she married, as her husband's wages were used to make improvements and repairs to the house, it was transmuted into marital property, thereby rendering the separate property limitation of § 64.1-16.1 inapplicable. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County 2006).

Fair market value of fractional interests. - Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse's elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County 2005).

Decedent's husband was awarded his elective share of the decedent's estate, plus his spousal allowances, because the value of bank accounts in the decedent's name, which were payable on her death to her son or her grandson, were included in the decedent's augmented estate; the full value of accounts the decedent owned as joint tenants with rights of survivorship with her son, daughter, and grandson were also included in the augmented estate because the son, daughter and grandson had no practical access to the accounts when they remained the decedent's assets solely controlled by her. Higham v. Williams,, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).

Property included in augmented estate. - Decedent's husband was awarded his elective share of the decedent's estate, plus his spousal allowances, because the entire value of properties the decedent owned with her son and daughter as joint tenants were included in her augmented estate; the estate failed to meet its burden of proving the value of the son's interest in the property he owned with the decedent, and the daughter paid no part of the consideration for the acquisition of the properties she owned with the decedent. Higham v. Williams,, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).

Designation of beneficiary. - Where a state employee had designated an ex-wife as beneficiary of any accumulated retirement contributions and because the parties' divorce was prior to July 1, 1993, §§ 20-111.1 , 64.1-16.2 C, and 64.1-59 did not apply; as a result, the designation in favor of the ex-wife was not revoked when the parties were divorced. Va. Ret. Sys. v. Bonaparte, 61 Va. Cir. 304, 2003 Va. Cir. LEXIS 129 (Richmond 2003).

Discount of fractional shares conveyed. - Where those liable for an elective share did not select the option to pay cash, but conveyed fractional interests in real estate to an heir, the value conveyed of the fractional interests meant ascertaining their fair market value on an individual basis without reference to what impact the transfer of such interest had on those who held title to the property as tenants in common. In re Estate of Smith, 67 Va. Cir. 33, 2005 Va. Cir. LEXIS 8 (Madison County 2005).

Pre-marriage transfers. - Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent's augmented estate, the surviving spouse was not entitled to an elective share distribution under § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County 2006).

Assets in decedent's checking account received by spouse by right of survivorship. - Pursuant to § 64.1-16.2, a decedent's assets in checking accounts that her husband received by right of survivorship were applied first to satisfy his elective share. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County 2006).

OPINIONS OF THE ATTORNEY GENERAL

Virginia Retirement System benefits are not part of the probate estate and are not subject to probate tax, even if the benefits are included in the calculation of an augmented estate under this section. See opinion of Attorney General to The Honorable Hayden H. Horney, Clerk, Wythe County Circuit Court, 04-25 (5/19/04).

§ 64.2-301. Dower or curtesy abolished.

The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.

The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.

(1990, c. 831, § 64.1-19.2; 2012, c. 614.)

Law review. - For article, "Virginia's Augmented Estate System: An Overview," see 24 U. Rich. L. Rev. 513 (1990).

For survey of Virginia property law for the year 1989-1990, see 24 U. Rich. L. Rev. 725 (1990).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.01 In Virginia - Overview. Cox

I. Surviving Spouse. II. Synonymous Terms. III. Desertion. IV. Surplus After Lien. V. Jointure. VI. Entitlement Before Assignment. VII. Assignment and Recovery.

I. SURVIVING SPOUSE.

Editor's note. - The annotations below were decided under former Title 64.1 and prior provisions. Some of the cases were decided prior to the abolition of dower and curtesy.

CASE NOTES

Section defines the right of a surviving spouse in the decedent's real property as a "dower or curtesy interest" and fixes the scope of that interest. Carter v. King, 233 Va. 60 , 353 S.E.2d 738 (1987).

The 1977 amendment did not convert right to dower or curtesy into right of inheritance. - The General Assembly did not intend the 1977 amendment to this section to convert the right to dower or curtesy, a marital right, into a right of inheritance. Carter v. King, 233 Va. 60 , 353 S.E.2d 738 (1987).

Although the 1977 amendment to former § 64.1-19 redefined the dimensions of the dower or curtesy interest, it did not change its character. Carter v. King, 233 Va. 60 , 353 S.E.2d 738 (1987).

Former § 64.1-19 did not apply where the widow accepts jointure provided for her by a will or a deed. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312 (1958), commented on in 44 Va. L. Rev. 1393 (1958).

Necessary character of spouse's estate of inheritance. - Where a woman marries a man lawfully seized at any time during the coverture of an estate of inheritance, while it is not necessary, in order that the wife may take dower, that there should be any issue of the marriage, it is essential that the husband's inheritance be of such character that it may descend upon the issue of the marriage, should there be any, as heirs of the husband. Snidow v. Snidow, 192 Va. 60 , 63 S.E.2d 620 (1951).

Seisin of spouse must be beneficial. - A legal title in the husband is nothing as regards the wife's right of dower, unless accompanied by the beneficial ownership; and the beneficial ownership is everything, though separated from the legal title. Wilson v. Davisson, 41 Va. (2 Rob.) 384 (1843); James v. Upton, 96 Va. 296 , 31 S.E. 255 (1898).

And either actual or constructive. - Without seisin in the husband during the coverture, either actual or constructive, that is to say, without seisin in law or seisin in fact in the husband, there can be no right to dower in the wife. Grant v. Sutton, 2 Va. Dec. 149, 22 S.E. 490 (1895).

Ascertainment of estate in which deceased spouse had seisin does not necessarily determine dower interest of surviving spouse. A prior encumbrance will reduce the amount of dower. Devers v. Chateau Corp., 792 F.2d 1278 (4th Cir. 1986).

Dower or curtesy where spouse had defeasible fee. - Where a wife was seized of a defeasible fee in real estate devised to her, it was an estate of inheritance and her husband was entitled to curtesy, his right not having been lawfully barred or relinquished. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369 (1959).

Where a wife conveyed to her husband real property in which she had a defeasible fee, her husband's curtesy interest in that parcel of real estate was not extinguished by merger into the defeasible fee since it was not until her death, when the defeasible fee was obliterated, that he acquired an estate by the curtesy. The two estates never met or united in him at one and the same time. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369 (1959).

Where a devise of land was defeasible by the death of the devisee without lawful issue of his body, and the devisee so died, his widow was held entitled to dower in the land. Snidow v. Snidow, 192 Va. 60 , 63 S.E.2d 620 (1951).

Right of entry in favor of widow. - Dower is an interest in land for which a right of entry exists in favor of a widow under Virginia law. Devers v. Chateau Corp., 748 F.2d 902 (4th Cir. 1984), aff'd in part, rev'd in part, 792 F.2d 1278 (4th Cir. 1986).

Wife entitled to dower in rent and reversion when husband conveyed property without her knowledge or consent. - Where husband, at the time he married wife, owned a piece of real estate subject to a 99-year lease for a rent of $5,000 per month and a reversionary interest in the land and the apartment building on it, and he subsequently conveyed the property to the lessees and cancelled the lease without his wife's knowledge or consent, wife was entitled to dower in one-third of the rents and the reversion. Devers v. Chateau Corp., 792 F.2d 1278 (4th Cir. 1986).

Dower prior to assignment. - Until the widow's dower has been assigned to her, her dower right is merely a right to sue for and compel the setting aside to her of her dower interest, and is not an estate in itself. First Nat'l Exch. Bank v. United States, 335 F.2d 91 (4th Cir. 1964).

Specific performance of a written contract to sell real estate owned in fee by a wife whose husband refuses to release his inchoate curtesy interest should not be decreed unless the purchaser is willing to accept a deed without the relinquishment of such curtesy interest, and asks no abatement in the purchase price set forth in the contract. God v. Hurt, 218 Va. 909 , 241 S.E.2d 800, rev'd on other grounds on rehearing, 219 Va. 160 , 247 S.E.2d 351 (1978).

The heirs could not compel a widow to pay the debts of the estate in order to preserve for herself the life interest allowed as dower under the former law, and, incidentally, to preserve for the heirs the reversionary interest in the property which might be subjected by the creditors. The election was one for the widow and not for the heirs. She could elect to pay the debts and enjoy the income from the property, but she was not bound to do so to protect her interest, nor could the heirs compel her to do so to protect their interest. Morrison v. Morrison, 177 Va. 417 , 14 S.E.2d 322 (1941).

Widow can exercise her dower rights either at law or in equity. The fact that an equitable remedy exists in addition to a legal remedy does not mean that the statute of limitations for entry to land does not apply. Devers v. Chateau Corp., 748 F.2d 902 (4th Cir. 1984).

Statute of limitations. - The 15-year statute of limitations ( § 8.01-236 ) applies to an action to insure the dower rights of a widow. Devers v. Chateau Corp., 748 F.2d 902 (4th Cir. 1984), aff'd in part, rev'd in part, 792 F.2d 1278 (4th Cir. 1986).

II. SYNONYMOUS TERMS.

Husband can acquire sole and separate equitable estate. - Former § 64.1-19.1 was ambiguous and incomplete as to the treatment to be given words that may be associated with "dower" and "curtesy" in statutes. But when this section and former § 64.1-21 were read together, it was manifest and a husband could acquire a sole and separate equitable estate in realty in Virginia. Jacobs v. Meade, 227 Va. 284 , 315 S.E.2d 383 (1984).

No right to dower in equitable separate estate where excluded by instrument creating it. - Former § 64.1-21 when construed with former § 64.1-19.1 provided that a surviving wife should not be entitled to dower in the equitable separate estate of the deceased husband if such right thereto had been expressly excluded by the instrument creating the same, or if such instrument described the estate as his sole and separate equitable estate. Jacobs v. Meade, 227 Va. 284 , 315 S.E.2d 383 (1984).

III. DESERTION.

Justifiable desertion. - Where the wife left the husband because of frequent and continued drunken sprees during which he was quarrelsome, disorderly and dangerous, and inflicted great cruelty upon her, she did not of her own free will desert her husband, refusing to return to him without just cause, and former § 64.1-23 was not applicable. Harman v. Harman, 139 Va. 508 , 124 S.E. 273 (1924).

The mere facts that the wife leaves the home and that her husband remains there do not make this section applicable. If the leaving of the home by the wife is caused by such conduct on the part of the husband that the husband is guilty of constructive desertion of the wife, certainly where such constructive desertion consists of actual, physical cruelty on the part of the husband, in such a degree as to cause the wife to leave, and justify her in leaving the home to protect herself therefrom, it is not a voluntary leaving. Harman v. Harman, 139 Va. 508 , 124 S.E. 273 (1924).

Former § 64.1-23 had no application where damages are sought under the death by wrongful act statutes ( §§ 8.01-50 through 8.01-56 ), because the damages recoverable in such an action are no part of the estate of the decedent. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944).

IV. SURPLUS AFTER LIEN.

Purpose. - Prior to reenactment, was to give the wife in her husband's lifetime an interest in the equity of redemption, contingent, however, upon her surviving her husband. It was to give the inchoate and contingent dower of the wife the power to attach to the equity of redemption, during his lifetime, so that after a sale in her husband's lifetime, it would survive and be enforceable against his equity of redemption in the lands after his death, just as if the sale had been made after his death. Hoy v. Varner, 100 Va. 600 , 42 S.E. 690 (1902).

The object of former § 64.1-28 seemed to be to provide for a case in which the land was sold in the lifetime of the husband, when the wife had a mere contingent right of dower. Robinson v. Shacklett, 70 Va. (29 Gratt.) 99 (1877).

Surviving spouse entitled to only one third of surplus. - The widow is entitled to dower in what remains of the land after satisfying the encumbrances; and by "dower in such surplus" is meant one third of such surplus. Hoy v. Varner, 100 Va. 600 , 42 S.E. 690 (1902).

The terms of former § 64.1-28 left it in doubt whether the wife, in taking her dower "in the surplus," was to take out of the surplus only one third of the surplus or was to take one third of the value of the whole tract subjected to the lien. But it is now settled in Virginia that the dower is to consist of one third of the surplus only, not only under the statute where the land is sold under the lien in the husband's lifetime, but also independently of statute where the land is sold under the lien after the husband's death. Poteet v. International Harvester Co., 153 Va. 304 , 149 S.E. 512 (1929).

And when heirs redeem surviving spouse does not take dower in the whole land. - Former § 64.1-28 did not indicate, either by inference or otherwise, that where mortgaged lands, in which the dower is relinquished, are sold after the husband's death, or where the equity of redemption descends to the heirs and they have redeemed the land, the widow shall take dower in the whole land. Hoy v. Varner, 100 Va. 600 , 42 S.E. 690 (1902).

Purchaser of land is not liable for application of purchase money. - Although former § 64.1-28 provided that the widow shall be entitled to dower in the surplus, it did not make the land in the hands of a bona fide purchaser at a judicial sale thereof liable for her claim, nor was the purchaser bound to see to the application of the purchase money. Hurst v. Dulaney, 87 Va. 444 , 12 S.E. 800 (1891).

V. JOINTURE.

Former § 64.1-29 and § 64.1-32 must be read together. The former is qualified by the latter. The devise for the jointure of the wife shall bar her dower of the real estate unless her jointure be lawfully taken from her. Livermon v. Lloyd, 159 Va. 565 , 166 S.E. 475 (1932).

Husband may make devise to wife for her jointure. - The legislature by enacting former § 64.1-29 expressly authorized a husband to make a devise to the wife for her jointure to be in lieu of dower, and, if a devise were so made to her, it should be construed to be in lieu of dower unless a contrary intention appear from the will or some other writing signed by the party making the provision. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

The essentials of former § 64.1-29 were that the conveyance or devise must be "intended to be in lieu of dower," it must be "for the jointure of the wife," and it must take effect "upon the death of her husband." Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

One of the essential elements in practically every definition of jointure in lieu of dower is that it is an estate that must take effect in possession immediately on the death of the husband and continue during the life of the wife at least. Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201 (1945).

"Every such provision" means a conveyance or devise "for the jointure of the wife." Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

And the word "devise," which would create jointure, implies that it must be embraced in an unrevoked will. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

Language held rule of construction and not property. - The last portion of former § 64.1-29 "every such provision . . . was intended to be in lieu of dower unless the contrary intention plainly appear in such deed or will or in some other writing signed by the party making the provision" has been held to be a rule of construction and not a rule of property. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943); Bolling v. Bolling, 88 Va. 524 , 14 S.E. 67 (1891).

Section must be reasonably construed. - The provision of former § 64.1-29 that a conveyance or devise for the jointure of the wife was taken to be intended in lieu of dower must be reasonably construed, and the estate given must bear some fair relation in value to that of the estate released. McDonald v. McDonald, 169 Va. 752 , 194 S.E. 709 (1938), overruled on another point in Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201 (1945).

Former § 64.1-29 did not require a consideration, nor is a statement of the intent of the settlement required. If the husband does not intend or desire the conveyance, or settlement, to operate as a jointure he must so declare it in the instrument. Tusing v. Tusing, 169 Va. 769 , 194 S.E. 676 (1937), overruled on another point in Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201 (1945).

The only change made by former § 64.1-29 in the common law was that the jointure may be of personal as well as real estate. Land v. Shipp, 98 Va. 284 , 36 S.E. 391 (1900); Tusing v. Tusing, 169 Va. 769 , 194 S.E. 676 (1937), overruled on another point in Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201 (1945).

It has no application to foreign wills of personalty. - Former § 64.1-29 has not changed the rule of the common law that wills of personalty are to be construed according to the law of the place of the testator's domicile. Thus, where a testator, domiciled in New York, bequeathed personal property to his wife, but made no disposition of his realty in Virginia, and there is no incompatibility between her claim for dower and her claim to the provision, the testator's intention must be construed according to the law of New York. Bolling v. Bolling, 88 Va. 524 , 14 S.E. 67 (1891).

The conveyance or devise must be to the woman as a wife, or at least to the wife in expectancy, and it must constitute jointure in lieu of dower. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

Devise when no intention of marrying existed. - Former §§ 64.1-64.1-30 did not necessarily contemplate as jointure a devise by an unmarried man to a woman whom he later marries, when, at the time the devise was made, he had no intention of marrying, and no intention to create a jointure estate. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

Conveyance may be by other than prospective husband. - Former § 64.1-29 did not change the rule that jointure is an estate conveyed to the prospective husband and wife, jointly and before the marriage, by another person. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

The estate intended to be in lieu of dower may be conveyed or devised to the intended wife by anyone other than the intended husband. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

A conveyance taking effect in praesenti is not jointure. - Jointure, under former § 64.1-29, does not include an estate conveyed to the wife to take effect in praesenti. Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201 (1945), overruling McDonald v. McDonald, 169 Va. 752 , 194 S.E. 709 (1938) on this point.

Widow who accepts jointure not entitled to dower in property as to which husband died intestate. - Where a testator by his will gave his wife one third of his personal estate in fee and one third of his real estate for life, and under former § 64.1-29 this provision was intended to be in lieu of dower, his widow, unless she waived jointure as provided in former § 64.1-30 would not be entitled to dower in the remaining two thirds of the real estate, although the testator's disposition of that portion of his property had been declared void so that as to it he died intestate. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312 (1958).

Section not applicable where widow is willed all of her husband's estate. Snidow v. Snidow, 192 Va. 60 , 63 S.E.2d 620 (1951).

Widow cannot have both jointure and dower. - It is clearly provided that the widow cannot have both jointure and dower. She must choose one or the other. She may waive what the husband has given her by the will or by deed in lieu of her dower and claim dower in his real estate; but if she does, she must relinquish what the will or the deed has given her as jointure, because that is what the statute in express terms requires. She cannot have both. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312 (1958).

This section was intended to provide how a widow must proceed who desires to reject the provision made for her by her husband's will out of property other than her own, and to take such interest in his lands as the law gives her. Pence v. Life, 104 Va. 518 , 52 S.E. 257 (1905); Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 900 (1910).

And was enacted on the theory that it was the natural inclination of a surviving consort to accept and follow the wishes of the deceased consort as expressed in a will. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

In a case where this section does apply an election to accept may be express or implied. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

And in such case clear proof of an election made must be furnished, and ambiguous acts and conduct will in general not be so construed. But such election, either to affirm or renounce the will, need not be express, but may be implied by conduct, acts, omissions and mode of dealing with the property. Pence v. Life, 104 Va. 518 , 52 S.E. 257 (1905); Showalter v. Showalter, 107 Va. 713 , 60 S.E. 48 (1908); Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 900 (1910); Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

And will not be binding if made under mistake and in ignorance of the real estate of the property involved. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

Devise may be made before marriage. - This section makes it appear that the will in which the provision for jointure is to be made may be made before the marriage. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354 (1943).

A bequest and devise to a wife for the use of her children, confers no beneficial interest and cannot be construed as a jointure in bar of dower. Blunt v. Gee, 9 Va. (5 Call) 481 (1805).

Where a husband disposes of property belonging to a wife in her own right, and also makes provision for her by his will, this section has no application, and the wife is put to an ordinary election. Pence v. Life, 104 Va. 518 , 52 S.E. 257 (1905); Showalter v. Showalter, 107 Va. 713 , 60 S.E. 48 (1908); Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 900 (1910).

VI. ENTITLEMENT BEFORE ASSIGNMENT.

Widow's quarantine at common law. - Former § 64.1-33 was a substitute for what is known at common law as the widow's quarantine - a right to hold and occupy the capital message or mansion house for 40 days after the husband's death, and during that time to be provided with all necessaries at the expense of the heir, and, before the termination of 40 days, to have her dower assigned her. If, however, the 40 days expired without her dower being assigned, she might be turned out of possession, and put to her action for the recovery of her dower. Simmons v. Lyles, 73 Va. (32 Gratt.) 752 (1880).

Is extended by this section. - The effect of former § 64.1-33 was merely to extend the quarantine. The object manifestly was to coerce the heir to assign dower, and until this was done, to protect the widow in the enjoyment of the homestead and the rents and profits accruing therefrom. The widow has no vested estate in the mansion house, "but a mere right to hold and occupy until dower is assigned her. It is but a permissive possession, determinable whenever the heir or person holding the fee elects to assign dower." Simmons v. Lyles, 73 Va. (32 Gratt.) 752 (1880).

Widow not a tenant of the land until dower assigned. - While a widow has certain rights and privileges accorded her by former § 64.1-33 with reference to her husband's real estate prior to the assignment of dower, it is the assignment of dower which creates her a tenant of the land in severalty for life. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

Waiver of widow's right to occupy mansion house. - While the widow's right to occupy the mansion house between the date of the death of her husband and the time dower is assigned to her is an important right and of ancient origin, it is a right which may be waived and is waived by her voluntary abandonment of the property. Owen v. Lee, 185 Va. 160 , 37 S.E.2d 848 (1946).

Widow may allow another to occupy mansion house for her. - A widow might occupy the mansion house and land thereto herself, or allow another to do it for her. McReynolds v. Counts, 50 Va. (9 Gratt.) 242 (1852).

Surviving spouse paying taxes on curtesy property, etc., not volunteer. - Surviving spouse, in paying the taxes on curtesy property, making improvements and discharging the lien thereon, cannot be considered a volunteer. He was in possession as the surviving spouse, under this section, awaiting assignment of his curtesy, and he had the right to make the payments for his own protection and indemnity and to look to the property for reimbursement. Colbert v. Priester, 214 Va. 606 , 203 S.E.2d 134 (1974).

Reimbursement of widow for taxes and purchase money paid. - Where a widow remains in the mansion house, no assignment of dower being made, and pays a balance of the purchase money due for the property, and the taxes due thereon, as against judgment creditors of her late husband, she is entitled to be paid the amount of the taxes she has paid, and so much of the purchase money paid by her as was properly payable by the heirs. Simmons v. Lyles, 73 Va. (32 Gratt.) 752 (1880).

VII. ASSIGNMENT AND RECOVERY.

When assignment of commissioners binding. - An assignment of dower made by commissioners, under an order of court, at the instance of one of several coheirs, is binding on the widow, provided it be a full and just assignment; and it is binding, also, on the coheirs, provided the assignment is not excessive. Moore v. Waller, 23 Va. (2 Rand.) 418 (1824).

Payment of commuted dower interest qualifies for federal estate tax marital deduction. - Payment made to the widow for the commuted value of her dower interest qualifies for the federal estate tax marital deduction. National Bank v. United States, 218 F. Supp. 907 (E.D. Va. 1963).

By taking dower out of terminable interest rule. - The commutation of the dower right and its payment in cash takes it out of the terminable interest rule for purposes of the marital tax deduction. First Nat'l Exch. Bank v. United States, 217 F. Supp. 604 (W.D. Va. 1963), aff'd, 335 F.2d 91 (4th Cir. 1964).

Since payment in cash is not terminable interest. - Where widow never had any right to have her dower right assigned to her in land since it was not susceptible of assignment in kind, and had the right commuted and paid to her in cash under this section, she thus acquired cash which was not a terminable interest for purpose of the federal estate tax marital deduction. First Nat'l Exch. Bank v. United States, 217 F. Supp. 604 (W.D. Va. 1963), aff'd, 335 F.2d 91 (4th Cir. 1964); National Bank v. United States, 218 F. Supp. 907 (E.D. Va. 1963).

Bill for dower and other relief. - A widow entitled to dower may, under this section, file her bill in equity to recover the same, and jurisdiction, having attached for that purpose, is not affected by the fact that her bill prays for relief to which she is not entitled. In a suit to recover dower, a defendant entitled to partition may, by crossbill, upon a proper showing, ask to have the land sold for the purpose of partition as well as assignment of dower. Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 (1910).

This section was enacted for the benefit of alienees, independent of the widow's wishes. But to have the benefit of this section the alienee must not only elect to pay the annual interest therein provided, but must actually pay it. Such payment is the condition and the consideration upon which alienee's right to the continued possession of her interest in the land depends. Dickenson v. Gray, 100 Va. 526 , 42 S.E. 298 (1902).

But not intended to deprive widow of dower in kind. - But it was not the intention of the law-making power, in the enactment of this section to deprive the widow of her right to dower in kind by merely giving her a personal decree against the alienee for annual interest on its value. It is the payment of the annual interest, which interest is in a sense the purchase price of her property, and not merely a personal decree against the alienee, which bars her right to have dower in kind assigned. Dickenson v. Gray, 100 Va. 526 , 42 S.E. 298 (1902).

This section permits alienees to elect to keep the property and pay the surviving spouse interest on one-third of the value of the deceased spouse's interest in the realty. Devers v. Chateau Corp., 792 F.2d 1278 (4th Cir. 1986).

Section properly applied. - Where there was nothing in the record that indicated an attempt to defraud wife by owners, to whom deceased husband had conveyed property without wife's knowledge or consent, and no mention of wife in the chain of title, the relevant deeds in fact reciting that husband was divorced and not remarried, it was proper to apply this section. Devers v. Chateau Corp., 792 F.2d 1278 (4th Cir. 1986).

§ 64.2-302. When and how elective share may be claimed by surviving spouse.

  1. A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent's will or (ii) the decedent dies intestate.
  2. The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent's augmented estate within six months from the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1.
  3. The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent's domicile at death.

    (Code 1950, § 64-13; 1968, c. 656, § 64.1-13; 1990, c. 831; 1995, c. 211; 2012, c. 614.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 6 ( § 55.1-600 et seq.) of Title 55.1" for "Chapter 6 ( § 55-106 et seq.) of Title 55."

Law review. - For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For annual survey essay, "Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins," 44 U. Rich. L. Rev. 149 (2009).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.01 In Virginia - Overview, et seq. Cox.

Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate, et seq.; No. 6-715 Checklist for Guardian ad litem's Report; No. 15-447 Claim for Elective Share of Augmented Estate, et seq.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

This section and §§ 64.1-14 and 64.1-16 are confined to personal property. Blunt v. Gee, 9 Va. (5 Call) 481 (1805); Ambler v. Norton, 14 Va. (4 Hen. & M.) 23 (1809); Wiseley v. Findlay, 24 Va. (3 Rand.) 361 (1825).

These sections were enacted on the theory that it was the natural inclination of a surviving consort to accept and follow the wishes of the deceased consort as expressed in a will. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

Widow's right is absolute and certain. - The widow's right to her share of her deceased husband's estate secured to her by the statute allowing renunciation is an absolute, paramount and certain right which her husband may not deny her. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

The one-year (now six-month) limitation in this section merely restricts the time in which the right may be availed of and does not lessen its certainty. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

Acknowledgment requirement. - Because a widow's original petition for contribution to enforce her right to an elective share was not acknowledged, it failed to comply with the requirements of §§ 64.1-13 and 55-106; because a later filing was not filed within the six-month time period required by § 64.1-13, the trial court properly sustained a son's demurrer. Haley v. Haley, 272 Va. 703 , 636 S.E.2d 400 (2006).

Effect of agreement in bar of dower. - By an agreement in contemplation of marriage, the intended husband bound his estate to pay to his intended wife certain sums of money if she survived him, which were to be in bar of and in full compensation for her dower. This agreement, although a bar to her claiming dower in her husband's real estate, does not deprive her of her distributive share of his personal estate. Findley's Ex'rs v. Findley, 52 Va. (11 Gratt.) 434 (1854).

Defeating distributive share during lifetime. - The husband had the power according to the modern common law to alienate by sale or gift in his lifetime the whole or any part of his personal estate and thereby exclude his wife from any interest therein. This power is impliedly recognized by the statutes. Gentry v. Bailey, 47 Va. (6 Gratt.) 594 (1850).

While a husband cannot by will defeat his wife's claim to her distributive share in his personal estate, he may do so by an irrevocable disposition of his property in his lifetime, although he secures a life estate to himself and his purpose is to defeat the claim of his wife as one of his distributees. An irrevocable deed of trust is not to be considered a will in disguise merely because it disposes of nearly all of grantor's personal estate and reserves to the grantor the possession and control of the property during his life. Hall v. Hall, 109 Va. 117 , 63 S.E. 420 (1909). See also Lightfoot's Ex'rs v. Colgin, 19 Va. (5 Munf.) 42 (1813); Ruth v. Owens, 23 Va. (2 Rand.) 507 (1824); Gentry v. Bailey, 47 Va. (6 Gratt.) 594 (1850); Freed v. Judith Realty & Farm Prods. Corp., 201 Va. 791 , 113 S.E.2d 850 (1960).

Two circumstances must concur to render the gift testamentary in its nature: one is, that it is not to be substantially effective till his death; and the other is, that the husband does not divest himself of the capacity to recall it, and so resume to himself or his estate the ownership granted. Ruth v. Owens, 23 Va. (2 Rand.) 507 (1824).

Deed of settlement and necessity of renouncing will. - A husband made a deed of settlement of property upon his wife, and then by will made a disposition of the property, different from that made by the deed of settlement, and far less beneficial to the wife, and died. The wife took administration with the will annexed. The widow may claim under the deed of settlement, without having renounced the provision made for her by the will according to the statute. Taylor v. Browne, 29 Va. (2 Leigh) 419 (1830).

Clear proof of election must be furnished, and ambiguous acts and conduct will in general not be so construed unless in those cases where the interests of others have been affected by the acts. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

Election of widow to take under will may be express or implied from acts and conduct, such as acceptance and acquiescence. There are no steps, formal or otherwise, prescribed by this section for an election to accept the testamentary provisions. No action - mere silence - for a year is conclusive. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

But it must have been with a knowledge of her rights, and with the intention of electing. Election to take under will was revocable where widow did not know what her statutory rights were and also was ignorant to a large extent of the amount of her husband's estate. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

Widow must know or have opportunity to ascertain relative values of property. - The legislature intended that, in order for an election to be effective, the party required to elect must know or have full opportunity to ascertain the relative values accruing before making an election. Batleman v. Rubin, 199 Va. 156 , 98 S.E.2d 519 (1957), quoting Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941).

Manner of renouncing. - A widow cannot effectually renounce the provision made for her by the will of her husband, so as to entitle herself as distributee, but by declaration made within one year after the husband's death, before the general court, or court having jurisdiction of the probate of the will, or by deed executed in the presence of two or more credible witnesses (now, under § 64.1-13, by acknowledged, or proven, and recorded writing). Kinnaird Ex'r v. Williams's Adm'r, 35 Va. (8 Leigh) 400 (1836).

Under the circumstances of the case the widow was within her rights in renouncing the will, and the paper signed, acknowledged and recorded by her, and exhibited with the bill, was sufficient evidence of election and renunciation under this section. Showalter v. Showalter, 107 Va. 713 , 60 S.E. 48 (1908).

Effect of acceptance. - The testator by his will, gave real and personal estate to his wife, and left part of his personal estate undisposed of. The wife did not renounce, but accepted, the provision made for her by the will. She was excluded, by the statute, from any share of her husband's personal estate undisposed of by his will. Dupree's Adm'r v. Cary, 33 Va. (6 Leigh) 36 (1835); Thornton v. Winston, 31 Va. (4 Leigh) 152 (1833).

When the widow fails to renounce within a year, and thus by her inaction elects to abide by the will and accept the provisions, if any, made for her therein, she is not a mere donee under the instrument. She is considered a purchaser for value of the property willed to her for she has, by taking under the will, given up and released the absolute and paramount right secured her by statute which she could obtain by renunciation. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

No power to renounce conferred on guardian or committee. - The language of this section contains no purpose or intent to give to the guardian or committee of an insane widow or widower the power to renounce the provisions of a will made for her or him, and thus, clearly there is no implication that can be justly drawn from the language that would confer such a power. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

Attempted renunciation of husband's will filed by guardian of insane widow was held ineffective to accomplish the purpose desired. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

But if the widow is incompetent the court must either renounce or decline to renounce for her. It may not, in lieu of such action, enter into a business arrangement proposed for the widow by interested legatees. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

Test for competency to execute notice of claim. - At the time an election is made under § 64.1-13, the surviving spouse must have the capacity to understand his right to elect against the will and receive a share of the estate established by law and to know that he is making such an election; competency to execute the notice of claim does not require a surviving spouse to know the specific amount that will be received as a result of such an election, and whether he exercises good judgment when making an election is not relevant to the issue of mental capacity to make such a choice. Jones v. Peacock, 267 Va. 16 , 591 S.E.2d 83 (2004).

Trial court erred by applying the contract and deed standard of mental capacity to a father's execution of a claim for an elective share of his deceased wife's augmented estate; under the correct standard - that he had the capacity to understand his right to elect against the will and receive a share of the estate established by law and to know that he was making such an election - an executor failed to prove the father was not competent, as his doctors did not indicate he lacked the mental capacity to execute the notice of claim, and lay testimony indicated that he was alert and had read the claim before signing it. Jones v. Peacock, 267 Va. 16 , 591 S.E.2d 83 (2004).

Interpretation with laws exempting state retirement and insurance plans from legal process. - Trial court properly held that a widow had no claim on benefits from a decedent's retirement and life insurance, which named his sister and niece as beneficiaries, as state laws which exempted such benefits from legal process, including §§ 51.1-124.4, 51.1-510, and 38.2-3339 , existed as an exception to the augmented estate laws. Sexton v. Cornett, 271 Va. 251 , 623 S.E.2d 898 (2006).

Facts court should consider. - As to what facts and circumstances chancellor should consider in deciding to renounce or not to renounce a will for an incompetent widow or widower, see First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

Burden of proof. - Trial court did not err by placing the burden of proving that investment accounts and land which a spouse owned when she died should be excluded from her augmented estate, pursuant to § 64.1-16.1, or by finding that the deceased spouse's estate did not meet its burden of proof. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584 (2003).

Applied in Tuttle v. Webb, 284 Va. 319 , 731 S.E.2d 909 (2012).

CIRCUIT COURT OPINIONS

Spouse's signature not required. - Plain statutory language for requirement of taking an elective share did not require that a surviving spouse sign the written claim for the elective share, as the statutory words "in person" modified only "before the court," and did not modify" by writing," which was construed according to regular requirements for admission of recorded documents. Grubb v. Yacoub, 86 Va. Cir. 503, 2013 Va. Cir. LEXIS 64 (Fairfax County July 3, 2013).

Signature of power of attorney for surviving spouse valid. - Claim for an elective share signed and properly acknowledged by the attorney-in-fact for the surviving husband pursuant to a power of attorney was statutorily valid, although it was not signed by the husband himself, as it met the requirements for recordation of documents generally. Grubb v. Yacoub, 86 Va. Cir. 503, 2013 Va. Cir. LEXIS 64 (Fairfax County July 3, 2013).

Nullity of election. - Widow was entitled to summary judgment in an executor's action to bar her from taking a general bequest made by testator in his duly probated last will and testament because the widow's election was a nullity where the widow claimed her elective share under the mistaken belief that her pre-marital agreement with testator was void and unconscionable. Perez v. Draskinis, 89 Va. Cir. 298, 2014 Va. Cir. LEXIS 149 (Roanoke County Nov. 13, 2014).

Waiver. - Wife waived her right to claim an elective share because the prenuptial agreement specifically stated that each party waived any and all rights of every kind, nature, and description as spouse or surviving spouse; the wife's motion for an extension of time to file for the elective share was denied on the grounds that she waived her claim, pursuant to the terms and conditions of the prenuptial agreement. Algabi v. Dagvadorj,, 2020 Va. Cir. LEXIS 193 (Loudoun County Oct. 19, 2020).

Motion to reconsider. - Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse's elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County 2005) (decided under prior law).

§ 64.2-303. Extension of time until after determination of action for construction of will or extent of augmented estate.

If (i) a will is of doubtful import as to the amount or value of the property the surviving spouse of the decedent is to receive thereunder or (ii) the composition or value of the augmented estate is uncertain, and an action to resolve such issues is pending, the court in which the action is pending shall, upon the application of the surviving spouse made within the six-month period set forth in § 64.2-302 , enter an order extending the time within which the surviving spouse may make a claim for an elective share. Such additional period within which to make a claim for an elective share shall not exceed 90 days after a final order has been entered in such suit, either by a trial court or any appellate court to which it is appealed.

(Code 1950, § 64-14; 1968, c. 656, § 64.1-14; 1990, c. 831; 2012, c. 614.)

Cross references. - For rules of court in civil actions, see Rules 3:1 through 3:23.

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).

CASE NOTES

Suit to construe will of doubtful import. - A widow brought suit against the executor of the estate of her deceased husband, and the beneficiaries named in his will, praying that the court construe an antenuptial contract made between her and testator, and certain parts of the will, and to declare: (1) whether the antenuptial contract was valid and binding on her; (2) whether the will cancelled or terminated the antenuptial contract; (3) whether $15,000 found in testator's safe deposit box was an asset of testator's estate or the property of two of the respondents; (4) whether she was under any obligation to assume in whole or in part the cost of maintaining the house formerly occupied by her and her husband. The suit was one to construe a will of doubtful import, and therefore the court had jurisdiction to extend the time within which she could accept or renounce the will. Batleman v. Rubin, 199 Va. 156 , 98 S.E.2d 519 (1957)(decided under prior law).

§ 64.2-304. Rights upon claiming an elective share.

If a claim for an elective share is made, the surviving spouse is entitled to (i) one-third of the decedent's augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent's augmented estate if the decedent left no surviving children or their descendants. The surviving spouse is entitled to interest at the legal rate specified in § 6.2-301 from the date of the decedent's death to the date of satisfaction of the elective share.

(Code 1950, § 64-16; 1968, c. 656, § 64.1-16; 1978, c. 647; 1986, c. 526; 1990, c. 831; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973). For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978). For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

Research References. - Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate; No. 15-447 Claim for Elective Share of Augmented Estate.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Effect of renunciation. - Widow's renunciation of will will not disappoint testator's will and unsettle his disposition of his property further than may be necessary to enforce her rights. Mitchells v. Johnsons, 33 Va. (6 Leigh) 461 (1835); Morriss v. Garland, 78 Va. 215 (1883).

An election to take under the statute forfeits all rights enjoyed and provisions made for the widow or widower in the consort's will. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797 (1953).

Section defines statutory share of renouncing widow. - The statutory share of a widow who renounces the provisions made for her in her husband's will is defined in this section and § 64.1-11. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

A renouncing widow is entitled to one third of the income earned on all the assets of the estate during the period of administration which is not used to pay funeral expenses, costs of administration and debts. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

A surviving spouse who has elected to take against the will of the deceased spouse is entitled to her statutory share of the income earned on all the personal assets of decedent's estate during the period of administration. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Compensation to legatees. - Where the widow renounced the will, the profits of the property, real and personal, given to the wife for life by the will, which accrued during her life, shall be applied to compensate those of the testator's devisees and legatees out of whose devises and legacies the widow's dower and distributive share were taken. Mitchells v. Johnsons, 33 Va. (6 Leigh) 461 (1835).

Where the widow renounced the will, two thirds of the land remaining after the assignment of the widow's dower were to be applied to indemnify the legatees of the personal estate for the loss they sustained by the widow's renunciation of the provision made for her by the will, and claim of her third of the personal estate. For this purpose the two thirds of the land were to be rented out and the proceeds applied to the satisfaction of the legatees. McReynolds v. Counts, 50 Va. (9 Gratt.) 242 (1852).

Husband by his will gave to his wife certain personal estate absolutely and a tract of land for life, but after his death she renounced the will in the mode prescribed by the statute. She was not entitled to take under the will what was thereby given to her. But the property bequeathed to her was to be applied to compensate the legatees who were disappointed by her taking distributable share of the personal estate. Findley's Ex'rs v. Findley, 52 Va. (11 Gratt.) 434 (1854).

Widow who does not renounce takes only what will gives her. - When personal property is given to the wife by a will which she does not renounce, she takes only what the will gives her, according to the specific provision of this section, and necessarily the general provision of § 64.1-11, dealing with cases where there is no will or one that does not dispose of all personal property, does not apply. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312 (1958), commented on in 44 Va. L. Rev. 1393 (1958).

And is not entitled to share in property as to which husband died intestate. - Where a testator by his will gave to his wife one third of his personal property, and his disposition of the other two thirds was declared void so that as to it he in effect died intestate, his widow, unless she renounced the will, would take only the one third share that it gave her, and there was no merit to her argument that she was entitled, independently of the will, to the remaining two thirds by virtue of § 64.1-11. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312 (1958), commented on in 44 Va. L. Rev. 1393 (1958).

Increase in value of estate where renunciation not recognized. - Where executor-beneficiaries refused to recognize the right of the husband to receive his share of his wife's estate at the time of his wife's death or at the date of his renunciation and the estate increased in value, the executor-beneficiaries should not be permitted to profit by their own recalcitrant attitude. Edwards v. Cuthbert, 184 Va. 502 , 36 S.E.2d 1 (1945).

CIRCUIT COURT OPINIONS

Discount of fractional shares conveyed. - Where those liable for an elective share did not select the option to pay cash, but conveyed fractional interests in real estate to an heir, the value conveyed of the fractional interests meant ascertaining their fair market value on an individual basis without reference to what impact the transfer of such interest had on those who held title to the property as tenants in common. In re Estate of Smith, 67 Va. Cir. 33, 2005 Va. Cir. LEXIS 8 (Madison County 2005) (decided under prior law).

§ 64.2-305. Augmented estate; exclusions; valuation.

  1. The augmented estate means the decedent's entire estate passing by will or intestate succession, real and personal, after payment of allowances and exemptions under Article 2 (§ 64.2-309 et seq.) of this chapter, funeral expenses, charges of administration that shall not include federal or state transfer taxes, and debts, and to which is added the following amounts:
    1. The value of property, other than tangible personal property received by gift and the proceeds thereof, owned or acquired by the surviving spouse at the decedent's death, to the extent the property is derived from the decedent by any means other than by will or intestate succession without full consideration in money or money's worth;
    2. The value of property, other than tangible personal property received by gift and the proceeds thereof, derived by the surviving spouse from the decedent without full consideration in money or money's worth by any means other than by will or intestate succession, and transferred by the surviving spouse at any time during the marriage to a person other than the decedent, which would have been includable in the surviving spouse's augmented estate if the surviving spouse had predeceased the decedent; and
    3. The value of property transferred to anyone other than a bona fide purchaser by the decedent at any time during the marriage to the surviving spouse, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive full consideration in money or money's worth for the transfer, if the transfer was any of the following types:
      1. Any transfer under which the decedent retained for his life, for any period not ascertainable without reference to his death, or for any period which does not in fact end before his death, the possession or enjoyment of, or the right to income from, the property;
      2. Any transfer to the extent that the decedent retained for his life, for any period not ascertainable without reference to his death, or for any period which does not in fact end before his death, the power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for his own benefit;
      3. Any transfer whereby property is held at the time of the decedent's death by the decedent and another with right of survivorship; or
      4. Any transfer made to or for the benefit of a donee within the calendar year of the decedent's death or any of the five preceding calendar years to the extent that the aggregate value of the transfers to the donee exceeds the amount specified in § 2503(b) of the Internal Revenue Code of 1986, as amended, for that calendar year, without regard to whether the federal gift tax exclusion applies to the transfer.
  2. Notwithstanding the provisions of this section, the augmented estate shall not include (i) the value of any property transferred by the decedent during marriage with the written consent or joinder of the surviving spouse; (ii) the value of any property, its income, or proceeds received by the decedent, before or during the marriage to the surviving spouse, by gift, will, intestate succession, or any other method or form of transfer to the extent it was (a) received without full consideration in money or money's worth from a person other than the surviving spouse, and (b) maintained by the decedent as separate property; (iii) any transfer made to anyone other than the surviving spouse prior to January 1, 1991, to the extent that such transfer was irrevocable on that date; or (iv) the value of any property excluded from the augmented estate pursuant to § 64.2-317 .
  3. Property is valued as of the decedent's death, except that property irrevocably transferred during the lifetime of the decedent is valued as of the date the transferee came into possession or enjoyment of the property if such date precedes the date of the decedent's death.
    1. Life estates and remainder interests are valued in the manner prescribed in Chapter 5 (§ 55.1-500 et seq.) of Title 55.1, and deferred payments and estates for years are discounted to present value using the interest rate specified in § 55.1-500 .
    2. The value of an insurance policy that is irrevocably transferred during the lifetime of a decedent is the cost of a comparable policy on the date of the transfer or, if such a policy is not readily available, the policy's interpolated terminal reserve. The value of any premiums paid on an insurance policy owned by another person is only the amount of the premiums paid and not the insurance purchased or maintained with such premiums.
    3. An initial interest in property owned as a joint tenant with survivorship is valued at the time the interest is acquired, and a further interest received upon the death of a cotenant is valued at the time of the cotenant's death. Property owned jointly by persons married to each other is rebuttably presumed to have been acquired with contributions of equal value by each tenant. The mere creation of an indebtedness secured by jointly owned property is not a contribution to its acquisition, but any satisfaction of such an indebtedness is a contribution. An interest in a tenancy by the entireties is valued as if it were an interest in a joint tenancy with survivorship. Joint accounts in financial institutions are valued in accordance with the provisions of Article 2 (§ 6.2-604 et seq.) of Chapter 6 of Title 6.2. (1990, c. 831, § 64.1-16.1; 1992, cc. 617, 647; 1998, c. 234; 1999, c. 38; 2007, c. 308; 2012, c. 614; 2014, c. 532.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "Chapter 5 ( § 55.1-500 et seq.) of Title 55.1" for "Article 2 ( § 55- 269.1 et seq.) of Chapter 15 of Title 55" and "55.1-500" for "55-269.1."

The 2014 amendments. - The 2014 amendment by c. 532, in subdivision A 3 d, substituted "the amount specified in § 2503(b) of the Internal Revenue Code of 1986, as amended, for" for "$10,000 in," inserted "without regard to whether the federal gift tax exclusion applies to the transfer," and made a minor stylistic change.

Law review. - For article, "Virginia's Augmented Estate System: An Overview," see 24 U. Rich. L. Rev. 513 (1990).

For 1992 survey of wills, trusts, and estates law in Virginia, see 26 U. Rich. L. Rev. 873 (1992).

For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).

For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.05 Determining and Satisfying the Elective Share. Cox.

Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate, et seq.; No. 15-215. Clause Devising Real Estate; No. 16-505. Deed of Gift for Personal Property - Artwork, et seq.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, § 26.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Applicability. - In arguing that her joint tenancy with her mother was owned unequally, a Chapter 7 debtor's reliance on § 64.2-305 was misplaced, as that provision confined its applicability to married spouses. Scott v. Hoole (In re Hoole),, 2018 Bankr. LEXIS 810 (Bankr. W.D. Va. Mar. 21, 2018).

Rights subordinate to payment of estate debts. - This section plainly expresses the intent that rights be subordinate to payment of estate debts. The debtor's interest, regardless of when it vests, is in the value of the augmented estate. Murray v. Mares, 147 Bankr. 688 (Bankr. E.D. Va. 1992).

Indebtedness. - Where both decedent and her husband, as co-makers of a $50,000 note, became personally liable to the holder of the note for the full amount owed and as between themselves, jointly and severally liable, and because both decedent and her husband became subject to a common burden to be borne equally, each was entitled to the right of contribution from the other for one-half of the joint indebtedness evidenced by the note, the husband should not have been charged with more than one-half of the total indebtedness. Tuttle v. Webb, 284 Va. 319 , 731 S.E.2d 909 (2012).

Separate interest. - Trial court did not err in finding that the late wife's separate property, as identified in the premarital agreement she entered into with the husband, was not to be included in his elective share upon her death, as the plain language of the premarital agreement compelled that result; the husband's claim that the property had to be maintained or repaired in order to keep it separate had to be rejected, as the language of this section referred to keeping a legal interest in the property separate, which the late wife did. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397 (2005).

Burden of proof. - Trial court did not err by placing the burden of proving that investment accounts and land which a spouse owned when she died should be excluded from her augmented estate, pursuant to § 64.1-16.1, or by finding that the deceased spouse's estate did not meet its burden of proof. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584 (2003).

CIRCUIT COURT OPINIONS

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

No waiver of right to claim elective share. - Decedent's husband was awarded his elective share of the decedent's estate, plus his spousal allowances, because the absence of a written premarital or marital agreement, in which the husband waived his right to claim his elective share of the decedent's augmented estate, was fatal to the estate's argument that the husband's claims for his elective share and for the family allowance be denied due to concerns of fairness to the decedent's son, daughter, and grandson. Higham v. Williams,, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).

Group life insurance policy included within estate property. - The terms "estate" and "property" include, within their given definitions, group life insurance policies. Felix-Aranibar v. Felix, 59 Va. Cir. 357, 2002 Va. Cir. LEXIS 231 (Arlington County 2002).

Pre-marriage transfers. - Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent's augmented estate, the surviving spouse was not entitled to an elective share distribution § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County 2006).

Transferred property included in augmented estate because spouse's consent to transfer was not in writing. - Where a decedent had transferred real estate to her daughter, under § 64.1-16.1, the value of this property had to be included in the augmented estate because the decedent reserved a life estate in the property and it was gratuitously transferred less than five years before her death. That her husband did not object to the transfer was immaterial; as he did not consent to the transfer in writing, the property could not be excluded under § 64.1-16.1. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County 2006).

Widow raised fact issue as to whether decedent's real property was maintained as his separate property. - Summary judgment was denied on the issue of whether real property which was willed to the decedent and was titled in the decedent's name only was part of the decedent's augmented estate; the widow was entitled to the opportunity to prove that at least part of the value of the real estate was attributable to the personal efforts of either party during the marriage or to contributions of marital property as described in subdivision A 1 of § 20-107.3 . Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County 2002).

Titling of real estate is not conclusive as to whether the property is maintained as separate property. - Titling of real estate in an individual name is only one consideration in determining whether the property has been maintained as separate property under clause (ii) of subsection B of § 64.1-16.1. Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County 2002).

Decedent's separate property transmuted into marital property by spouse's contributions. - Value of a house a decedent had gratuitously transferred was part of the augmented estate. Though it was her separate property when she married, as her husband's wages were used to make improvements and repairs to the house, it was transmuted into marital property, thereby rendering the separate property limitation of § 64.1-16.1 inapplicable. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County 2006).

Fair market value of fractional interests. - Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse's elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County 2005).

Decedent's husband was awarded his elective share of the decedent's estate, plus his spousal allowances, because the value of bank accounts in the decedent's name, which were payable on her death to her son or her grandson, were included in the decedent's augmented estate; the full value of accounts the decedent owned as joint tenants with rights of survivorship with her son, daughter, and grandson were also included in the augmented estate because the son, daughter and grandson had no practical access to the accounts when they remained the decedent's assets solely controlled by her. Higham v. Williams,, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).

Property included in augmented estate. - Decedent's husband was awarded his elective share of the decedent's estate, plus his spousal allowances, because the entire value of properties the decedent owned with her son and daughter as joint tenants were included in her augmented estate; the estate failed to meet its burden of proving the value of the son's interest in the property he owned with the decedent, and the daughter paid no part of the consideration for the acquisition of the properties she owned with the decedent. Higham v. Williams,, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).

OPINIONS OF THE ATTORNEY GENERAL

Virginia Retirement System benefits are not part of the probate estate and are not subject to probate tax, even if the benefits are included in the calculation of an augmented estate under this section. See opinion of Attorney General to The Honorable Hayden H. Horney, Clerk, Wythe County Circuit Court, 04-25 (5/19/04).

§ 64.2-306. Charging spouse with the value of property received; liability of others for balance of elective share.

  1. In determining the elective share, the value of property included in the augmented estate that passes or has passed to the surviving spouse, or that would have passed to the spouse but was disclaimed, is applied first to satisfy the elective share in order to reduce any contributions due from other recipients of transfers included in the augmented estate.
  2. The recipients of the remaining property of the augmented estate are liable to contribute the balance of the elective share and any interest thereon in proportion to the value of their interests.
  3. The only persons subject to contribution to make up the elective share are (i) an original transferee from or appointee of the decedent, and any subsequent gratuitous inter vivos donee or person claiming by will or intestate succession, to the extent such person has the property or its proceeds on or after the date of the decedent's death, and (ii) a fiduciary, as to the property under the fiduciary's control at or after the time a fiduciary receives notice that a surviving spouse has claimed an elective share in the decedent's estate. A corporate fiduciary shall not be considered to have notice until it receives notice at its address as shown in the decedent's estate papers in the clerk's office or, if there are no such papers or no address is shown therein, at the office of its registered agent.

    No other party is subject to contribution to make up the elective share even though the party makes a payment or transfers an item of property or other benefit to any person with actual knowledge that a surviving spouse has claimed an elective share in the decedent's estate.

  4. Upon the petition of the surviving spouse, the decedent's personal representative, or any party in interest, the court having jurisdiction over the administration of the decedent's estate shall determine the amount of the elective share and the ratable portion of the elective share attributable to each person liable to contribution. Such petition may be brought against fewer than all persons from whom relief could be sought, but no person is subject to contribution in any amount greater than that which he would have been if relief had been secured against all persons subject to contribution.
  5. Within 30 days after the court's determination of the contributions due under subsection D becomes final and not subject to further appeal, any person liable to the surviving spouse for contribution may file with the court a written statement specifying any of the following methods for satisfying his contribution and interest liability:
    1. Conveyance to the surviving spouse of a portion of the property included in the augmented estate equal in value to his liability on the date the contribution statement is filed, or if, on the date of filing, the value of the property included in the augmented estate is less than his liability, conveyance to the surviving spouse of the entire property included in the augmented estate in full satisfaction;
    2. Payment of the value of his liability in cash or, upon agreement of the surviving spouse, other property; or
    3. Partial conveyance and partial payment under subdivisions 1 and 2, provided that the value conveyed and paid is equal to his liability.

      In the event a contribution statement is not filed within 30 days, the court shall enter an order specifying the method by which a person's liability to the surviving spouse shall be satisfied.

      (1990, c. 831, § 64.1-16.2; 1992, cc. 617, 647; 2007, c. 308; 2012, c. 614.)

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.04 The Augmented Estate, et seq. Cox.

Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate, et seq.

CASE NOTES

Burden of proof. - A petition to establish the amount of an elective share may be filed by the surviving spouse, the decedent's personal representative, or any party in interest. Regardless of who files the petition invoking judicial intervention, the party seeking inclusion of property under subsection A of § 64.1-16.1 has the burden of proof under that subsection and the party seeking exclusion of property under subsection B of § 64.1-16.1 carries the burden of establishing such exclusion. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584 (2003) (decided under prior law).

CIRCUIT COURT OPINIONS

Editor's note. - Some of the cases below were decided under former Title 64.1 and prior law.

Designation of beneficiary. - Where a state employee had designated an ex-wife as beneficiary of any accumulated retirement contributions and because the parties' divorce was prior to July 1, 1993, §§ 20-111.1 , 64.1-16.2 C, and 64.1-59 did not apply; as a result, the designation in favor of the ex-wife was not revoked when the parties were divorced. Va. Ret. Sys. v. Bonaparte, 61 Va. Cir. 304, 2003 Va. Cir. LEXIS 129 (Richmond 2003).

Discount of fractional shares conveyed. - Where those liable for an elective share did not select the option to pay cash, but conveyed fractional interests in real estate to an heir, the value conveyed of the fractional interests meant ascertaining their fair market value on an individual basis without reference to what impact the transfer of such interest had on those who held title to the property as tenants in common. In re Estate of Smith, 67 Va. Cir. 33, 2005 Va. Cir. LEXIS 8 (Madison County 2005).

Fair market value of fractional interests. - Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse's elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County 2005).

Proceeds from sale of property in augmented estate. - Half of the proceeds from the sale of property a husband and a wife jointly owned was included in the wife's augmented estate; because it was not established that the deposit of the wife's share into the husband's savings account fell under one of the exceptions in the statute, her share of the proceeds was unaffected by the husband's deposit into his savings account. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).

Pre-marriage transfers. - Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent's augmented estate, the surviving spouse was not entitled to an elective share distribution under § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County 2006).

Assets in decedent's checking account received by spouse by right of survivorship. - Pursuant to § 64.1-16.2, a decedent's assets in checking accounts that her husband received by right of survivorship were applied first to satisfy his elective share. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County 2006).

Surviving spouse protected. - Husband was protected because any transfers by the husband, the surviving spouse, did not put him at risk of disinheritance, and the decision to not include transfers from joint bank accounts in the wife's augmented estate preserved the purpose of the statute. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).

Joint annuity account. - Transferred total of money into a joint annuity account could be marital property rather than separate and individual contributions because funds from a wife's retirement account and a husband's retirement account were deposited into the wife's savings account, a joint account, before being transferred into the annuity account; it was not established by clear and convincing evidence that a wife and a husband intended a joint annuity account to be divided unequally. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).

Money transferred to private accounts marital property. - Money transferred out of a joint account to the husband's private accounts constituted marital property belonging to the husband, not separate property, because there was no evidence rebutting the presumption that the original amount remained segregated. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).

§ 64.2-307. Rights in family residence.

Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent's augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.

(1990, c. 831, § 64.1-16.4; 2012, c. 614.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.06 Rights in Family Residence. Cox.

Virginia Forms (Matthew Bender). No. 15-401 Checklist for Probate and Administration, et seq.

CIRCUIT COURT OPINIONS

Expenses not allowed. - Spouse's payments for lawn maintenance, pest control, and cleaning expenses were not reimburseable under § 64.1-16.4. Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008)(decided under prior law).

§ 64.2-308. Statutory rights barred by desertion or abandonment.

  1. If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.
  2. If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child's estate by intestate succession.

    (1990, c. 831, § 64.1-16.3; 1992, c. 795; 2012, c. 614.)

Law review. - For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

For article, "Undeserving Heirs? - The Case of the 'Terminated Parent'," see 40 U. Rich. L. Rev. 547 (2006).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.08 Loss of Elective Share by Waiver or Abandonment. Cox.

Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate, et seq.; No. 15-447. Claim for Elective Share of Augmented Estate.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 12.1, 12.2.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Definition of "abandonment." - Mindful of the definition of the term "abandonment" in domestic relations cases, when resolving whether a spouse seeking an elective share of the augmented estate of a deceased spouse abandoned the deceased spouse, the word "abandonment" means a termination of the normal indicia of a marital relationship combined with an intent to abandon the marital relationship. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885 (2008).

Willful abandonment. - Spouse seeking an elective share of the augmented estate of a deceased spouse was not entitled to such relief because the spouse willfully abandoned the decedent before and continuing until the decedent's death, as, properly considering facts occurring both before and after the spouse and decedent voluntarily separated, the spouse's conduct showed a lack of support for the decedent and the marital relationship, because: (1) while living together or apart, the spouse gave the decedent little or no support or care during the decedent's illnesses and recoveries; (2) financially, the decedent managed rental properties the decedent brought into the marriage alone while living with the spouse, who did not contribute to the decedent's support in this regard; (3) after the parties' separation, the spouse apparently did not communicate with the decedent in any meaningful way since the spouse did not know the decedent lived in another state and did not acknowledge the decedent's final illness; (4) the spouse did not support the decedent financially, emotionally, or physically; (5) nothing showed the spouse tried or intended to reconcile with the decedent; and (6) when the decedent died, the spouse had ceased any marital duties. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885 (2008).

Time period for determining abandonment. - When determining whether a spouse seeking an elective share of the augmented estate of a deceased spouse willfully abandoned the deceased spouse, the relevant time period for determining abandonment for purposes of § 64.1-16.3 extends to the time of the deceased spouse's death and is not limited to the moment of separation, or the filing of a petition for divorce, as it is when abandonment is the ground upon which a divorce is sought. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885 (2008).

Clear language of subsection A of § 64.1-16.3 requires a court to determine whether a spouse's willful desertion or abandonment of a deceased spouse of whose estate the living spouse claims a share continued until the death of the spouse, and that determination is not limited to consideration of actions occurring prior to a separation, should one have occurred. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885 (2008).

Agreed separation or petition for divorce. - When determining whether a spouse seeking an elective share of the augmented estate of a deceased spouse willfully abandoned the deceased spouse, an agreed separation or petition for divorce is relevant evidence of the termination of cohabitation, but is not evidence that defeats a finding of willful abandonment. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885 (2008).

Mixed question of fact and law. - Whether a spouse seeking an elective share of a deceased spouse's augmented estate abandoned the deceased spouse is a mixed question of law and fact, so a reviewing court gives deference to a trial court's findings of fact and views the facts in the light most favorable to the prevailing party, but the reviewing court reviews the trial court's application of the law to those facts de novo. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885 (2008).

Abandonment not shown. - Widow was permitted to make the elections for homestead and personal property allowances because she had not abandoned her husband; a separation was for a relatively short time, there were telephone conversations about the wife returning, and there were attempts made to visit the husband in a nursing home. The widow rejected a suggestion that she consider a divorce and expressed love for her husband. Phillips v. Good, 94 Va. Cir. 504, 2016 Va. Cir. LEXIS 221 (Shenandoah County Nov. 22, 2016).

CIRCUIT COURT OPINIONS

Right to augmented estate. - Where a wife left the marital home after being told by her husband to get out, she did not willfully desert or abandon the husband and did not forfeit her right to the husband's augmented estate. Royer v. Royer, 65 Va. Cir. 476, 2004 Va. Cir. LEXIS 280 (Richmond 2004).

Presumption of marriage not rebutted. - Husband could be the administrator of a decedent's estate because a certified copy of the marriage between the husband and decedent was admitted into evidence, and it created a presumption of a lawful marriage; the presumption of marriage had not been rebutted, and thus, the husband was the surviving spouse of the decedent and her sole heir because the decedent left the marital home due to medical conditions, and allegations of drunkenness and abuse were undermined by multiple witnesses. Foltz v. Shadid,, 2018 Va. Cir. LEXIS 5 (Page County Jan. 13, 2018).

Article 1.1. Elective Share of Surviving Spouse of Decedent Dying on or after January 1, 2017.

§ 64.2-308.1. Applicability; definitions.

  1. The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying on or after January 1, 2017.
  2. As used in this article, unless the context requires a different meaning: "Decedent's non-probate transfers to others" means the amounts that are included in the augmented estate under § 64.2-308.6 . "Fractional interest in property held in joint tenancy with the right of survivorship," whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants. "Marriage," as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse. "Non-adverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or non-exercise of the power that he possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property. "Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation. "Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not he then had the capacity to exercise the power, held a power to create a present or future interest in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke or invade the principal of a trust or other property arrangement. "Property" includes values subject to a beneficiary designation. "Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement. "Transfer," as it relates to a transfer by or of the decedent, includes (i) an exercise or release of a presently exercisable general power of appointment held by the decedent, (ii) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (iii) an exercise, release, or lapse of a general power of appointment that the decedent created in himself and of a power described in subdivision 2 b of § 64.2-308.6 that the decedent conferred on a non-adverse party. (2016, cc. 187, 269.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.01 In Virginia - Overview, et seq. Cox.

Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate, et seq.; No. 14-101 Antenuptial Agreement, et seq.; No. 14-215. Release and Waiver of Marital Rights; No. 15-307 Waiver of Spouse's Rights Under Augmented Estate Against Trust Assets; No. 15-401 Checklist for Probate and Administration.

§ 64.2-308.2. Dower or curtesy abolished.

The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.

The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.

(2016, cc. 187, 269.)

§ 64.2-308.3. Elective share amount; effect of election on statutory benefits; non-domiciliary.

  1. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.
  2. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.
  3. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

    (2016, cc. 187, 269.)

Research References. - Virginia Forms (Matthew Bender). No. 15-447 Claim for Elective Share of Augmented Estate, et seq.

§ 64.2-308.4. Composition of the augmented estate; marital property portion.

  1. Subject to § 64.2-308.9 , the value of the augmented estate, to the extent provided in §§ 64.2-308.5 , 64.2-308.6 , 64.2-308.7 , and 64.2-308.8 , consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:
    1. The decedent's net probate estate;
    2. The decedent's non-probate transfers to others;
    3. The decedent's non-probate transfers to the surviving spouse; and
    4. The surviving spouse's property and non-probate transfers to others.
  2. The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection A multiplied by the following percentage:

    If the decedent and the spouse were married to each other: The percentage is:

    Less than 1 year 3%

    1 year but less than 2 years 6%

    2 years but less than 3 years 12%

    3 years but less than 4 years 18%

    4 years but less than 5 years 24%

    5 years but less than 6 years 30%

    6 years but less than 7 years 36%

    7 years but less than 8 years 42%

    8 years but less than 9 years 48%

    9 years but less than 10 years 54%

    10 years but less than 11 years 60%

    1 years but less than 12 years 68%

    12 years but less than 13 years 76%

    13 years but less than 14 years 84%

    14 years but less than 15 years 92%

    15 years or more 100%

    (2016, cc. 187, 269.)

§ 64.2-308.5. Decedent's net probate estate.

The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses (excluding federal or state transfer taxes), homestead allowance, family allowances, exempt property, and enforceable claims.

(2016, cc. 187, 269.)

§ 64.2-308.6. Decedent's non-probate transfers to others.

The value of the augmented estate includes the value of the decedent's non-probate transfers to others, not included under § 64.2-308.5 , of any of the following types, in the amount provided respectively for each type of transfer:

  1. Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent's death. Property included under this category consists of:
    1. Property over which the decedent, alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.
    2. The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse.
    3. The decedent's ownership interest in property or accounts held in Payable on Death or Transfer on Death designations or co-ownership registration with the right of survivorship. The amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
    4. Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
  2. Property transferred in any of the following forms by the decedent during marriage:
    1. Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse.
    2. Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a non-adverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent's estate, or creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.
  3. Property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:
    1. Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under subdivision 1 a, b, or c, or under subdivision 2, if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the property that would have been included under those subdivisions if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse. As used in this subdivision, "termination," with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in subdivision 1 a, "termination" occurs when the power terminated by exercise or release, but not otherwise.
    2. Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under subdivision 1 d had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
    3. Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse. The amount included is the value of the transferred property to the extent the transfers to any one donee in either of the two years next preceding the date of the decedent's death exceeded the amount excludable from taxable gifts under 26 U.S.C. § 2503(b), or its successor, on the date of the gift.

      (2016, cc. 187, 269.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate; No. 16-1408 Release of Marital Rights by Non-Owning Spouse.

§ 64.2-308.7. Decedent's non-probate transfers to the surviving spouse.

Excluding property passing to the surviving spouse under the federal social security system, the value of the augmented estate includes the value of the decedent's non-probate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:

  1. The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;
  2. The decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, or with Payable on Death or Transfer on Death designations to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and
  3. All other property that would have been included in the augmented estate under subdivision 1 or 2 of § 64.2-308.6 had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors. (2016, cc. 187, 269.)

§ 64.2-308.8. Surviving spouse's property and non-probate transfers to others.

  1. Except to the extent included in the augmented estate under § 64.2-308.5 or 64.2-308.7 , the value of the augmented estate includes the value of:
    1. Property that was owned by the decedent's surviving spouse at the decedent's death, including:
      1. The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;
      2. The surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
      3. Property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal social security system.
    2. Property that would have been included in the surviving spouse's non-probate transfers to others, other than the spouse's fractional and ownership interests included under subdivision 1 a or b, had the spouse been the decedent.
  2. Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subdivision A 1 a or b, the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subdivision A 2, proceeds of insurance that would have been included in the spouse's non-probate transfers to others under subdivision 1 d of § 64.2-308.6 are not valued as if the spouse were deceased.
  3. The value of property included under this section is reduced by enforceable claims against the surviving spouse.

    (2016, cc. 187, 269.)

§ 64.2-308.9. Exclusions, valuation, and overlapping application.

  1. The value of any property is excluded from the decedent's non-probate transfers to others:
    1. To the extent that the decedent received adequate and full consideration in money or money's worth for a transfer of the property; or
    2. If the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.
    1. The value of any property otherwise included under § 64.2-308.5 , 64.2-308.6 , or 64.2-308.7 , and its income or proceeds, is excluded from the decedent's net probate estate, decedent's non-probate transfers to others, and decedent's non-probate transfers to the surviving spouse to the extent that such property was transferred to or for the benefit of the decedent, before or during the marriage to the surviving spouse, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money's worth from a person other than the surviving spouse and (ii) maintained by the decedent as separate property. B. 1.  The value of any property otherwise included under § 64.2-308.5 , 64.2-308.6 , or 64.2-308.7 , and its income or proceeds, is excluded from the decedent's net probate estate, decedent's non-probate transfers to others, and decedent's non-probate transfers to the surviving spouse to the extent that such property was transferred to or for the benefit of the decedent, before or during the marriage to the surviving spouse, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money's worth from a person other than the surviving spouse and (ii) maintained by the decedent as separate property.
    2. The value of any property otherwise included under § 64.2-308.8 , and its income or proceeds, is excluded from the surviving spouse's property and non-probate transfers to others to the extent that such property was transferred to or for the benefit of the surviving spouse, before or during the marriage to the decedent, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money's worth from a person other than the decedent and (ii) maintained by the surviving spouse as separate property.
  2. The value of property:
    1. Included in the augmented estate under § 64.2-308.5 , 64.2-308.6 , 64.2-308.7 , or 64.2-308.8 is reduced in each category by enforceable claims against the included property; and
    2. Includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal social security system. Except as provided herein for interests passing to a surviving spouse, life estates and remainder interests are valued in the manner prescribed in Chapter 5 (§ 55.1-500 et seq.) of Title 55.1 and deferred payments and estates for years are discounted to present value using the interest rate specified in § 55.1-500 . In valuing partial and contingent interests passing to the surviving spouse, and beneficial interests in trust, the following special rules apply:
      1. The value of the beneficial interest of a spouse shall be the entire fair market value of any property held in trust if the decedent was the settlor of the trust, if the trust is held for the exclusive benefit of the surviving spouse during the surviving spouse's lifetime, and if the terms of the trust meet the following requirements:
        1. During the lifetime of the surviving spouse, the trust is controlled by the surviving spouse or one or more trustees who are non-adverse parties;
        2. The trustee shall distribute to or for the benefit of the surviving spouse the entire net income of the trust at least annually;
        3. The trustee is permitted to distribute to or for the benefit of the surviving spouse out of the principal of the trust such amounts and at such times as the trustee, in its discretion, determines for the health, maintenance, and support of the surviving spouse; and
        4. In exercising discretion, the trustee may be authorized or required to take into consideration all other income assets and other means of support available to the surviving spouse.
      2. To the extent that the partial or contingent interest is dependent upon the occurrence of any contingency that is not subject to the control of the surviving spouse and that is not subject to valuation by reference to the mortality and annuity tables set forth in §§ 55.1-501 through 55.1-506 , the contingency will be conclusively presumed to result in the lowest possible value passing to the surviving spouse.
      3. To the extent that the valuation of a partial or contingent interest is dependent upon the life expectancy of the surviving spouse, that life expectancy shall be conclusively presumed to be no less than 10 years, regardless of the actual attained age of the surviving spouse at the decedent's death.
  3. In case of overlapping application to the same property of the subsections or subdivisions of § 64.2-308.6 , 64.2-308.7 , or 64.2-308.8 , the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value. (2016, cc. 187, 269; 2018, c. 301.)

Editor's note. - As enacted by Acts 2016, cc. 187 and 269, this section contained two subdivision C 1 designations. The first subdivision was redesignated as subsection C at the direction of the Virginia Code Commission.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "Chapter 5 ( § 55.1-500 et seq.) of Title 55.1" for "Article 2 ( § 55-269.1 et seq.) of Chapter 15 of Title 55," "55.1-500" for "55-269.1" and "55.1-501 through 55.1-506 " for "55-271 through 55-277."

The 2018 amendments. - The 2018 amendment by c. 301 inserted "that" following "extent" throughout subsections A and B; in subdivision B 1, inserted "or 64.2-308.7 " and "and decedent's non-probate transfers to the surviving spouse"; and made stylistic changes.

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-308.10. Sources from which elective share payable.

  1. In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others:
    1. Amounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9 that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent's death pursuant to the decedent's exercise of a power of appointment over property not included in the augmented estate;
    2. Amounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7 ; and
    3. The marital property portion of amounts included in the augmented estate under § 64.2-308.8 .
  2. The marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.
  3. If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent's net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent's non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent's net probate estate and that portion of the decedent's non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent's net probate estate and of that portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.
  4. If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent's non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.
  5. The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.

    (2016, cc. 187, 269; 2018, c. 301.)

The 2018 amendments. - The 2018 amendment by c. 301 rewrote subdivision A 1, which read "The value of property excluded from the augmented estate under subsection A of § 64.2-308.9 , which passes or has passed to the surviving spouse."

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-308.11. Personal liability of recipients.

  1. Only original recipients of the decedent's non-probate transfers to others, and the donees of the recipients of the decedent's non-probate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's non-probate transfers to him or to pay the value of the amount for which he is liable in cash, or, upon agreement of the surviving spouse, other property.
  2. If any section or part of any section of this article is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's non-probate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in § 64.2-308.10 , to the person who would have been entitled to it were that section or part of that section not preempted. (2016, cc. 187, 269.)

§ 64.2-308.12. Proceeding for elective share; time limit.

  1. The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate, by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1. The clerk shall record such election in the will book of the court. A copy of such election shall be provided to the personal representative, if any, by regular U.S. mail or hand delivery within 30 days of filing.
  2. The surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent's non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent's death.
  3. Notwithstanding the provisions of § 8.01-380 , the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court and such election shall be extinguished.
  4. After notice and hearing, the court shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10 and 64.2-308.11 . If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10 and 64.2-308.11 had relief been secured against all persons subject to contribution.
  5. An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

    (2016, cc. 187, 269.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 6 ( § 55.1-600 et seq.) of Title 55.1" for "Chapter 6 ( § 55-106 et seq.) of Title 55."

Research References. - Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate; No. 15-447 Claim for Elective Share of Augmented Estate.

CIRCUIT COURT OPINIONS

Abandonment not shown. - Wife was not barred from any interest in the husband's estate, as her conduct did not evidence an intent to abandon the marital relationship; although the frequency of her visits to the husband may have varied after she moved out of their granddaughter's home, the wife continued to visit the husband until his death, they maintained a joint banking account until then, and the wife and her neighbor did not have an extramarital relationship but were merely good friends. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).

§ 64.2-308.13. Right of election personal to surviving spouse; incapacitated surviving spouse.

  1. The right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court under subsection A of § 64.2-308.12 . If the election is not made by the surviving spouse personally, it may be made on the surviving spouse's behalf by his or her conservator or agent under the authority of a durable power of attorney.
  2. If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others under subsections C and D of § 64.2-308.10 and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate:
    1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.
    2. During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
    3. Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse's heirs under Chapter 2 (§ 64.2-200 et seq.).
    4. The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2. (2016, cc. 187, 269.)

CIRCUIT COURT OPINIONS

Incapacity not shown. - Wife was not an incapacitated person and the appointment of a trustee under the statute was not necessary; while the wife had vision and hearing difficulties, her testimony was lucid, she understood the nature of the proceedings, and she recognized family members and was able to recall specific past events. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).

§ 64.2-308.14. Waiver of right to elect and of other rights; defenses.

  1. The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
  2. A surviving spouse's waiver is not enforceable if the surviving spouse proves that:
    1. The waiver was not executed voluntarily; or
    2. The waiver was unconscionable when it was executed and before execution of the waiver because:
      1. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;
      2. Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and
      3. The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
  3. An issue of unconscionability of a waiver is for decision by the court as a matter of law.
  4. Unless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
  5. If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

    (2016, cc. 187, 269.)

CIRCUIT COURT OPINIONS

Appointment of trustee. - Wife was not an incapacitated person and the appointment of a trustee under the statute was not necessary; while the wife had vision and hearing difficulties, her testimony was lucid, she understood the nature of the proceedings, and she recognized family members and was able to recall specific past events. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).

Abandonment not shown. - Wife was not barred from any interest in the husband's estate, as her conduct did not evidence an intent to abandon the marital relationship; although the frequency of her visits to the husband may have varied after she moved out of their granddaughter's home, the wife continued to visit the husband until his death, they maintained a joint banking account until then, and the wife and her neighbor did not have an extramarital relationship but were merely good friends. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).

Waiver. - Wife waived her right to claim an elective share because the prenuptial agreement specifically stated that each party waived any and all rights of every kind, nature, and description as spouse or surviving spouse; the wife's motion for an extension of time to file for the elective share was denied on the grounds that she waived her claim, pursuant to the terms and conditions of the prenuptial agreement. Algabi v. Dagvadorj,, 2020 Va. Cir. LEXIS 193 (Loudoun County Oct. 19, 2020).

§ 64.2-308.15. Protection of payors and other third parties.

  1. Although under § 64.2-308.6 a payment, item of property, or other benefit is included in the decedent's non-probate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or spouse's representative as required by § 64.2-308.12 , that a complaint for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice that a complaint for the elective share has been filed.
  2. A written notice that a complaint for the elective share has been filed must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice that a complaint for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate. The court shall hold the funds or item of property, and, upon its determination under subsection D of § 64.2-308.12 , shall order disbursement in accordance with the determination. If no complaint is filed in the court within the specified time under subsection A of § 64.2-308.12 or, if filed, the election for an elective share is withdrawn under subsection C of § 64.2-308.12 , the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.
  3. Upon complaint to the probate court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this article.

    (2016, cc. 187, 269.)

§ 64.2-308.16. Rights in family residence.

Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent's augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.

(2016, cc. 187, 269.)

§ 64.2-308.17. Statutory rights barred by desertion or abandonment.

If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child's estate by intestate succession.

(2016, cc. 187, 269.)

Article 2. Exempt Property and Allowances.

§ 64.2-309. Family allowance.

  1. In addition to any other right or allowance under this article, upon the death of a decedent who was domiciled in the Commonwealth, the surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance shall not continue for longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance may be paid as a lump sum not to exceed $24,000, or in periodic installments not to exceed $2,000 per month for one year. It is payable to the surviving spouse for the use of the surviving spouse and minor children or, if there is no surviving spouse, to the person having the care and custody of the minor children. If any minor child is not living with the surviving spouse, the family allowance may be made partially to the spouse and partially to the person having the care and custody of the child, as their needs may appear. If there are no minor children, the allowance is payable to the surviving spouse.
  2. The family allowance has priority over all claims against the estate.
  3. The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.
  4. The death of any person entitled to a family allowance terminates the person's right to any allowance not yet paid.

    (1981, c. 580, §§ 64.1-151.1, 64.1-151.4; 1987, c. 222; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection A, substituted "$24,000" for "$18,000" and "$2,000" for "$1,500."

Law review. - For article, "Support of the Surviving Spouse and Minor Children in Virginia: Proposed Legislation v. Present Law," see 14 U. Rich. L. Rev. 639 (1980). For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982). For article, "How Bankruptcy Exemptions Work: Virginia As an Illustration of Why the 'Opt Out' Clause Was a Bad Idea," see 8 G.M.U. L. Rev. 1 (1985).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.04 The Augmented Estate, et seq. Cox.

Virginia Forms (Matthew Bender). No. 5-823 General Creditor's Complaint Against Estate of Decedent; No. 14-101 Antenuptial Agreement; No. 15-401 Checklist for Probate and Administration, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Exemptions from Execution and Attachment, §§ 7, 12.

CIRCUIT COURT OPINIONS

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

Priority of payment. - Estate and a surety company were ordered to pay claims by the wife of a decedent under §§ 64.1-151.1 and 64.1-151.2, as the executor breached her duties by paying claims against the estate other than death taxes and administrative costs prior to paying the wife's claims, as the wife's claims had priority under § 64.1-157. Hill v. Clarke, 71 Va. Cir. 377, 2006 Va. Cir. LEXIS 260 (Hopewell 2006).

No waiver of allowance. - Widow had not waived her claims to the family allowance and exempt property by signing a premarital agreement. The agreement limited the widow's waiver to separate property and thus did not prevent her from claiming her statutory rights to marital property. Davenport v. Walters, 69 Va. Cir. 334, 2005 Va. Cir. LEXIS 332 (Norfolk 2005).

Executor's compliance with § 64.1-151.5 supported motion to affirm validity of election. - Elections affirmed because: (1) an executor, who was also the decedent's surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate's executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller,, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007).

Assets considered. - Non-probate assets flowing to a spouse and the spouse's independent sources of income were properly considered in denying the spouse's request for a family allowance above $18,000 under § 64.1-151.1. Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008).

§ 64.2-310. Exempt property.

  1. In addition to any other right or allowance under this article, the surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $20,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value. If the value of the exempt property selected in excess of any security interests therein is less than $20,000, or if there is not $20,000 worth of exempt property in the estate, the spouse or minor children are entitled to other assets of the estate, if any, to the extent necessary to make up the $20,000 value.
  2. The right to exempt property and other assets of the estate needed to make up a deficiency of exempt property has priority over all claims against the estate, except the family allowance.
  3. The right to exempt property is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.

    (1981, c. 580, § 64.1-151.2; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection A, substituted "$20,000" for "$15,000" throughout the subsection.

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 24 Rights of Creditors. § 24.17 Priority Family Claims in Virginia. Cox.

Virginia Forms (Matthew Bender). No. 5-823 General Creditor's Complaint Against Estate of Decedent; No. 14-101 Antenuptial Agreement; No. 15-401 Checklist for Probate and Administration, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Exemptions from Execution and Attachment, §§ 7, 12, 21.

CIRCUIT COURT OPINIONS

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

Statutory allowances. - Despite the lack of personal representative, § 6.1-125.8 [now see § 6.2-611 ] provided that the funds in a joint bank account could be used to satisfy a widow's allowance under § 64.1-151.2 when the assets of the estate were otherwise insufficient. Bray v. Ireland, 69 Va. Cir. 270, 2005 Va. Cir. LEXIS 333 (Norfolk 2005).

Priority of payment. - Estate and a surety company were ordered to pay claims by the wife of a decedent under §§ 64.1-151.1 and 64.1-151.2, as the executor breached her duties by paying claims against the estate other than death taxes and administrative costs prior to paying the wife's claims, as the wife's claims had priority under § 64.1-157. Hill v. Clarke, 71 Va. Cir. 377, 2006 Va. Cir. LEXIS 260 (Hopewell 2006).

No waiver of exempt property. - Widow had not waived her claims to the family allowance and exempt property by signing a premarital agreement. The agreement limited the widow's waiver to separate property and thus did not prevent her from claiming her statutory rights to marital property. Davenport v. Walters, 69 Va. Cir. 334, 2005 Va. Cir. LEXIS 332 (Norfolk 2005).

Elections affirmed. - Elections affirmed because: (1) an executor, who was also the decedent's surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate's executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller,, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007).

CASE NOTES

Widow was permitted to make the elections for homestead and personal property allowances because she had not abandoned her husband; a separation was for a relatively short time, there were telephone conversations about the wife returning, and there were attempts made to visit the husband in a nursing home. The widow rejected a suggestion that she consider a divorce and expressed love for her husband. Phillips v. Good, 94 Va. Cir. 504, 2016 Va. Cir. LEXIS 221 (Shenandoah County Nov. 22, 2016).

§ 64.2-311. Homestead allowance.

  1. In addition to any other right or allowance under this article, a surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $20,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children.
  2. The homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property.
  3. The homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent's will or by intestate succession is less than $20,000, then the surviving spouse or minor children are entitled to a homestead allowance in an amount that when added to the property passing to the surviving spouse and minor children by the decedent's will or by intestate succession, equals the sum of $20,000.
  4. If the surviving spouse claims and receives an elective share of the decedent's estate under §§ 64.2-302 through 64.2-307 , the surviving spouse shall not have the benefit of any homestead allowance. If the surviving spouse claims and receives an elective share of the decedent's estate under Article 1.1 (§ 64.2-308.1 et seq.), the homestead allowance shall be in addition to any benefit or share passing to the surviving spouse by way of elective share. (1981, c. 580, § 64.1-151.3; 1990, c. 831; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2016, cc. 187, 269; 2017, cc. 32, 82.)

Editor's note. - Acts 2017, cc. 32 and 82, cl. 2 provides: "That the provisions of this act apply to the elective share of a surviving spouse of a decedent dying on or after January 1, 2017."

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$20,000" for "$15,000" throughout the section.

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "or Article 1.1 ( § 64.2-308.1 et seq.), as applicable" in subsection D.

The 2017 amendments. - The 2017 amendments by c. 32, effective February 17, 2017, and c. 82, effective February 20, 2017, are identical, and in subsection D, deleted "or Article 1.1 ( § 64.2-308.1 et seq.), as applicable" following " §§ 64.2-302 through 64.2-307 " and added the last sentence. For applicability, see Editor's note.

Law review. - For article, "How Bankruptcy Exemptions Work: Virginia As an Illustration of Why the 'Opt Out' Clause Was a Bad Idea," see 8 G.M.U. L. Rev. 1 (1985).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.02 In Virginia - Comparison of Elective Share Statutes, et seq. Cox.

Virginia Forms (Matthew Bender). No. 5-823 General Creditor's Complaint Against Estate of Decedent; No. 14-101 Antenuptial Agreement; No. 15-401 Checklist for Probate and Administration, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Exemptions from Execution and Attachment, §§ 7, 8, 12.

CASE NOTES

Deceased spouse's failure to exercise exemption rights. - Debtor was not entitled to an additional $5,000 (now $15,000) homestead exemption under this section resulting from his deceased wife's failure to exercise her homestead exemption rights. Ames v. Custis, 87 Bankr. 415 (Bankr. E.D. Va. 1988) (decided under prior law).

Spouse or minor may not exercise decedent's exemption. - This section does not grant a surviving spouse or minor children the right to exercise for their own benefit a decedent's homestead exemption. Ames v. Custis, 87 Bankr. 415 (Bankr. E.D. Va. 1988) (decided under prior law).

CIRCUIT COURT OPINIONS

Elections affirmed. - Elections affirmed because: (1) an executor, who was also the decedent's surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate's executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller,, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007)(decided under prior law).

Widow was permitted to make the elections for homestead and personal property allowances because she had not abandoned her husband; a separation was for a relatively short time, there were telephone conversations about the wife returning, and there were attempts made to visit the husband in a nursing home. The widow rejected a suggestion that she consider a divorce and expressed love for her husband. Phillips v. Good, 94 Va. Cir. 504, 2016 Va. Cir. LEXIS 221 (Shenandoah County Nov. 22, 2016).

§ 64.2-312. Source, determination, and documentation of family allowance, exempt property, and homestead allowance; petition for relief.

  1. Property specifically bequeathed or devised shall not be used to satisfy the right to exempt property and the homestead allowance if there are sufficient assets in the estate otherwise to satisfy such rights. Subject to this restriction, the surviving spouse or the guardian of the minor children may select property of the estate as exempt property and the homestead allowance. The personal representative may make these selections if the surviving spouse or the guardian of the minor children is unable or fails to do so within a reasonable time, or if there is no guardian of the minor children. The personal representative may execute a deed of distribution to establish the ownership of property taken as the homestead allowance or exempt property, which deed, if executed, shall (i) describe the property with reasonable certainty and (ii) state the value of each asset included therein. The personal representative may determine the family allowance in a lump sum or periodic installments in accordance with § 64.2-309 . The personal representative may disburse funds of the estate in payment of the family allowance and in payment of any part of the exempt property or the homestead allowance that is payable in cash.
  2. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the circuit court for appropriate relief, including the award of a family allowance that is larger or smaller than what the personal representative determined or could have determined. Such petition may be ex parte; provided, however, that the court in its discretion may require such notice to and the convening of interested parties as it may deem proper in each case.

    (1981, c. 580, § 64.1-151.4; 1996, c. 549; 2001, c. 368; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 14-101 Antenuptial Agreement; No. 15-448 Claim for Family Allowance, Exempt Property, and Homestead Allowance.

§ 64.2-313. When and how exempt property and allowances may be claimed.

Any election to take a family allowance, exempt property, or a homestead allowance shall be made within one year from the decedent's death. The election shall be made either in person before the court having jurisdiction over probate or administration of the decedent's estate, or by a writing recorded in the court, or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1.

(1981, c. 580, § 64.1-151.5; 2012, c. 614.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 6 ( § 55.1-600 et seq.) of Title 55.1" for "Chapter 6 ( § 55-106 et seq.) of Title 55."

Law review. - For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Exemptions from Execution and Attachment, § 7.

CIRCUIT COURT OPINIONS

Executor's compliance with § 64.1-151.5 supported motion to affirm validity of election. - Elections affirmed because: (1) an executor, who was also the decedent's surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate's executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller,, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007)(decided under prior law).

Equities allowed election. - As the language of § 64.1-151.5 was ambiguous as to notarization requirements, the court could consider a widow's equitable arguments, which weighed in favor of recognizing her elections. Both the executor and the court were on notice of the widow's intent to claim her allowances two months after the testator's death, and no party would be prejudiced by allowing her to claim them. Davenport v. Walters, 69 Va. Cir. 334, 2005 Va. Cir. LEXIS 332 (Norfolk 2005)(decided under prior law).

§ 64.2-314. Waiver.

  1. The right of a decedent's surviving spouse to a homestead allowance in the estate of a decedent as provided in § 64.2-311 may be waived during the decedent's lifetime only by execution of a marital or premarital agreement in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20 or by execution of a waiver provided (i) the waiver is in writing, (ii) the language of the waiver mentions homestead allowance in conspicuous language, and (iii) the waiver has been signed by the surviving spouse.
  2. The right to the family allowance and exempt property, as provided in §§ 64.2-309 and 64.2-310 , may be waived during the decedent's lifetime only by execution of a marital or premarital agreement made in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20. (1990, c. 831, § 64.1-151.6; 2012, c. 614.)

CASE NOTES

Surviving spouse's rights. - Trial court did not err in finding that the separate property of the late wife, which she agreed was part of the prenuptial agreement and which was identified in appendices to the agreement, was not part of the husband's elective share, as, pursuant to § 20-150 , parties could contract to exclude such property from the disposition of property upon the happening of an event, such as the death of a spouse, which is what the late wife did. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397 (2005)(decided under prior law).

Article 3. Uniform Disposition of Community Property Rights at Death Act.

§ 64.2-315. Application.

This article applies to the disposition at death of the following property acquired by a married person:

  1. All personal property, wherever situated:
    1. Which was acquired as or became, and remained, community property under the laws of another jurisdiction;
    2. Which, all or the proportionate part of that property, was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or
    3. Which is traceable to that community property;
  2. All or the proportionate part of any real property situated in the Commonwealth which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as, or which became and remained, community property under the laws of another jurisdiction, or property traceable to that community property.

    (1982, c. 456, § 64.1-197; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alaska: Alaska Stat. §§ 13.41.005 to 13.41.055.

Arkansas: A.C.A. §§ 28-12-101 to 28-12-113.

Colorado: C.R.S. §§ 15-20-101 to 15-20-111.

Connecticut: Conn. Gen. Stat. §§ 45a-458 to 45a-466.

Florida: Fla. Stat. §§ 732.216 to 732.228.

Hawaii: H.R.S. §§ 510-21 to 510-30.

Kentucky: K.R.S. §§ 391.210 to 391.260.

Michigan: M.C.L.S. §§ 557.261 to 557.271.

Montana: Mont. Code Anno. §§ 72-9-101 to 72-9-120.

New York: NY CLS EPTL §§ 6-6.1 to 6-6.7.

North Carolina: N.C. Gen. Stat. §§ 31C-1 to 31C-12.

Oregon: O.R.S. §§ 122.705 to 112.775.

§ 64.2-316. Presumptions.

In determining whether this article applies to specific property, the following rebuttable presumptions apply:

  1. Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as, or to have become and remained, property to which this article applies; and
  2. Real property situated in the Commonwealth and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which this article applies.

    (1982, c. 456, § 64.1-198; 2012, c. 614.)

§ 64.2-317. Disposition upon death.

Upon death of a married person, one-half of the property to which this article applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of intestate succession of the Commonwealth. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of intestate succession of the Commonwealth. With respect to property to which this article applies, the decedent's one-half of the property is not subject to the surviving spouse's right to an elective share under § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.), as applicable.

(1982, c. 456, § 64.1-199; 1990, c. 831; 2012, c. 614; 2016, cc. 187, 269.)

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and added "or Article 1.1 ( § 64.2-308.1 et seq.), as applicable" at the end.

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.02 In Virginia - Comparison of Elective Share Statutes. Cox.

Virginia Forms (Matthew Bender). No. 15-447 Claim for Elective Share of Augmented Estate.

§ 64.2-318. Perfection of title of surviving spouse.

If the title to any property to which this article applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the commissioner of accounts. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which this article applies, unless a written demand is made by the surviving spouse or the spouse's successor in interest.

(1982, c. 456, § 64.1-200; 2012, c. 614.)

§ 64.2-319. Perfection of title of personal representative, heir or devisee.

If the title to any property to which this article applies is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this article applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.

(1982, c. 456, § 64.1-201; 2012, c. 614.)

§ 64.2-320. Purchaser for value or lender.

  1. If a surviving spouse has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.
  2. If a personal representative or an heir or devisee of the decedent has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse.
  3. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.
  4. The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.

    (1982, c. 456, § 64.1-202; 2012, c. 614.)

§ 64.2-321. Creditor's rights.

This article does not affect rights of creditors with respect to property to which this article applies.

(1982, c. 456, § 64.1-203; 2012, c. 614.)

§ 64.2-322. Acts of married persons.

The provisions of this article do not prevent married persons from severing or altering their interests in property to which this article applies.

(1982, c. 456, § 64.1-204; 2012, c. 614.)

§ 64.2-323. Limitations on testamentary disposition.

This article does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

(1982, c. 456, § 64.1-205; 2012, c. 614.)

§ 64.2-324. Uniformity of application and construction.

This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.

(1982, c. 456, § 64.1-206; 2012, c. 614.)

Chapter 4. Wills.

Requisites and Execution.

Revocation and Effect.

Construction and Effect.

Uniform International Wills Act.

Probate.

Recordation and Effect.

Article 1. Requisites and Execution.

§ 64.2-400. Separate writing identifying recipients of tangible personal property; liability for distribution; action to recover property.

  1. If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.
  2. The written statement or list may be (i) referred to as one that is in existence at the time of the testator's death, (ii) prepared before or after the execution of the will, (iii) altered by the testator at any time, and (iv) a writing that has no significance apart from its effect on the dispositions made by the will. When distribution is made pursuant to such a written statement or list, a copy thereof shall be furnished to the commissioner of accounts along with the legatee's receipt.
  3. A personal representative shall not be liable for any distribution of tangible personal property to the apparent legatee under the testator's will made without actual knowledge of the existence of a written statement or list, nor shall he have any duty to recover property so distributed. However, a person named to receive certain tangible personal property in a written statement or list that is effective under this section may recover that property, or its value if the property cannot be recovered, from an apparent legatee to whom it has been distributed in an action brought for that purpose within one year after the probate of the testator's will.
  4. This section shall not apply to a writing admitted to probate as a will and, except as provided herein, shall not otherwise affect the law of incorporation by reference.

    (1995, c. 363, § 64.1-45.1; 2012, c. 614.)

Law review. - For 1995 survey of wills, trusts, and estates, see 29 U. Rich. L. Rev. 1175 (1995).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

Research References. - Virginia Forms (Matthew Bender). No. 15-101 Checklist for Will Interview, et seq.; No. 15-201 Preamble to Will, et seq; No. 15-301 Revocable Inter Vivos Trust Agreement, et seq.; No. 15-401 Checklist for Probate and Administration.

§ 64.2-401. Who may make a will; what estate may be disposed of.

  1. Except as provided in subsection B, any individual may make a will to dispose of all or part of his estate at his death that, if not disposed of, would otherwise pass by intestate succession, including any estate, right, or interest that the testator may subsequently become entitled to after the execution of the will.
  2. An individual is not capable of making a will if he is (i) of unsound mind or (ii) an unemancipated minor.

    (Code 1950, §§ 64-48, 64-49; 1968, c. 656, §§ 64.1-46, 64.1-47; 1972, c. 825; 2000, c. 161; 2012, c. 614.)

Law review. - For comment on contemporary legal aspects of surrogate mother agreements, see 16 U. Rich. L. Rev. 467 (1982).

For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

Editor's note. - The cases annotated below were decided under former Title 64.1 and prior law.

CASE NOTES

The right to make a will of chattels is a common-law right. McDaniel v. Guthrie, 16 Va. L. Reg. 659 (1911).

A blind person may make will. - A blind person is, so far as such disability is concerned, perfectly competent to make a will. Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831). See also Neil v. Neil, 28 Va. (1 Leigh) 6 (1829).

After-acquired property is devisable. - Under the present statutes, any estate, right or interest is devisable to which the testator may be entitled subsequently to the execution of the will, a will being declared by statute, with reference to the real as well as the personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Randolph v. Wright, 81 Va. 608 (1886).

A wife to whom a husband gives property by will may by that will be authorized to make a valid will disposing of it in his lifetime. And such will is presumed to have been made under that power. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21 (1872).

Right of entry or action. - A right of entry or of action held devisable under our statutes. Taylor's Devisees v. Rightmire, 35 Va. (8 Leigh) 468 (1836).

Under this section a possibility of reverter may now be disposed of by will before termination of the base or determinable fee. County School Bd. v. Dowell, 190 Va. 676 , 58 S.E.2d 38 (1950).

Householder cannot dispose of articles enumerated in § 34-26 . - Where a householder dies leaving a widow or infant children, such of these as there may be take an absolute title to the articles enumerated in § 34-26 , regardless of any provisions of the will of the householder. McDaniel v. Guthrie, 16 Va. L. Reg. 659 (1911).

Requisites of mental capacity. - A testator, in making his will, must be capable of understanding the nature of the business he is engaged in, and the elements his will is composed of, and the disposition of his property thereby provided for, both as to the property and the persons he means to give it to, and how it is to be disposed of among them. Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 (1888); Huff v. Welch, 115 Va. 74 , 78 S.E. 573 (1913); Mercer v. Kelso's Adm'r, 45 Va. (4 Gratt.) 106 (1847). See also Greer v. Greer, 50 Va. (9 Gratt.) 330 (1852); Whitesel v. Whitesel, 64 Va. (23 Gratt.) 904 (1873); Young v. Barner, 68 Va. (27 Gratt.) 96 (1876); Chappell v. Trent, 90 Va. 849 , 19 S.E. 314 (1893); Lester v. Simpkins, 117 Va. 55 , 83 S.E. 1062 (1915).

The test applied in Virginia for mental capacity to execute a will emphasizes ability to know and do certain things. Thomason v. Carlton, 221 Va. 845 , 276 S.E.2d 171 (1981).

For testamentary capacity to exist, it is sufficient that at the time the testator executed his will, he was capable of recollecting his property, the natural objects of his bounty, and their claims upon him, and knew the business about which he was engaged and how he wished to dispose of his property. Fields v. Fields, 255 Va. 546 , 499 S.E.2d 826 (1998).

Law only requires testamentary capacity at time will is made. - This is the controlling factor. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

The testimony of lay witnesses which indicate incapacity generally and not as evidence of incapacity on the date the will was executed, will not overthrow the testimony of the witnesses to the execution of the will where the latter evidence is clear as to the testator's capacity at the time the will was executed. Fields v. Fields, 255 Va. 546 , 499 S.E.2d 826 (1998).

A testator is not rendered incompetent to make a will merely because he may be incompetent to safely transact the general business affairs of life. Wooddy v. Taylor, 114 Va. 737 , 77 S.E. 498 (1913).

Subsequent determination of incompetency not determinative. - Testamentary capacity must exist when the testatrix executes the will. A pending competency hearing or subsequent determination of incompetency does not determine whether testamentary capacity existed at the time the will was executed. Likewise, the appointment of a guardian cannot be regarded as prima facie evidence of mental incapacity. Gibbs v. Gibbs, 239 Va. 197 , 387 S.E.2d 499 (1990).

Insanity. - Mental capacity to execute a will may factually exist and be shown, even though the testator has been adjudged insane. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

Old age and eccentricity are not invalidating. Wood v. Wood, 109 Va. 470 , 63 S.E. 994 (1909); Howard v. Howard, 112 Va. 566 , 72 S.E. 133 (1911); Huff v. Welch, 115 Va. 74 , 78 S.E. 573 (1913).

Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid; thus, if at the time of its execution the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient. Thomason v. Carlton, 221 Va. 845 , 276 S.E.2d 171 (1981).

Where an 88-year-old woman with physical ailments, but who was deemed to be mentally alert and competent, devised all of her property to her son to the exclusion of her daughter, her will was valid since the evidence overwhelmingly showed that she possessed testamentary capacity at the time she executed it. Thomason v. Carlton, 221 Va. 845 , 276 S.E.2d 171 (1981).

Burden of proof requirements. - In a case in which contestant challenged the authenticity of a will alleging testamentary capacity, the proponent of the will was entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for the valid execution of the will. Once the presumption exists, the contestant then bears the burden of going forward with evidence to overcome this presumption, although the burden of persuasion remains with the proponent. Gibbs v. Gibbs, 239 Va. 197 , 387 S.E.2d 499 (1990).

Burden of proving capacity is on the propounder of the will. Nothing short of clear and convincing evidence will suffice. Riddell v. Johnson's Ex'r, 67 Va. (26 Gratt.) 152 (1875); Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 (1888).

Burden of proof improperly placed. - Instruction, which directed jury to find that the will in question was not the last will of the testatrix if the contestants proved by clear and convincing evidence that the testatrix did not possess the requisite testamentary capacity at the time the will was made, improperly placed the burden of proof on contestants to prove the testatrix's incapacity by clear and convincing evidence. Gibbs v. Gibbs, 239 Va. 197 , 387 S.E.2d 499 (1990).

Where will wholly in handwriting of testator. - The circumstance that a writing exhibited for probate as a last will and testament was wholly written by the testator himself was prima facie evidence that he was in his senses and able to make a will, so that the burden of proof to repel that presumption lay on those who wished to impugn it. Temple v. Temple, 11 Va. (1 Hen. & M.) 476 (1807). See Mercer v. Kelso's Adm'r, 45 Va. (4 Gratt.) 106 (1847); Beverley v. Walden, 61 Va. (20 Gratt.) 147 (1870).

CIRCUIT COURT OPINIONS

Early Alzheimer's or mild dementia insufficient to prove lack of capacity. - Although the decedent was suffering from early Alzheimer's or mild dementia at the time of the will execution, the decedent had the requisite testamentary capacity under § 64.1-47; the attorney's testimony that the decedent wanted to increase the bequest to the son established that the decedent read the decedent's will, understood the scope of the decedent's property, the objects of the decedent's bounty, and how the decedent wished to dispose of the property. Rudwick v. Lloyd, 69 Va. Cir. 139, 2005 Va. Cir. LEXIS 319 (Arlington County 2005) (decided under prior law).

§ 64.2-402. Advertisements to draw wills prohibited; penalty.

Any person that advertises any direct or indirect offer to draw any will or have any will drawn is guilty of a Class 3 misdemeanor, provided that the provisions of this section shall not apply to a duly licensed attorney-at-law, partnership composed of duly licensed attorneys-at-law, or a professional corporation or professional limited liability company incorporated or organized for the practice of law so long as such attorney, partnership, or professional corporation conducts such advertisement in accordance with the Rules of Court promulgated by the Supreme Court of Virginia.

(Code 1950, § 64-50; 1968, c. 656, § 64.1-48; 1979, c. 438; 1996, c. 265; 2012, c. 614.)

§ 64.2-403. Execution of wills; requirements.

  1. No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator's presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.
  2. A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.
  3. A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.

    (Code 1950, § 64-51; 1968, c. 656, § 64.1-49; 2012, c. 614.)

    I. General Consideration. II. Testamentary Intent and Knowledge of Contents of Will. III. Form and Contents. IV. Execution. A. Signing and Sealing. B. Witnesses to Signing or Acknowledgment. 1. Necessity. 2. Competency. 3. Request to Subscribe. 4. Acknowledgment as Dispensing With Signing in Presence of Witnesses. 5. Necessity for Witnesses to Be Present at Same Time. 6. Necessity for Witnesses to Sign in Presence of Testator. 7. Order of Signing. 8. Manner of Signing and Form of Attestation. C. Publication. V. Proof of Execution. VI. Holographic Wills. A. Requisites and Validity. B. Proof of Handwriting.

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970); for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974); for the year 1979-1980, see 67 Va. L. Rev. 369 (1981).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

I. GENERAL CONSIDERATION.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

As to the history of certain statutory provisions relating to the execution of wills, see Selden v. Coalter, 4 Va. (2 Va. Cas.) 553 (1818); Waller v. Waller, 42 Va. (1 Gratt.) 454 (1845); Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 (1888).

Purpose. - The purpose of the statutory requirements with respect to the execution of wills was to throw every safeguard deemed necessary around a testator while in the performance of this important act, and to prevent the probate of a fraudulent and suppositious will instead of the real one. To accomplish this, the statute must be strictly followed. It is, however, quite as important that these statutory requirements should not be supplemented by the courts with others that might tend to increase the difficulty of the transaction to such an extent as practically to destroy the right of the uninformed layman to dispose of his property by will. Savage v. Bowen, 103 Va. 540 , 49 S.E. 668 (1905); French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

The ceremonies required were not intended to restrain or abridge the power of testators, but to guard and protect them in the exercise of that power. Moon v. Norvell, 184 Va. 842 , 36 S.E.2d 632 (1946); Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950); French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

The purpose of this section is to prevent mistakes, imposition, fraud or deception. Moon v. Norvell, 184 Va. 842 , 36 S.E.2d 632 (1946); Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950); French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

The purpose of the statute in requiring subscription of a will by competent witnesses in the presence of the testator is to prevent fraud, deception, mistake, and the substitution of a surreptitious document; however, these requirements are not intended to restrain or abridge the power of a testator to dispose of his property. They are intended to guard and protect him in the exercise of that power. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735 (1990).

The purpose of this statute is to prevent fraud, mistake, or the substitution of documents; it is not intended to place restraints on the power to execute a will but to guard and protect that power. Draper v. Pauley, 480 S.E.2d 495 (1997).

Section must be complied with. - The protective requirements of this section, designed to insure testamentary disposition of property against fraud and impositions, must be of general application, and must be proven to have been complied with. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934).

The provisions of this section must be complied with in order that a will may be valid. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881 (1940).

While this section must be strictly followed, it is vital that the provisions not be construed in a manner which would "increase the difficulty of the transaction to such an extent as to practically destroy" the right of the uninformed lay person to dispose of property by will; the statute should be given "a sound and fair construction" with rigid insistence "upon substantial compliance with its requirements." Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735 (1990).

The safeguards of this section are not designed to make the execution of wills a mere trap and pitfall, and their probate a mere game. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735 (1990).

This section and § 64.1-45 require the same formalities in the execution of a codicil as in the execution of the will itself. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

Invalidity of a codicil does not affect the validity of a will which has been executed in the manner prescribed by this section. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

Joint wills are valid. Williams v. Williams, 123 Va. 643 , 96 S.E. 749 (1918).

Section not applicable to bank deposit payable to survivor. - This section does not apply to a bank deposit made in the name of a depositor payable on death to a named survivor. Use of accounts payable on death to a survivor is a valid method of transferring property upon death, irrespective of the provisions of this section. Virginia Nat'l Bank v. Harris, 220 Va. 336 , 257 S.E.2d 867 (1979).

II. TESTAMENTARY INTENT AND KNOWLEDGE OF CONTENTS OF WILL.

Testamentary intent is essential to the validity of a will, and the mere fact of the formal signature and acknowledgment of an instrument, though strictly in accord with the requirements of the statute of wills, is not conclusive upon this question of testamentary intent. One may execute a paper with every formality known to the law, but unless he intends that very paper to take effect as a will, it is no will. Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 (1921), overruled on another point Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144 (1958). See also Waller v. Waller, 42 Va. (1 Gratt.) 454 (1845); Hocker v. Hocker, 45 Va. (4 Gratt.) 277 (1848); Early v. Arnold, 119 Va. 500 , 89 S.E. 900 (1916).

Although the testator had signed will before the document contained the disposition of her property, there was no dispute that the signature was hers, and that following the transcription of the statement and its recitation back to her, testator stated that the document was exactly what she wanted. Under these circumstances, the signature was "intended as a signature" and the "will acknowledged" by the testator in the presence of two competent witnesses in satisfaction of the requirements for a valid will contained in this section. Draper v. Pauley, 480 S.E.2d 495 (1997).

See, however, Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922), where it is said that it is not necessary that a testator should intend to perform, or be aware that he has performed, a testamentary act.

Requirement of testamentary intent applies to wills and codicils. - The requirement of testamentary intent which applies to a will extends with like force and effect to a codicil. Delly v. Seaboard Citizens Nat'l Bank, 202 Va. 764 , 120 S.E.2d 457 (1961).

Intention to make and sign will must be concurrent. - There must be a concurrence of the animus testandi and the animus signandi - that is, the intention to make a will and the intention to sign the instrument as and for a will. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945).

Testamentary intent must appear from face of paper. - It is elementary that to constitute a valid will a paper offered for probate must have been designed or intended to operate as a disposition of the testator's property to take effect after his death. In this jurisdiction such testamentary intent must appear from the face of the paper itself. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968).

Testamentary capacity. - Trial court erred in ruling that a testator lacked testamentary capacity when executing a contested will as the evidence did not support such a finding. The trial court erred in placing more weight on the testimony of the testator's doctor and her children who were not present when she executed the will than it did on the testimony of the witnesses, the notary, and the will proponent who were present when the will was executed; there was no testimony that the testator was not lucid at the time that she executed the contested will. Weedon v. Weedon, 283 Va. 241 , 720 S.E.2d 552 (2012).

A paper not intended to be a will, but which contains a disposition of property to take effect after death, may operate as a testamentary act. McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875); Henderson v. Henderson, 183 Va. 663 , 33 S.E.2d 181 (1945), in which a letter was held to be testamentary in character and was admitted to probate as a codicil.

A letter can constitute a will. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136 (1974).

But it must satisfactorily appear that the letter writer intended the very paper to be his will. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136 (1974).

Testamentary intent must be found on face of letter. - For a letter to be a valid will in Virginia, testamentary intent must be found on its face, not for extrinsic evidence. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136 (1974).

Letter held not testamentary in character. - Letter, which on its face merely informed defendant that in another document the decedent had devised property to him, was merely a communicative letter. It does not appear that the decedent intended the letter itself to make a disposition of his property after his death. Thus, it was not testamentary in character and could not be probated as a will. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136 (1974).

Creation of joint bank account with survivorship not testamentary instrument. - The creation of a joint bank account by one person for himself and another, as joint owners, with the right of survivorship, is not a testamentary instrument. Quesenberry v. Funk, 203 Va. 619 , 125 S.E.2d 869 (1962).

Jury must be satisfied that the testator knew of the contents of the will at the time of its execution. Montague v. Allan, 78 Va. 592 (1884). See also Tucker v. Calvert, 10 Va. (6 Call) 90 (1806); Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831).

Testamentary intent lacking. - An instrument, referred to as a codicil, which made no disposition of property and did not modify any former will in any respect did not evidence sufficient testamentary intent to be admitted to probate. Delly v. Seaboard Citizens Nat'l Bank, 202 Va. 764 , 120 S.E.2d 457 (1961).

Evidence of intention. - See Smith v. Smith, 112 Va. 205 , 70 S.E. 491 (1911).

III. FORM AND CONTENTS.

Whole will must be in writing. - Each and every part of the last will and testament of a decedent must be in writing, and be executed in the mode prescribed by this section, and if any part is in parol, such part is void and inoperative, in the absence of fraud. Sims v. Sims, 94 Va. 580 , 27 S.E. 436 (1897). See also Sprinkle v. Hayworth, 67 Va. (26 Gratt.) 384 (1875), where a parol will is said to be forbidden, whether in form of a trust or otherwise, quoted with approval in Sims v. Sims, 94 Va. 580 , 27 S.E. 436 (1897).

Except as provided in § 64.1-53. - Each and every part of a will, except in the cases provided for in § 64.1-53, must be in writing, and if any part is in parol that part is void and inoperative under this section. Rinker v. Simpson, 159 Va. 612 , 166 S.E. 546 (1932).

Or where enforcement of parol provision is necessary to prevent fraud. - An exception is recognized where the bequest or devise has been procured by a promise to hold for benefit of another, which promisor refuses to perform. The exception is allowed to prevent a fraud. Sims v. Sims, 94 Va. 580 , 27 S.E. 436 (1897).

Will may consist of several testamentary papers, of different dates, and executed and attested in different ways and at different times. Schultz v. Schultz, 51 Va. (10 Gratt.) 358 (1853); Gordon v. Whitlock, 92 Va. 723 , 24 S.E. 342 (1896); Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609 (1953).

Incorporation of paper by reference. - There are three requisites in order that an extrinsic paper may be incorporated into a will by reference. Incorporation must be made of a paper in actual existence at the date of the execution of the will; it must appear from the face of the will that the paper is in actual existence at that time; and the paper must be identified and described with reasonable certainty in the will. Selden v. Coalter, 4 Va. (2 Va. Cas.) 553 (1818); Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934); Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820 (1961).

Interlineations and erasures must be made before will executed. - When a will is presented for probate and discloses interlineations and erasures, it is obvious that if they were made before the will was executed, they form a part of it, and the document, as so changed and altered, is the one which should be received; while if they were made after execution they form no part of the will and are of no effect whatever, unless they sufficiently support an inference of cancellation. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934).

Erasure of name of legatee, leaving it still legible, after execution, is no cancellation, and no presumption arises that the decedent did it himself. Harris v. Wyatt, 113 Va. 254 , 74 S.E. 189 (1912).

To be a will, an instrument must dispose of property, not merely negative its going to certain persons. Boisseau v. Aldridges, 32 Va. (5 Leigh) 222 (1834); Coffman v. Coffman, 85 Va. 459 , 8 S.E. 672 (1888).

No particular language is necessary to constitute a valid will. Early v. Arnold, 119 Va. 500 , 89 S.E. 900 (1916).

A testamentary form is not essential. McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875); Cody v. Conly, 68 Va. (27 Gratt.) 313 (1876).

There is nothing that requires less formality than the body of a will or testament. If it is duly signed, attested and published, it may assume almost any form, provided it was intended by the party to take effect after his death. The form of a paper does not affect its title to probate, provided it be the intention of the deceased that it should operate after his death. The true question is whether the deceased has done a testamentary act; and that involves not merely the terms, but also the perfect and appropriate execution, of the instrument; and the latter is the proper subject of parol evidence. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

But testator must have intended very paper to be his will. - A paper is not to be established as a man's will, merely by proving, that he intended to make a disposition of his property similar to, or even identically the same with, that contained in the paper. It must satisfactorily appear that he intended the very paper to be his will. Sharp v. Sharp, 29 Va. (2 Leigh) 249 (1830); Waller v. Waller, 42 Va. (1 Gratt.) 454 (1845). See Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Hocker v. Hocker, 45 Va. (4 Gratt.) 277 (1848); McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875).

There is one exception to this rule. When the draft or notes of a will embody the provisions actually designed by the testator with reference to his property, and declare the settled purpose of the testator, they will be established as his will. McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875).

For memorandum established as will, see Sharp v. Sharp, 29 Va. (2 Leigh) 249 (1830). For memoranda held not to be testamentary, see Hocker v. Hocker, 45 Va. (4 Gratt.) 277 (1848); McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875); Peake v. Jenkins, 80 Va. 293 (1885).

An assignment to operate at the death of the assignor has been held to be testamentary. Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846).

Indorsement on insurance policy. - As to indorsement on insurance policy as will, see Grand Fountain U.O.T.R. v. Wilson, 96 Va. 594 , 32 S.E. 48 (1899).

Deed intended to take effect after death. - While a deed may operate as a will, if executed in accordance with the statute of wills, it must be intended to take effect only after maker's death for it to do so. Hall v. Hall, 109 Va. 117 , 63 S.E. 420 (1909); Mumpower v. Coatle, 128 Va. 1 , 104 S.E. 706 (1919).

Will in form of letter. - See Jones' Adm'r v. Irvin, 4 Va. L. Reg. 525 (1898).

IV. EXECUTION.
A. SIGNING AND SEALING.

This section does not designate the place of signature. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

Signature need not appear at end of will. - The signature need not appear at the foot or end of the instrument, provided the paper shows on its face that the name placed in the writing was intended as a signature. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945); McElroy v. Rolston, 184 Va. 77 , 34 S.E.2d 241 (1945).

This section does not specify where the signature shall be placed in the writing and while placing one's name at the end of the instrument may be the best and clearest way of signing a will, the signature does not necessarily have to appear at the foot or end of the writing, however to meet the statute's requirement, it must appear unequivocally from the face of the writing that the person who writes his name therein intends it as his signature. Slate v. Titmus, 238 Va. 557 , 385 S.E.2d 590 (1989).

It may appear after attestation clause. - The attestation clause is no part of the will, and so the fact that the testator's signature appears after it is unimportant. All that is necessary is that it must appear on the face of the document that the party signing did in fact intend to sign in the capacity of testator. Presbyterian Orphans' Home v. Bowman, 165 Va. 484 , 182 S.E. 551 (1935).

But it must be manifest that name is intended as signature. - No mere intention or effort to dispose of property by will, however clearly and definitely expressed in writing, is sufficient. Such purpose must be executed in the only manner authorized by this section; that is, the writing itself must be authenticated by the signature of the decedent. It is not sufficient to raise a doubt as to whether his name is intended to authenticate the paper which is propounded as a will, for, to use the explicit language of this section, it must be signed "in such manner as to make it manifest that the name is intended as his signature," and unless so signed it is not valid. Meany v. Priddy, 127 Va. 84 , 102 S.E. 470 (1920); Waller v. Waller, 42 Va. (1 Gratt.) 454 (1845). See Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 (1890); Albert v. Stafford, 123 Va. 338 , 96 S.E. 761 (1918); Forrest v. Turner, 146 Va. 734 , 133 S.E. 69 (1926).

A paper in all other respects good as a holographic will, and concluding, "I, William Dinning, say this is my last will and testament," was sufficiently signed. This section was designed to let in wills not signed at the foot or end, if signed in such manner as to afford internal evidence of authenticity equally convincing. Dinning v. Dinning, 102 Va. 467 , 46 S.E. 473 (1904).

The will of a testatrix was written on six sheets of paper and each one of the sheets of paper upon which the will appeared, except the last, had already been signed by the testatrix, when the attesting witnesses were called upon to witness the execution of the will, and the testatrix in the presence of the witnesses affixed her signature to the margin of the last sheet nearly opposite the end of the will and above the concluding clause. It was held that the will was signed by the testatrix in such a manner as to make it manifest that the name was intended as a signature and the will was duly executed. Murguiondo v. Nowland, 115 Va. 160 , 78 S.E. 600 (1913).

And insertion of name at commencement of will is equivocal. - It is well settled that it is an equivocal act to insert the name at the commencement of a will, and unless it appears affirmatively from something on the face of the paper that it was intended as a signature it is not a sufficient signing under the statute. Parol evidence is not admissible upon the question of finality of intention, when this internal evidence, to be afforded by the face of the paper, is wanting. Ramsey v. Ramsey's Ex'r, 54 Va. (13 Gratt.) 664 (1857); Roy v. Roy's Ex'r, 57 Va. (16 Gratt.) 418 (1863); Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 (1890); Waller v. Waller, 42 Va. (1 Gratt.) 454 (1845). See also Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945); McElroy v. Rolston, 184 Va. 77 , 34 S.E.2d 241 (1945).

Name on an envelope is not a signature at all, but a mere label or endorsement of the envelope, containing what the testator supposed was already a validly executed will. Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 (1890).

Will need not be signed by testator himself. - Our statute does not require that the will be signed by the testator himself. It may be signed "by some other person in his presence and by his direction." Peake v. Jenkins, 80 Va. 293 (1885); Chappell v. Trent, 90 Va. 849 , 19 S.E. 314 (1893).

Acknowledgment in presence of witnesses is sufficient. - Acknowledgment of the signature in the presence of witnesses is sufficient. Burwell v. Corbin, 22 Va. (1 Rand.) 131, 10 Am. Dec. 494 (1822), wherein the paper was held not proved according to the statute. See Beane v. Yerby, 53 Va. (12 Gratt.) 239 (1855).

If the paper has been signed by the testator, acknowledgment is a recognition and ratification of his signature. If his name has been subscribed to the paper by another person, acknowledgment is a recognition and ratification of the signature as having been made for him, in his presence, and by his direction. Rosser v. Franklin, 47 Va. (6 Gratt.) 1 (1849); Albert v. Stafford, 123 Va. 338 , 96 S.E. 761 (1918), holding proof of signature or acknowledgement essential to probate.

Meaning of "signature" is not restricted to a written name. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

Signature may be by mark. - Where a testator puts his mark to the subscription of his name to his will in the presence of two or more subscribing witnesses, this is a sufficient signing thereof, within the meaning of this section. Clarke v. Dunnavant, 37 Va. (10 Leigh) 13 (1839); Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 52 Am. Dec. 97 (1849); Jensen v. Peck, 16 Va. L. Reg. 915 (1911); Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

Mark is unnecessary where signature is by another. - Where the will is signed by another, the testator need not add his mark. But the adding of the mark after attestation by witnesses, is a superfluous and immaterial matter. Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 52 Am. Dec. 97 (1849).

Law does not require a will to be sealed. Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846).

B. WITNESSES TO SIGNING OR ACKNOWLEDGMENT.
1. NECESSITY.

Proponent must show signing or acknowledgment before witnesses. - Where the proponents of a purported will, written by one other than the testatrix, failed to show that the testatrix either signed the will or acknowledged its execution in the presence of the subscribing witnesses, it was error to admit the paper to probate, under this section. Albert v. Stafford, 123 Va. 338 , 96 S.E. 761 (1918).

Purpose of requirement. - The purpose of this section in requiring subscription by competent witnesses in the presence of a testator is to prevent fraud and imposition upon the testator and the substitution of a surreptitious will. Their subscription is to establish and prove the genuineness of testator's signature. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

Same proof required for wills of personalty and realty. - In 1835 the legislature, in consequence of the decision in Worsham's Adm'r v. Worsham's Ex'r, 32 Va. (5 Leigh) 589 (1835), and at the suggestion of the court which pronounced that decision, enacted a statute, Acts of 1834-35, ch. 60, Sess. Acts, p. 43, requiring the same proof in cases of wills of personalty as of realty. Gibson v. Beckham, 57 Va. (16 Gratt.) 321 (1862).

Document was not valid will. - Document a decedent returned to her attorney containing handwritten entries and typewritten text was not a valid will because it was neither wholly in the decedent's handwriting nor duly attested by two competent witnesses. Berry v. Trible, 271 Va. 289 , 626 S.E.2d 440 (2006).

2. COMPETENCY.

Attesting witnesses must be competent at the time of attestation. Bruce v. Shuler, 108 Va. 670 , 62 S.E. 973 (1908).

Competent witness is one qualified to testify in court. - A competent witness is a person who, at the time of making the attestation, was qualified to testify in court to facts which he attests by subscribing his name to the will. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

Executor, legatee or notary may be witness. - A witness is not incompetent because of his position as executor or legatee under the will, nor because he is a notary public. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

Notary who witnesses testator's mark is attesting witness. - A notary public who makes his certificate and signs his name as notarial witness to a testator's mark, in order to allay any suspicion that might arise from the fact that the testator signed by mark instead of subscribing his name, is nevertheless an attesting witness to the will. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

And his official certificate is superfluous. - Where an officer authorized to take acknowledgments or to make certifications attaches his official certificate to a will, the officer is regarded as a witness, the certificate being regarded as superfluous. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

3. REQUEST TO SUBSCRIBE.

Request of third person. - A request to a witness to subscribe a will, made by a third person in the hearing of the testator, is, in law, the request of the testator, if he is conscious and does not dissent therefrom. Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878).

Signature as amanuensis, without request to attest, is insufficient. Peake v. Jenkins, 80 Va. 293 (1885), distinguishing Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846), where a witness adopted her signature already affixed for another purpose.

4. ACKNOWLEDGMENT AS DISPENSING WITH SIGNING IN PRESENCE OF WITNESSES.

Section provides two modes of execution. - Under the provision of this section that the signature of the testator "shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time," each mode is a mode of execution, and a proper execution of a will may be made in either manner, if there is a compliance with the other requisites. Barnes v. Bess, 171 Va. 1 , 197 S.E. 403 (1938).

Witnesses need not see testator sign. - It is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature; or even that the instrument is his will. It is enough that he should acknowledge in their presence, that the act is his, with a knowledge of the contents of the instrument; and with the design that it should be a testamentary disposition of his property. Rosser v. Franklin, 47 Va. (6 Gratt.) 1 (1849). See also Beane v. Yerby, 53 Va. (12 Gratt.) 239 (1855).

Virginia has no statute defining acknowledgment. - Virginia has no statute providing a definition of what constitutes a sufficient acknowledgment of a will, nor has there been an occasion to make such a definition. The courts are at variance, especially as to what is sufficient to constitute an implied acknowledgment, and the decisions are dependent upon the factual situations or the language of the statutes involved. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948).

5. NECESSITY FOR WITNESSES TO BE PRESENT AT SAME TIME.

Witnesses must be present together at time of acknowledgment. - Under this section, the witnesses must be present together at same time, when the testator acknowledges the signature or the instrument to be his act. Parramore v. Taylor, 52 Va. (11 Gratt.) 220 (1854); Beane v. Yerby, 53 Va. (12 Gratt.) 239 (1855); Green v. Crain, 53 Va. (12 Gratt.) 252 (1855).

A witness to a will must be able to testify not only that the testator signed his name, or acknowledged his signature in his presence, but that such signature was affixed, or acknowledgment of the instrument was made, in the presence of another person. In other words, the testator must sign his name, or acknowledge the instrument in the presence of at least two competent persons present at the same time. French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

For origin and history of this provision, see Parramore v. Taylor, 52 Va. (11 Gratt.) 220 (1854).

But they need not sign in presence of each other. - It is not necessary that the witnesses should be present together when they subscribe their names to the will. Parramore v. Taylor, 52 Va. (11 Gratt.) 220 (1854); Beane v. Yerby, 53 Va. (12 Gratt.) 239 (1855); Green v. Crain, 53 Va. (12 Gratt.) 252 (1855).

6. NECESSITY FOR WITNESSES TO SIGN IN PRESENCE OF TESTATOR.

Witnesses must sign in presence of testator. - The Virginia statute requires that the attesting witnesses "shall subscribe the will in the presence of the testator." Neil v. Neil, 28 Va. (1 Leigh) 6 (1829); Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831); Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Moore v. Moore's Ex'r, 49 Va. (8 Gratt.) 307 (1851); Sturdivant v. Birchett, 51 Va. (10 Gratt.) 67 (1853); Nock v. Nock's Ex'rs, 51 Va. (10 Gratt.) 106 (1853); Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878); Baldwin v. Baldwin, 81 Va. 405 (1886); Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 (1888); Chappell v. Trent, 90 Va. 849 , 19 S.E. 314 (1893).

Presence of testator means conscious presence. - The presence of the testator wherein the statute requires attesting witnesses to subscribe their names as such to a will, means the testator's "conscious presence." Baldwin v. Baldwin, 81 Va. 405 (1886); Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 (1888).

Recognition of attestation in testator's presence is substantial signing. - It has been held that the recognition of their attestation by the witnesses to the testator, is a substantial subscribing of their names as witnesses in his presence. Sturdivant v. Birchett, 51 Va. (10 Gratt.) 67 (1853). See also Jensen v. Peck, 16 Va. L. Reg. 915 (1911).

Where testator could have seen signing but did not. - A court of four judges equally divided upon the question whether an attestation of a will out of the room in which the testator is lying, and out of his sight, but in a case in which the testator was able, and might have placed himself in a position to see the witnesses when they signed the paper, is a valid attestation. Moore v. Moore's Ex'r, 49 Va. (8 Gratt.) 307 (1851). See also Neil v. Neil, 28 Va. (1 Leigh) 6 (1829).

Presumptions. - An attestation of a will of lands made in the same room with testator is prima facie an attestation in his presence, according to the statute of wills; attestation not made in the same room is prima facie not an attestation in his presence. But as, in the one case, the attestation is good, if shown to have been made within the scope of testator's view from his actual position, so in the other, it is not good, if it appear, that in the actual relative situation of testator and witnesses, he could not possibly have seen the act of attestation, nor have so changed situation as to have enabled him to see it, without aid from others, which was at hand, but was neither asked nor given. Neil v. Neil, 28 Va. (1 Leigh) 6 (1829). And see Nock v. Nock's Ex'rs, 51 Va. (10 Gratt.) 106 (1853); Baldwin v. Baldwin, 81 Va. 405 (1886).

7. ORDER OF SIGNING.

Witnesses should subscribe their names after the testator has subscribed his; for if the purpose of the attestation is to identify the signature of the testator, this purpose cannot properly be carried out if they precede him in signing. There can be no attestation until there is something to attest. Dudleys v. Dudleys, 30 Va. (3 Leigh) 436 (1832).

But order is immaterial where transaction is one continuous act. - It is immaterial whether the testator makes his signature before or after the witnesses sign the will, where the whole transaction is one continuous act, completed within a few minutes. Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 52 Am. Dec. 97 (1849). See Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Parramore v. Taylor, 52 Va. (11 Gratt.) 220 (1854).

And acknowledgment of attestation after signing by testator is sufficient. - Where the signatures of witnesses are duly acknowledged in the presence of the testator at the time of, or after, signing or acknowledging by the testator, it is sufficient. Jensen v. Peck, 16 Va. L. Reg. 915 (1911).

8. MANNER OF SIGNING AND FORM OF ATTESTATION.

The general rule that a witness must intend to attest the will as a witness, is not applied mechanically; the important fact is not how the witness regarded himself during execution of the will, but what he observed, because the witness' signature serves mainly to identify to whom the testator acknowledged the instrument. In other words, the witness need not realize his status during execution of the will. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735 (1990).

Word "witnesses" is unnecessary. - This section requires the attestation of two subscribing witnesses, but no particular form, or place on the paper is required; yet the witnesses, unless the will is holograph, must subscribe as witnesses, though the word "witnesses" need not appear. Peake v. Jenkins, 80 Va. 293 (1885).

Meaning of "subscribe." - The literal meaning of the word "subscribe," as used in this section is "to write underneath." French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

Two witnesses placed their signatures below the signature of the testatrix on page four of the will, in the presence of the testatrix and in the presence of each other. As a result, the will met § 64.1-49's subscription requirement, as the meaning of the word subscribe was to place underneath, and the will should have been admitted to probate since there was no indication that the will had been fraudulently executed. Hampton Rds. Seventh-Day Adventist Church v. Stevens, 275 Va. 205 , 657 S.E.2d 80, 2008 Va. LEXIS 32 (2008).

Witness may make his mark. - It is settled law that a subscribing witness may attest a will by making his mark, his name being written by another in his presence and at his request. Jesse v. Parker's Adm'rs, 47 Va. (6 Gratt.) 57 (1849).

Attestation is the act of the witnesses, and it was not intended to confide to them the duty of stamping their testimony upon the paper. The subscription of the witnesses is substantially the attestation contemplated by this section, and it is sufficient if the purpose be indicated by the briefest memorandum or merely by a fair presumption arising from the local position of their signatures upon the paper. Whether a memorandum of attestation be general or special, it may be denied or contradicted by the subscribing witnesses, in the whole or in part, and, of course, is open to explanation if in anywise ambiguous. French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

Validity of will does not depend on attestation clause. - An attesting witness is one who signs his name to an instrument for the purpose of proving and identifying it, or one who signs with the intention of being considered a witness to an act in question. The validity of a will depends not on the attestation clause but on the conformity of the execution to the requirement of this section. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948); French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

Any form of signing with the intention of acting as a witness is sufficient, where, as in Virginia, a formal attestation is unnecessary. Attestation is mental, while subscription is mechanical. Attestation is the act of the senses and subscription is the act of the hand. To attest a signature means to take note mentally that the signature exists as a fact. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346 (1948); French v. Beville, 191 Va. 842 , 62 S.E.2d 883 (1951).

Need not state that will was duly signed and sealed. - It is not necessary that the attestation clause shall state that the paper was duly signed and sealed by the testator. Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846).

Witnesses need not sign each sheet of paper. - A will may be written on more than one sheet of paper, and it is good practice to have the testator identify each sheet, but it is not necessary, and it is not necessary that the attesting witnesses sign each sheet or acquaint themselves with the contents of the will. Dearing v. Dearing, 132 Va. 178 , 111 S.E. 286 (1922); Presbyterian Orphans' Home v. Bowman, 165 Va. 484 , 182 S.E. 551 (1935).

Purported witness's name appearing in the first sentence of a will, the appearance which served to name her as a beneficiary under the will, "constituted a sufficient compliance with prerequisites of this section to permit the document to be admitted to probate. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735 (1990).

C. PUBLICATION.

Signing and acknowledgment amount to publication. - Signing and acknowledgment of a will before witnesses amount to what is called a publication of the will, although they are not informed that it is a will and though the testator even calls it a deed. Beane v. Yerby, 53 Va. (12 Gratt.) 239 (1855).

Time of publication is not necessarily fixed by the date of the will; and it may be proved to have been published on a subsequent day, by two subscribing witnesses. Bagwell v. Elliott, 23 Va. (2 Rand.) 190 (1824).

V. PROOF OF EXECUTION.

Burden of proving that the will has been executed in the manner required by this section is upon the proponents. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934); Cross v. Grimes, 184 Va. 926 , 37 S.E.2d 1 (1946); Grady v. Fauls, 189 Va. 565 , 53 S.E.2d 830 (1949).

No particular mode of proof is prescribed. Dudleys v. Dudleys, 30 Va. (3 Leigh) 436 (1832); Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Jesse v. Parker's Adm'rs, 47 Va. (6 Gratt.) 57 (1849); Johnson v. Dunn, 47 Va. (6 Gratt.) 625 (1850); Lamberts v. Cooper's Ex'r, 70 Va. (29 Gratt.) 61 (1877); Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878).

Burden of proof of date of alteration. - The true rule is that there is no presumption of law and that the burden of proof is on the proponent to show that any alteration which he wishes to be considered effective was made before execution; but the face of the paper and the obvious circumstances may amply meet that burden, and the inference to be drawn is always one of fact. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934).

Presumption in favor of finding proper execution. - Courts lean strongly in favor of upholding the validity of wills fairly made, where there is no imputation of fraud. Toward that end, every reasonable presumption ought to be made in favor of finding proper execution of a will. Martin v. Coleman, 234 Va. 509 , 362 S.E.2d 732 (1987).

Due execution may be proved by testimony of one witness. - While a will must be attested by two competent witnesses, its due execution can be proved by the testimony of one witness, but that witness must prove all the facts required by this section to be proved as necessary to the due execution of a will, and among them, that it was attested by two competent witnesses. Bruce v. Shuler, 108 Va. 670 , 62 S.E. 973 (1908). See also Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878).

And proof of handwriting of other witness. - A will of land may be proved by one witness and proof of the handwriting of the other. Smith v. Jones, 27 Va. (6 Rand.) 33 (1827).

Where one attesting witness not credible. - A testamentary paper appeared to be attested by two witnesses; but one of them was not a credible witness, and his attestation was not proved by the other attesting witness, or any other person. Therefore, the paper was not so proved as to be admitted to probate. Johnson v. Dunn, 47 Va. (6 Gratt.) 625 (1850).

Any one subscribing witness can prove execution and attestation of will by himself and the others, and if his testimony is satisfactory that will suffice. Martin v. Coleman, 234 Va. 509 , 362 S.E.2d 732 (1987).

Expert's testimony was insufficient without proof by disinterested witness. - Expert's testimony, comparing the will with exemplars of the testator's handwriting, is insufficient without proof, by a disinterested witness, that the exemplars were themselves in the testator's handwriting. Bowers v. Huddleston, 241 Va. 83 , 399 S.E.2d 811 (1991).

Weight of evidence. - The evidence of witnesses who were present at the execution of the will is entitled to peculiar weight, and especially is this the case with attesting witnesses. Beckwith v. Beckwith, 1 Va. (1 Wash.) 224 (1793); Spencer v. Moore, 8 Va. (4 Call) 423 (1798); Young v. Barner, 68 Va. (27 Gratt.) 96 (1876).

When court will presume that this section was complied with. - If the witnesses to a will are dead, or if there is a failure of recollection on their part, the court will often presume, the will being in other respects regular, that the requirements of this section have been complied with in the formal execution of the instrument. Young v. Barner, 68 Va. (27 Gratt.) 96 (1876). See Smith v. Jones, 27 Va. (6 Rand.) 33 (1827); Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831); Dudleys v. Dudleys, 30 Va. (3 Leigh) 436 (1832); Clarke v. Dunnavant, 37 Va. (10 Leigh) 13 (1839).

Value of attestation clause as evidence. - Upon the death or absence of the subscribing witnesses, the attestation clause becomes prima facie evidence that the will was executed with the formalities recited therein. Clarke v. Dunnavant, 37 Va. (10 Leigh) 13 (1839).

Testimony of attesting witness impeaching validity of will. - The general rule is, that one signing his name as witness to a will, by this act solemnly testifies to the testator's sanity. If afterwards he attempts to impeach the will's validity, his testimony is not to be positively rejected, but received with the most scrupulous jealousy. Young v. Barner, 68 Va. (27 Gratt.) 96 (1876).

But this rule ought not to be rigorously applied where such witnesses, suddenly called upon by the propounder to attest the will without time for due deliberation, testify in his behalf and are bound to detail the circumstances, affording the only reliable data from which the court can deduce its conclusions. Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 (1888). See also Lamberts v. Cooper's Ex'r, 70 Va. (29 Gratt.) 61 (1877); Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878).

In a suit to contest a will, it was contended that the will had not been executed in the manner prescribed in this section. The basis of the contention was the admission of one of the attesting witnesses, prior to the trial, that he did not recall the circumstances as to the presence of the parties when the will was signed and witnessed. However, at the trial the same witness testified that after having discussed the matter with the executor, who was likewise present, he was positive that the will had been signed and witnessed when all of the necessary parties were present together. This testimony was fully corroborated by that of the other attesting witness and the executor. It was held that there was no merit in the contention. Mullins v. Coleman, 175 Va. 235 , 7 S.E.2d 877 (1940).

VI. HOLOGRAPHIC WILLS.
A. REQUISITES AND VALIDITY.

Will wholly in testator's handwriting and signed by him is valid. - If the will is written wholly in the handwriting of the testator and signed by him it is a valid will. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881 (1940).

Word "wholly" is a strong word; but words in law are rarely, if ever, given their absolute and utter meaning, and wholly is not used in this section in its absolute, utter, and rigidly uncompromising sense. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950).

Attestation is unnecessary. - If the writing is signed by the testator in such manner as to make it manifest that the name is intended as a signature and is wholly written by him, it is a valid will, though it is unattested by witnesses. Brown v. Hall, 85 Va. 146 , 7 S.E. 182 (1888). See Roy v. Roy's Ex'r, 57 Va. (16 Gratt.) 418, 84 Am. Dec. 696 (1863); Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 (1888).

Paper purporting to be an attested will may be probated as a holographic will even if it cannot be proven an attested will. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934).

Unsigned attestation clause is immaterial. - A will wholly written, signed and sealed by the testator, who is of sound mind, containing an attestation clause unsigned by witnesses, is valid. Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 (1888).

Printed portions of will written on form may be disregarded. - Where a codicil was written upon a blank form, printed portions of the form on which the writing is found may be disregarded, leaving that portion of the writing which was wholly in the handwriting of the testator and signed by him, and which was complete and entire in itself, a holographic codicil which may be admitted to probate. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

Subsequent change by other than testatrix. - A holographic will written in 1935, on which certain changes were made subsequently in 1946 by a friend of the testatrix solely in order to improve punctuation, capitalization, and phraseology and not to change the meaning of the document, was held valid under this section. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950).

Alterations made by testator do not invalidate will. - Erasures and other alterations made by the testator in a holographic will, even though they are made after the will has been executed, do not invalidate it if his name still remains in such manner as to manifest that it was intended as a signature. The will becomes reexecuted with all the changes as valid and subsisting parts of the new will. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934).

The only logical conclusion to be drawn from interlineations and additions in a holograph will which are in the handwriting of the testator above the signature is that the testator intended for his original signature to be a reexecution of the will with interlineations and additions included. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

But unsigned postscript is invalid. - The abbreviation "P.S.," preceding a sentence written below the signature of a holograph will, and the position of the sentence on the paper, indicated that the sentence was written after the signature was made, and, where nothing on the face of the paper made it manifest that the signature authenticated the words appearing below it, the sentence could not be given effect either as a part of the original will or as a codicil. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

No inference of reexecution as to matter appearing after signature. - But when it appears from the face of the will that there is a testamentary disposition of all or part of testator's estate appearing after the signature and nothing more, no logical inference of reexecution or reauthentication can be drawn. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

Another paper of a testamentary character, bearing the same date, and found folded up with a valid holograph will and written and signed by the testator, is a valid codicil, though it does not refer to the will. Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 (1888).

Codicil may establish will not duly executed. - A duly executed codicil may have the effect of establishing a holographic will which has not been duly executed, but, in order to accomplish this, the will sought to be published must be clearly identified, and, if the codicil is to be effective upon a condition, such condition must be met. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945).

This section makes no distinction, as to what constitutes a sufficient signature, between holograph and attested wills. Pilcher v. Pilcher, 117 Va. 356 , 84 S.E. 667 (1915).

Name must have been intended as signature. - The name appearing on a holograph will is not to be considered a signature unless it appears to have been intended as such, and then it is only a signature as to so much of the paper as it was designed to authenticate. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

Name of testator at beginning is equivocal. - The name of a testator at the commencement of a holograph will is an equivocal act. Ramsey v. Ramsey's Ex'r, 54 Va. (13 Gratt.) 664 (1857); Roy v. Roy's Ex'r, 57 Va. (16 Gratt.) 418 (1863).

The placing of the name in the commencement of a holographic will does not of itself indicate that it was intended as a signature. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945).

And evidence of intent is required. - It is essential that a holographic will, like any other, be signed by the testator in such a manner as to make it manifest that the name is intended as a signature; and therefore, in the absence of any affirmative evidence on the face of the paper that it is intended as a signature, the testator's name appearing at the commencement or in the body of the will is not a sufficient signature. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945).

But name of testator at beginning may be signature if so intended. - Holographic paper writing which began "Roberta Leckie Rittenhouse Written by myself October 13th 1946 My Will," was a complete document disposing of all the testatrix's property, contained no blanks or anything that would indicate that it was not her last will and testament and concluded "This is my last will and testament," showed that the name at the top was manifestly intended as a signature. Hall v. Brigstocke, 190 Va. 459 , 58 S.E.2d 529 (1950).

Decedent's signature in a pre-printed box at the beginning of a handwritten journal purporting to dispose of decedent's property upon her death did not affirmatively demonstrate that the decedent intended the signature to operate as her signature on a will as required by this section, and the journal was therefore held not to constitute a holographic will. Kidd v. Gunter, 262 Va. 442 , 551 S.E.2d 646, 2001 Va. LEXIS 97 (2001).

Will may be signed by initials. - A holograph will to which the testator affixes the initials of his name at the end of the writing is sufficiently signed under this section. Pilcher v. Pilcher, 117 Va. 356 , 84 S.E. 667 (1915).

Initials must be intended as signature. - Holographic writing did not comply with this statute because, although the decedent's initials appeared at the end of the writing, after considering the extrinsic evidence, the circuit court properly determined that the decedent's initials were not written in a manner to make manifest that they were intended as a signature to authenticate the writing as the decedent, in the execution of his will and property settlement agreement, demonstrated that he used his full signature to authenticate legal and testamentary documents; and the use of only his initials therefore raised a doubt as to whether he signed the writing with the intent to authenticate it as and for a codicil. Irving v. Divito, 294 Va. 465 , 807 S.E.2d 741, 2017 Va. LEXIS 174 (2017).

Finality of holograph and attested wills compared. - In holographic wills proof of the handwriting establishes the identity of the paper and the connection of the maker of the will with it. The finality of such a will depends upon the signature, which must be made "in such manner as to make it manifest that the name is intended as a signature"; attested wills not in the handwriting of the testator become complete and final when attested by two witnesses in the mode prescribed by this section. Murguiondo v. Nowland, 115 Va. 160 , 78 S.E. 600 (1913).

Holographic will not found. - Handwriting on a 1997 document was not a holographic will as the decedent's handwritten language considered as a whole was not self-contained such that it could be understood without reference to the typewritten text where: (1) many of the substantive handwritten entries were plainly related to the typewritten text; (2) there was no basis to conclude that the decedent intended that her signature on one page apply only to the isolated phrase propounded by her sister; (3) the decedent signed the bottom of five other pages that she returned to her attorney and made substantive changes to the typewritten text on several of those pages; (4) whether the decedent intended that her signatures validate all the typed and handwritten material appearing above each signature or whether she intended that the signatures merely verify her changes to the document that she contemplated her attorney would redraft could not be determined; and (5) the decedent's signature at the end of the document was not consistent with the sister's claim that the proffered holograph alone was the decedent's last will. Berry v. Trible, 271 Va. 289 , 626 S.E.2d 440 (2006).

B. PROOF OF HANDWRITING.

Burden of proving handwriting is on proponent. - Where the document is sought to be probated as a holographic will, the burden is on the proponents to show that it is "wholly in the handwriting of the testator." Cross v. Grimes, 184 Va. 926 , 37 S.E.2d 1 (1946).

Effect of admitting testimony of interested witnesses. - That a holograph will was wholly in the handwriting of the testator was amply proved by the testimony of two disinterested witnesses and the introduction of authenticated documents in the testator's handwriting, which the trial court compared with the will, and it was immaterial that three allegedly interested witnesses also testified to the handwriting. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372 (1948).

It is competent to prove by whom pretended will written. - While it is enough to show by competent evidence that a pretended holographic will is not in decedent's handwriting, it is also competent to prove by whom it was written. Brown v. Hall, 85 Va. 146 , 7 S.E. 182 (1888). See Tucker v. Calvert, 10 Va. (6 Call) 90 (1806); Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 (1890).

CIRCUIT COURT OPINIONS

Editor's note. - Most of the cases below were decided under former Title 64.1 and prior law.

Applicability. - Section 64.2-404 applied to a document that petitioners sought to admit as the decedent's will where the document was neither wholly in the decedent's handwriting nor signed by two witnesses, thus, it did not meet the requirements of § 64.2-403 , and § 64.2-404 served to relieve strict compliance with the witness requirements of § 64.2-403 . Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).

Witnesses need not sign each sheet of paper. - Although a self-proving certificate was defective because the attesting witnesses printed their signatures on one page of a purported will and signed their names on another page, the two pages taken together constituted a sufficient attestation provision. In re Estate of Krakowian, 64 Va. Cir. 278, 2004 Va. Cir. LEXIS 158 (Loudoun County 2004).

Witnesses must sign in presence of testator. - Where the written will was signed by the decedent in the presence of three witnesses, all of whom were present at the same time and who subscribed in the presence of one another and the decedent, the will was valid under § 64.1-49. Rudwick v. Lloyd, 69 Va. Cir. 139, 2005 Va. Cir. LEXIS 319 (Arlington County 2005).

Power of attorney held not testamentary in character. - Although a durable power of attorney that a decedent's father executed stated that it was not to terminate on his death or disability, it was not a will under Virginia law because it gave the decedent's administrator and another person power to sell property which the father inherited during the father's lifetime, and the trial court refused to admit the power of attorney to probate when the father died before the property was sold. Shakeel v. Khanum, 62 Va. Cir. 188, 2003 Va. Cir. LEXIS 108 (Fairfax County 2003).

Requirement of testamentary intent applies to wills and codicils. - Because it was clear from the terms of a codicil that the decedent intended it to take effect as her last will, as: (1) the codicil was self-sustaining in that it was a separate testamentary instrument and not necessarily dependent upon the proof or establishment of the will; (2) its provisions were not so involved with those of the will as to render it incapable of independent application; and (3) there was no valid objection to its being probated as a separate testamentary instrument, the codicil was a valid will and could be admitted to probate. Russell v. Lipps, 66 Va. Cir. 295, 2004 Va. Cir. LEXIS 351 (Norfolk Dec. 16, 2004).

The mere label "codicil" did not act as an impediment to its probative quality, and there was no warrant in the existing law of Virginia for the statement that a testamentary writing was not independently probative because it was styled a codicil or was in fact a codicil. Russell v. Lipps, 66 Va. Cir. 295, 2004 Va. Cir. LEXIS 351 (Norfolk Dec. 16, 2004).

Paper written entirely in a decedent's handwriting met the requirements for a holographic codicil to the decedent's will where the codicil had testamentary intent, as the second paragraph of the writing began with a phrase clearly indicating that the codicil was related to death. Eubank v. Eubank, 68 Va. Cir. 33, 2005 Va. Cir. LEXIS 92 (Amherst County 2005).

Executor's motion to admit the March 2, 2012, writing to probate was denied because it did not possess the requisite testamentary intent to be probated as a holographic codicil as the decedent did not reference her will, her estate, or even some time period for when the disposition of money was to be made. In re Estate of McKagen, 90 Va. Cir. 118, 2015 Va. Cir. LEXIS 43 (Fairfax County Mar. 24, 2015).

Executor's motion to admit the December 7, 2012, writing to probate was granted because it met the requirements for a holographic codicil as that note was not invalid because it appeared that the decedent intended her first name to be the signature to her note, which was evidenced by the use of "Thanks" prior to signing her name, and the fact that the name was written at the conclusion of the note; and that note contained the requisite testamentary intent because the decedent did not expect the transfer to occur until her death, and only if her estate was valued at over $750,000. In re Estate of McKagen, 90 Va. Cir. 118, 2015 Va. Cir. LEXIS 43 (Fairfax County Mar. 24, 2015).

Testamentary intent lacking. - Trial court rejected a surviving partner's claim that the surviving partner and a deceased partner made a valid joint will when they signed an agreement which gave the deceased partner's interest in a warehouse to the surviving partner because the agreement lacked the requisite testamentary intent and it was signed only by both partners and a notary public, and the partners could not serve as witnesses to their own joint will. Quenza v. Baum, 62 Va. Cir. 284, 2003 Va. Cir. LEXIS 295 (Norfolk 2003).

Testamentary intent established. - The Court concludes that the three-page handwritten document evidences the requisite testamentary intent to establish it as a valid codicil because: (1) the use of the word "left" is "of testamentary significance and in that sense is in common use"; (2) the use of the word "left" and the fact the deceased signed the writing at the bottom of the page in a manner consistent with the signing of a testamentary instrument; and (3) the use of the phrase "to be divided equally" evinces the decedent's desire to dispose of his property. In re Estate of Hamner, 73 Va. Cir. 424, 2007 Va. Cir. LEXIS 228 (Charlottesville July 13, 2007).

Purported will satisfied this section because (1) the testator sought assistance in executing his will, (2) the testator signed the will before three witnesses, (3) each witness signed in the presence of the testator and the other witnesses, and (4) one of the witnesses signed as a notary, who could serve as a witness. In re Canody Estate, 95 Va. Cir. 92, 2017 Va. Cir. LEXIS 21 (Nelson County Jan. 25, 2017), aff'd, 295 Va. 597 , 816 S.E.2d 286 (2018).

Printed portions of will written on form may be disregarded. - Two numbered handwritten paragraphs at the bottom of a pre-printed will document constituted the last will and testament of the decedent, and would be admitted to probate, disregarding the printed material, as it clearly was the decedent's testamentary act, it disposed of all his property at his death, and it named the party to receive the property; although there was no formal expression of testamentary intent, no provision for payment of debts, and no appointment of a personal representative, these were not necessary. In re Will of Morris, 67 Va. Cir. 29, 2005 Va. Cir. LEXIS 7 (Spotsylvania County 2005).

Section must be complied with. - Executor was instructed that as the legal formalities were not satisfied, a decedent's orally expressed wishes as to how her residuary estate was to be distributed could not be given effect, despite the testimony of three credible witnesses, without contradiction, as to a conversation, a week before a car accident in which the decedent was fatally injured, in which the decedent told them, quite specifically, about how she planned to divide her residuary estate. Estate of Doughtie, 70 Va. Cir. 329, 2006 Va. Cir. LEXIS 48 (Roanoke 2006).

Defendant failed to meet her burden of proof to show that the decedent signed a 2012 will in conformity with Va. Code Ann. § 64.2-403 ; it was clear from the evidence that the 2012 will was an elaborate fake and that it was not prepared until after the decedent's death. Palesis v. Hlouverakis, 88 Va. Cir. 293, 2014 Va. Cir. LEXIS 75 (Henrico County May 29, 2014).

Will offered for probate contained the same three pages as those present at the time of execution because (1) it was not statutorily required that the pages be stapled or that the testator initial each page, (2) credible testimony of the testator's friend showed the will reflected the testator's desires expressed shortly before he died, so the document submitted did not suffer from the substitution of any pages, and (3) the lack of a staple where one had been did not defeat the testator's testamentary plan, as nothing showed pages were substituted. In re Canody Estate, 95 Va. Cir. 92, 2017 Va. Cir. LEXIS 21 (Nelson County Jan. 25, 2017), aff'd, 295 Va. 597 , 816 S.E.2d 286 (2018).

Documents not properly executed. - Evidence failed to show that the documents in question were properly executed as required, and the evidence was overwhelming that the documents had been procured by undue influence and fraud; the executor essentially self-appointed himself under an impeached will, and it was in the estate's interest to investigate where the testator's personal belongings had gone. Williams v. Machen, 104 Va. Cir. 70, 2019 Va. Cir. LEXIS 1189 (Fairfax County Dec. 16, 2019).

Requirements for due execution of will met. - Clerk was directed to admit the decedent's November 4, 2017, will to probate because the will was entirely in the handwriting of the decedent; the will met all the requirements for due execution of a will as no form of attestation was required, and the decedent wrote and signed the will in the presence of two witnesses who immediately signed the will in the presence of each other; it was irrelevant that the proponent of the will was both a witness and beneficiary to the will; and the will clearly demonstrated testamentary intent to leave the property to the proponent of the will when the decedent passed away and could not be interpreted as making a present gift, a draft, a memorandum, or instruction to an attorney for a future will. Will of Brockman, 103 Va. Cir. 153, 2019 Va. Cir. LEXIS 457 (Amherst County Sept. 27, 2019).

Codicil requirements not found. - Writing did not comply with statutory requirements in that it was not manifest that the name on the writing was intended as the decedent's signature; the writing, which removed the decedent's son from the will entirely, was handwritten in cursive on a tab-divider in a binder, the writing established a thought of the decedent to make a change to his will and was tentative in nature, and thus testamentary intent to create a codicil had not been established by clear and convincing evidence. Irving v. Divito, 94 Va. Cir. 226, 2016 Va. Cir. LEXIS 143 (Chesapeake Sept. 2, 2016), aff'd, 294 Va. 465 , 807 S.E.2d 741 (2017).

Residuary clause. - Wife's motion for reconsideration to challenge the residuary clause of the late husband's will was time barred because it was not filed within one year of the will being admitted to probate, but in any event, the husband was allowed to do what he did regarding the residuary clause. Thadani v. Malkani, 73 Va. Cir. 255, 2007 Va. Cir. LEXIS 75 (Fairfax County 2007).

Holographic will admitted to probate. - Decedent's daughter was granted summary judgment in her action seeking to admit a writing as the last will and testament of the decedent because there was no genuine issue of material fact when the parties agreed that the relevant portion of the writing was wholly in the handwriting of the decedent, and the writing was on a typewritten form, was self-contained, and could be completely understood without reference to the typewritten text; the typewritten portion of the writing did not interfere or even interact with the handwriting requirement for a holographic will, two plainly disinterested witnesses testified under oath that the writing was wholly in the handwriting of the decedent, and the language the decedent used clearly expressed her intent to leave all of her property to the daughter. Klundt v. Klundt, 78 Va. Cir. 162, 2009 Va. Cir. LEXIS 14 (Fairfax County 2009).

Presumption of loss. - Since the evidence showed that after execution, the decedent's will was not in possession of the decedent and not accessible to him, the presumption of loss arose. Because the court was not convinced by clear and convincing evidence that this presumption of loss had been rebutted and that the will was revoked by the decedent, the court found that the conformed copy of the will should be admitted to probate. In re Estate of Brown, 87 Va. Cir. 353, 2013 Va. Cir. LEXIS 139 (Fairfax County Dec. 20, 2013).

§ 64.2-404. Writings intended as wills.

  1. Although a document, or a writing added upon a document, was not executed in compliance with § 64.2-403 , the document or writing shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
  2. The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator's signature, except in circumstances where two persons mistakenly sign each other's will, or a person signs the self-proving certificate to a will instead of signing the will itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent's date of death and in which all interested persons are made parties.

    (2007, c. 538, § 64.1-49.1; 2012, c. 614.)

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

For article, "Irresolute Testators, Clear and Convincing Wills Law," see 73 Wash. & Lee L. Rev. 3 (2016).

Research References. - Virginia Forms (Matthew Bender). No. 5-1401 Complaint to Establish Lost Will; No. 6-1001 Complaint to Impeach a Will, et seq.; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-431 Order of Probate of Will and Codicil, et seq.

CASE NOTES

Application. - Son was entitled to attempt to establish a 2005 writing made by his mother as a subsequent, superseding holographic will because the mother did not die until September 2008, and a determination whether the writing offered for probate was a valid will should have applied the law in effect at date of the maker's death, including § 64.1-49.1, which became effective in 2007. Schilling v. Schilling, 280 Va. 146 , 695 S.E.2d 181 (2010) (decided under prior law).

Lack of testamentary intent. - Decedent did not execute the holographic writing with testamentary intent because, if he intended and believed the writing to be an effective codicil, it was reasonable to conclude that he would have mentioned it in his notes to his brother, who was the executor of the decedent's estate; and the decedent's failure to do so, along with his failure to sign the writing in the same manner as his will, suggested that he did not consider the writing to have binding testamentary effect. Irving v. Divito, 294 Va. 465 , 807 S.E.2d 741, 2017 Va. LEXIS 174 (2017).

CIRCUIT COURT OPINIONS

Applicability. - This section applied to a document that petitioners sought to admit as the decedent's will where the document was neither wholly in the decedent's handwriting nor signed by two witnesses, thus, it did not meet the requirements of § 64.2-403 , and § 64.2-404 served to relieve strict compliance with the witness requirements of § 64.2-403 . Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).

Limitations met. - Limitations under subsection B of § 64.2-404 were satisfied where the decedent had signed the document at issue, and all three witnesses testified that they witnessed the decedent sign the document. Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).

Presumption of loss. - Plaintiff's exhibit 1, a photocopy of the decedent's 2011 will, was admitted to probate; the presumption of loss applied because the original was left on the kitchen table, and there was no credible evidence to rebut the presumption of loss. Palesis v. Hlouverakis, 88 Va. Cir. 293, 2014 Va. Cir. LEXIS 75 (Henrico County May 29, 2014).

Codicil requirements not found. - Writing did not comply with statutory requirements in that it was not manifest that the name on the writing was intended as the decedent's signature; the writing, which removed the decedent's son from the will entirely, was handwritten in cursive on a tab-divider in a binder, the writing established a thought of the decedent to make a change to his will and was tentative in nature, and thus testamentary intent to create a codicil had not been established by clear and convincing evidence. Irving v. Divito, 94 Va. Cir. 226, 2016 Va. Cir. LEXIS 143 (Chesapeake Sept. 2, 2016), aff'd, 294 Va. 465 , 807 S.E.2d 741 (2017).

Testamentary intent established. - Clear and convincing evidence established that the decedent intended the document to constitute her will where even though it lacked a dispositive provision, its language clearly showed that intent, the testimony showed that decedent intended to revoke her prior estate plan. Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).

§ 64.2-404.1. Reformation of will to correct mistakes or achieve decedent's tax objectives.

  1. The court may reform the terms of a decedent's will, or any codicil thereto, even if unambiguous, to conform the terms to the decedent's intention if it is proved by clear and convincing evidence that both the decedent's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.
  2. If shown by clear and convincing evidence, the court may modify the terms of a decedent's will to achieve the decedent's tax objectives in a manner that is not contrary to the decedent's probable intention.
  3. Notice must be given and a person may represent and bind another person in proceedings under this section to the same extent that a person may represent and bind another person in proceedings brought under § 64.2-733 or 64.2-734 relating to trusts.
  4. The remedies granted by this section are available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent's date of death and in which all interested persons are made parties.
  5. This section applies to all wills and codicils regardless of the date of their execution and all judicial proceedings regardless of when commenced, except that this section shall not apply to any judicial proceeding commenced before July 1, 2018, if the court finds that its application would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of the parties.

    (2018, c. 44.)

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-405. Interested persons as competent witnesses.

No person is incompetent to testify for or against a will solely by reason of any interest he possesses in the will or the estate of the testator.

(Code 1950, §§ 64-53, 64-54; 1962, c. 338; 1968, c. 656, § 64.1-51; 2012, c. 614.)

CASE NOTES

An executor is competent as an attesting witness to a will. Salyers v. Salyers, 186 Va. 927 , 45 S.E.2d 481 (1947) (decided under prior law).

Creditors and legatees are now competent witnesses. - The law with reference to the competency of legatees and devisees as attesting witnesses was changed by the revision of 1919 so as to relieve them of the forfeiture provided by § 2529 of the Code of 1887. Epes' Adm'r v. Hardaway, 135 Va. 80 , 115 S.E. 712 (1923) (decided under prior law); Salyers v. Salyers, 186 Va. 927 , 45 S.E.2d 481 (1947) (decided under prior law).

CIRCUIT COURT OPINIONS

Joint testators not competent to serve as witnesses to their own joint will. - Trial court rejected a surviving partner's claim that the surviving partner and a deceased partner made a valid joint will when they signed an agreement which gave the deceased partner's interest in a warehouse to the surviving partner because the partners could not serve as witnesses to their own joint will. Quenza v. Baum, 62 Va. Cir. 284, 2003 Va. Cir. LEXIS 295 (Norfolk 2003)(decided under prior law).

Beneficiary permitted to witness will. - Clerk was directed to admit the decedent's November 4, 2017, will to probate because the will was entirely in the handwriting of the decedent; the will met all the requirements for due execution of a will as no form of attestation was required, and the decedent wrote and signed the will in the presence of two witnesses who immediately signed the will in the presence of each other; it was irrelevant that the proponent of the will was both a witness and beneficiary to the will; and the will clearly demonstrated testamentary intent to leave the property to the proponent of the will when the decedent passed away and could not be interpreted as making a present gift, a draft, a memorandum, or instruction to an attorney for a future will. Will of Brockman, 103 Va. Cir. 153, 2019 Va. Cir. LEXIS 457 (Amherst County Sept. 27, 2019).

§ 64.2-406.

Repealed by Acts 2016, c. 266, cl. 2.

Editor's note. - Former § 64.2-406 , pertaining to when exercise of power of appointment by will valid, derived from Code 1950, § 64-52; 1968, c. 656, § 64.1-50; 2012, c. 614.

§ 64.2-407. Will of personal estate of nonresidents.

Notwithstanding the provisions of § 64.2-403 , the will of a person domiciled out of the Commonwealth at the time of his death shall be valid as to personal property in the Commonwealth if the will is executed according to the law of the state or country in which the person was so domiciled.

(Code 1950, § 64-55; 1968, c. 656, § 64.1-53; 2012, c. 614; 2016, c. 266.)

The 2016 amendments. - The 2016 amendment by c. 266 substituted " § 64.2-403 " for " §§ 64.2-403 and 64.2-406 ."

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 1 Introductory. § 1.04 Conflict of Laws. Cox.

CASE NOTES

In Virginia the policy of liberality and relaxation in favor of soldiers and seamen with respect to the making of wills of personal property finds legislative recognition in this section. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 (1921)(decided under prior law).

Nuncupative will is ineffectual as to real estate. - A nuncupative will is of no effect in law in relation to the testator's real estate, or the profits to accrue therefrom. But where, in the lifetime of the testator, a division was made between him and his two brothers of their father's real estate, which was acted upon by him in his lifetime by taking possession of the part allotted to him, and was also confirmed and ratified by him at the time of making his nuncupative will, the validity of such division was recognized in a court of equity. Page v. Page, 41 Va. (2 Rob.) 424 (1843)(decided under prior law).

Letters. - The lower court did not err in according testamentary effect to a soldier's letter written in France in direct contemplation of the fact that the writer might not survive the war, containing a definite expression of the disposition which in that event he desired to have made of whatever property he might leave behind, notwithstanding that the testator in all probability did not think he was writing a will. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 (1921)(decided under prior law).

§ 64.2-408. Presumption of formal execution of wills made by persons in military service; will of personal estate of persons in military service and seamen.

  1. A will executed by a person while in the military service of the United States, as that term is defined in the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.), that purports on its face to be witnessed as required by § 64.2-403 , upon proof of the signature of the testator by any two disinterested witnesses, shall be presumed, in the absence of evidence to the contrary, to have been executed in accordance with the requirements of that section and shall be admitted to probate as if the formalities of execution were proved.
  2. Notwithstanding the provisions of § 64.2-403 , a person while in the military service of the United States, or a seaman or mariner while at sea, may dispose of his personal estate in the same manner as he might heretofore have done. (Code 1950, §§ 64-55, 64-56; 1968, c. 656, §§ 64.1-53, 64.1-54; 2012, c. 614; 2016, c. 266.)

Editor's note. - At the direction of the Virginia Code Commission, "50 U.S.C. § 3901 et seq." was substituted for "50 U.S.C. app. § 501 et seq." to conform to the reclassification of Title 50 U.S.C. Appendix.

The 2016 amendments. - The 2016 amendment by c. 266 substituted " § 64.2-403 " for " §§ 64.2-403 and 64.2-406 " in subsection B.

CASE NOTES

In Virginia the policy of liberality and relaxation in favor of soldiers and seamen with respect to the making of wills of personal property finds legislative recognition in this section. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 (1921)(decided under prior law).

Nuncupative will is ineffectual as to real estate. - A nuncupative will is of no effect in law in relation to the testator's real estate, or the profits to accrue therefrom. But where, in the lifetime of the testator, a division was made between him and his two brothers of their father's real estate, which was acted upon by him in his lifetime by taking possession of the part allotted to him, and was also confirmed and ratified by him at the time of making his nuncupative will, the validity of such division was recognized in a court of equity. Page v. Page, 41 Va. (2 Rob.) 424 (1843)(decided under prior law).

Letters. - The lower court did not err in according testamentary effect to a soldier's letter written in France in direct contemplation of the fact that the writer might not survive the war, containing a definite expression of the disposition which in that event he desired to have made of whatever property he might leave behind, notwithstanding that the testator in all probability did not think he was writing a will. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 (1921)(decided under prior law).

§ 64.2-409. Wills of living persons lodged for safekeeping with clerks of certain courts.

  1. A person or his attorney may, during the person's lifetime, lodge for safekeeping with the clerk of the circuit court serving the jurisdiction where the person resides any will executed by such person. The clerk shall receive such will and give the person lodging it a receipt. The clerk shall (i) place the will in an envelope and seal it securely, (ii) number the envelope and endorse upon it the name of the testator and the date on which it was lodged, and (iii) index the same alphabetically by name of both the testator and the executor then qualified in a permanent index that shows the number and date such will was deposited.
  2. An attorney-at-law, bank, or trust company that has held a will for safekeeping for a client for at least seven years and that has no knowledge of whether the client is alive or dead after such time may lodge such will with the clerk as provided in subsection A.
  3. The clerk shall carefully preserve the envelope containing the will unopened until it is returned to the testator or his nominee in the testator's lifetime upon request of the testator or his nominee in writing or until the death of the testator. If such will is returned during the testator's lifetime and is later returned to the clerk, it shall be considered to be a separate lodging under the provisions of this section.
  4. Upon notice of the testator's death, the clerk shall open the will and deliver the same to any person entitled to offer it for probate.
  5. The clerk shall charge a fee of $5 for lodging, indexing, and preserving a will pursuant to this section.
  6. The provisions of this section are applicable only to the clerk's office of a court where the judge or judges of such court have entered an order authorizing the use of the clerk's office for such purpose.
  7. The clerk may destroy any will that has been lodged in his office for safekeeping under this section for 100 years or more.

    (Code 1950, § 64-57.1; 1958, c. 392; 1964, c. 390; 1968, c. 656, § 64.1-56; 1970, c. 567; 2012, c. 614; 2019, c. 529; 2020, cc. 68, 589, 1063.)

Editor's note. - Acts 2020, c. 1063, cl. 2 provides: "That for any clerk of a circuit court that does not have an electronic program capable of indexing wills by the name of both the testator and the executor as of July 1, 2020, the provisions of this act shall become effective on July 1, 2022."

The 2019 amendments. - The 2019 amendment by c. 529 added subsection G.

The 2020 amendments. - The 2020 amendments by cc. 68 and 589 are identical, and substituted "$5" for "$2" in subsection E.

The 2020 amendment by c. 1063, inserted "by name of both the testator and the executor then qualified" in subsection A.

Article 2. Revocation and Effect.

§ 64.2-410. Revocation of wills generally.

  1. If a testator with the intent to revoke a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.
  2. If a testator executes a will in the manner required by law or other writing in the manner in which a will is required to be executed that expressly revokes a former will, such former will, including any codicil thereto, is void and of no effect.
  3. If a testator executes a will or codicil in the manner required by law that (i) expressly revokes a part, but not all, of a former will or codicil or (ii) contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil is effective upon the death of the testator.

    (Code 1950, § 64-59; 1968, c. 656, § 64.1-58.1; 1985, c. 431; 2012, c. 614.)

    I. General Consideration. II. Destruction or Cancellation of Will. III. Revocation By Subsequent Will, Codicil or Writing.

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973); for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974); for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976); for the year 1979-1980, see 67 Va. L. Rev. 369 (1981); for the year 1985, see 19 U. Rich. L. Rev. 779 (1985).

For note, "An Analysis of the Virginia Wills Act Formalities and the Need for a Dispensing Power Statute in Virginia," see 50 Wash. & Lee L. Rev. 1145 (1993).

Research References. - Virginia Forms (Matthew Bender). No. 5-1401 Complaint to Establish Lost Will, et seq.; No. 15-107 Codicil; No. 15-201 Preamble to Will.

I. GENERAL CONSIDERATION.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

The General Assembly has precisely defined the several methods by which revocation may be accomplished. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

Section must be complied with. - In order that the revocation of a will may be valid the provisions of this section must be followed. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881 (1940); Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609 (1953).

A commission of lunacy against a testator is not a revocation of a will which he made when of sound mind. Hughes v. Hughes' Ex'r, 16 Va. (2 Munf.) 209 (1811).

Death of a husband was no revocation of the will of his wife validly made in his lifetime. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21 (1872).

In the absence of contract, joint wills are revocable by either testator at pleasure. Williams v. Williams, 123 Va. 643 , 96 S.E. 749 (1918).

Revocation based on erroneous advice. - The fact that a testator had been erroneously advised on a point, and thereby induced to revoke his will, is no ground for avoiding the revocation. Skipwith v. Cabell's Ex'r, 60 Va. (19 Gratt.) 758 (1870).

Revocation by enactment of law. - The fact that a will is ambulatory and speaks as of the maker's death does not preclude the General Assembly from enacting laws which revoke and declare a nullity an existing will upon the occurrence of a specified event such as marriage. After such a revocation, unless the will is revived in a manner prescribed by law, the will never speaks. Wilson v. Francis, 208 Va. 83 , 155 S.E.2d 49 (1967).

Revocation by implication is not favored. Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609 (1953).

II. DESTRUCTION OR CANCELLATION OF WILL.

Cancellation requires physical defacement or mutilation. - The revocation of a will by cancellation, within the meaning of this section, contemplates marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to revoke. If written words are used for the purpose, they must be so placed as to physically affect the written portion of the will, not merely on blank parts of the paper on which the will is written. If the writing intended to be the act of cancelling does not mutilate, or erase, or deface, or otherwise physically come in contact with any part of a written word of the will, it cannot be given any greater weight than a similar writing on a separate sheet of paper, which identifies the will referred to just as definitely as does the writing on the back. If a will may be revoked by writing on the back, separable from the will, it may be done by a writing not on the will, and this the statute forbids. Thompson v. Royall, 163 Va. 492 , 175 S.E. 748 (1934); Franklin v. McLean, 192 Va. 684 , 66 S.E.2d 504 (1951).

Revocation of a will by cancellation, within the meaning of former § 64.1-58, contemplated marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to revoke. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115 (1980).

Revocation by mutilation can be accomplished only when the act of mutilation is performed in accordance with this section. If ratification of mutilation by accident or by the act of some person outside the presence of the testator or without his direction is to become one of the methods by which a properly executed will may be revoked, it must remain for the legislature to say so. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

Act and intent are essential to revocation. - To effect revocation of a duly executed will, in any of the methods prescribed by this section, two things are necessary: (1) the doing of one of the acts specified, (2) accompanied by the intent to revoke - the animus revocandi. Proof of either, without proof of the other, is insufficient. Thompson v. Royall, 163 Va. 492 , 175 S.E. 748 (1934).

Revocations effective if support cancellation inference. - Whenever any of the statutory methods are employed by the testator with an intent to revoke, the changes are effective, even though made after execution of a duly attested will, provided they sufficiently support an inference of cancellation. Goriczynski v. Poston, 248 Va. 271 , 448 S.E.2d 423 (1994).

Mere writing upon will is not cancellation. - The great weight of authority is to the effect that the mere writing upon a will which does not in anywise physically obliterate or cancel the same is insufficient to work a destruction of a will by cancellation, even though the writing may express an intention to revoke and cancel. This appears to be the better rule. Thompson v. Royall, 163 Va. 492 , 175 S.E. 748 (1934).

Intent to revoke by mutilation can, under certain carefully defined circumstances, be presumed. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

Pencil marks presumed made with intent to revoke. - Contestants brought suit to set aside a paper writing which had been admitted to probate ex parte, as the last will of decedent, on the ground that it had been found among decedent's effects in her possession in a canceled and mutilated condition. The proponents submitted evidence that deceased a year before her death while sick in a hospital requested her attorney to secure and care for certain papers then located in her home. He found among the papers the purported will, dated about seventeen years before, written and signed wholly in deceased's handwriting in ink, but which had pencil lines extending through each and every line, including the signature. From those facts it was presumed that the pencil marks were made by decedent with the intention of revoking the instrument in a manner required by this section. Since appellants offered no evidence to rebut that presumption, it prevailed. Franklin v. McLean, 192 Va. 684 , 66 S.E.2d 504 (1951).

Burden of rebutting presumption. - Whatever presumption arises from acts of cancellation or mutilation, it is rebuttable, but the burden of the rebuttal rests upon the proponent. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115 (1980).

The presumption casts upon proponents of a will the burden of producing evidence to the contrary. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

Evidence to the contrary need not be testimonial evidence and may be physical and circumstantial. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

Partial obliteration is evidence to the contrary. - Had obliteration of the will been total, the presumption that it was an act "performed by the testator with the intention of revoking" would be strong. Since total obliteration could have been achieved as readily as partial obliteration, partial obliteration is evidence to the contrary. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973); Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115 (1980).

Partial mutilation. - A mutilated will seldom is one that is completely destroyed. There usually remain words, phrases, paragraphs and even pages that are legible and unmarked. The mere fact that the mutilation is only partial does not of itself satisfy or neutralize the presumption of a revocation. The presumption remains until it is overcome. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115 (1980).

Tampering with will by cutting, tearing or burning. - The presumption of revocation does not apply only where there is a complete destruction, obliteration or cancellation of a will; it also applies to a will which has been tampered with in some manner by cutting, tearing or burning. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115 (1980).

When the presumption is neutralized, the burden of proving revocation falls upon contestants. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

Former § 64.1-58 permitted partial revocation of a formally attested will through cancellation by the testator, with intent to partially revoke. Etgen v. Corboy, 230 Va. 413 , 337 S.E.2d 286 (1985).

Cancellation of certain words in will. - Pursuant to this section, where a paper offered for probate has been proved to have been properly executed as a will, but certain words in it have been canceled since its execution, the whole paper, including the canceled words, is to be treated by the probate court as the last will and testament of the deceased, in the absence of some evidence that the cancellation was done by the deceased or by some person in his presence and by his direction, which would be sufficient to show that fact, or that the instrument was found after the testator's death among his repositories in the mutilated condition it was in when offered for probate, and under such circumstances that the fact of revocation might to the extent of the cancellation be presumed. Harris v. Wyatt, 113 Va. 254 , 74 S.E. 189 (1912).

Presumption of intent to revoke holograph will. - See Wilkes v. Wilkes, 115 Va. 886 , 80 S.E. 745 (1914) and Franklin v. McLean, 192 Va. 684 , 66 S.E.2d 504 (1951).

Direction to destroy not carried out is insufficient. - Although a testator has directed his will to be destroyed, and believes that it has been destroyed as requested, yet if it is not in fact destroyed, such direction and belief will not operate as a revocation of the will, even in relation to the personal estate. Malone's Adm'r v. Hobbs, 40 Va. (1 Rob.) 346 (1842); Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831).

Presumption when will in custody of testator. - It is generally agreed that if a will produced for probate, which is shown to have been in the custody of the testator after its execution, was found among the testator's effects after his death, in such a state of mutilation, obliteration or cancellation as represents a sufficient act of revocation within the meaning of the applicable statute, it will be presumed, in the absence of evidence to the contrary, that such act was performed by the testator with the intention of revoking the instrument. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115 (1980).

Presumption of revocation from disappearance of will. - Where it appears that a person has made a will which cannot be found after his death, the presumption is that it was destroyed by the testator animo revocandi. This is especially true where the will is traced to his possession, and never traced out of it. Shacklett v. Roller, 97 Va. 639 , 34 S.E. 492 (1899). See also Malone's Adm'r v. Hobbs, 40 Va. (1 Rob.) 346, 39 Am. Dec. 263 (1842); Appling v. Eades's Adm'r, 42 Va. (1 Gratt.) 286 (1844); Jackson v. Hewlett, 114 Va. 573 , 77 S.E. 518 (1913).

A will known to have been in the testator's possession, and not found after his death, is presumed to have been intentionally destroyed by him. Wheat v. Wheat, 3 Va. L. Reg. (n.s.) 177, aff'd by divided court in, 119 Va. 861 , 91 S.E. 827 (1916).

Where an executed will in the testator's custody cannot be found after his death there is a presumption that it was destroyed by the testator animo revocandi. Harris v. Harris, 216 Va. 716 , 222 S.E.2d 543 (1976).

Is stronger than that from mutilation of will. - Nonexistence of a will known to have existed once is a stronger predicate for a presumption of revocation than the existence of a will found in testator's personal effects, even if mutilated. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221 (1973).

But is merely prima facie. - This presumption, however, is only prima facie, and may be rebutted, but the burden is upon those who seek to establish such an instrument to assign and prove some other cause for its disappearance. Shacklett v. Roller, 97 Va. 639 , 34 S.E. 492 (1899); Jackson v. Hewlett, 114 Va. 573 , 77 S.E. 518 (1913); Harris v. Harris, 216 Va. 716 , 222 S.E.2d 543 (1976).

Presumption where missing will was not accessible to testator. - When due execution is established, and it is shown that the will was not thereafter in the possession of the testator or accessible to him, no presumption of revocation arises on failure to find it, but rather a presumption that it was lost arises and the burden of showing revocation is on him who asserts it. Harris v. Harris, 216 Va. 716 , 222 S.E.2d 543 (1976).

Procedure where duplicate originals, one of which is altered, are found. - Where duplicate originals of a formally attested will are in the possession of the testator from the time of execution until discovery among his effects after death and one version is altered while the other is in its original condition, then neither will is entitled to a presumption that it is the true will of the testator. In such a situation, the proponents of the different versions of the will must prove that their version is the true will. Etgen v. Corboy, 230 Va. 413 , 337 S.E.2d 286 (1985).

Evidence supported cancellation. - The physical act of drawing lines through the typed provisions of will article unambiguously supported an inference of cancellation. Furthermore, there was the unrebutted presumption that the testator made these changes with the intent to revoke. When, as here, the will presented for probate had been in the testator's custody after execution and was found among his effects at death with provisions marked through that constitute a sufficient act of cancellation within the meaning of the applicable statute, a rebuttable presumption arises that such marks were made with the intention of revoking the affected provisions. In addition, even though the marginal notes were of no legal effect, they did support the conclusion drawn from an examination of the document left by the testator that he meant a partial, not complete, revocation of the will. Goriczynski v. Poston, 248 Va. 271 , 448 S.E.2d 423 (1994).

III. REVOCATION BY SUBSEQUENT WILL, CODICIL OR WRITING.

Due execution is essential. - Where a writing containing a clause expressly revoking former wills is improperly executed, or the testator is lacking in testamentary capacity, the writing fails altogether and in toto. The disposing part and the revoking part of the will are both ineffectual and fall together. Barksdale v. Barksdale, 39 Va. (12 Leigh) 535 (1842).

"Legend of revocation" on holographic will. - In a suit to declare a purported holographic will null and void because of a "legend of revocation" which appeared in a blank space between the date of the will and the attestation clause and above the testator's signature, two attesting witnesses testified that the "legend of revocation" was not on the will at the time they signed it. The entire will, including the "legend of revocation," with the exception of the signature of the two attesting witnesses, was in the handwriting of the testator. It was held that for the revocation to be valid, it was not necessary that the will be signed again if the name of the testator remained in such manner that it was manifestly intended by him as and for his signature to the revocation. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881 (1940).

Prior will revoked only insofar as inconsistent. - A prior will was revoked by a subsequent will only to the extent that the former was plainly inconsistent with the latter. Gordon v. Whitlock, 92 Va. 723 , 24 S.E. 342 (1896).

An earlier will is ordinarily displaced by a later testamentary instrument only insofar as it is clearly irreconcilable with it. Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609 (1953).

A former will is not revoked in whole or in part by a later inconsistent will unless there is, in fact, such conflict between the two as necessarily to have the effect of supplanting the former by the latter, in whole or in part, and thus preclude the former from operating as a will upon the subject matter at the death of the maker. Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144 (1958).

Doctrine of dependent relative revocation. - Under the doctrine of dependent relative revocation, if a testator cancels or destroys a will, or does any other act to vitiate it, with the present intention of making a new one immediately, and the new will is not made, or if made fails of effect because not properly executed, or for any other reason, then the old will, having been conditionally revoked, still stands, on the theory that if the testator is not able to carry out his whole testamentary intent in making the new will, or in making changes in the old one, then it is to be presumed that he prefers his old will to intestacy; that the revocation was conditioned upon the new testamentary disposition being effective. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950).

Doctrine is recognized in Virginia. - The doctrine of dependent relative revocation is clearly recognized in Barksdale v. Barksdale, 39 Va. (12 Leigh) 535 (1842). No later Virginia decision has modified the authority of that case, or questioned the soundness of the principles upon which it was decided - unless the apparent ignoring of the principles in the first decision of Hugo v. Clark, 125 Va. 126 , 99 S.E. 521 (1919) - be considered contra. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950).

Lost revoking will may be established. - Where a will which revokes a former will has been lost or destroyed and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will which it revokes. Hugo v. Clark, 125 Va. 126 , 99 S.E. 521 (1919).

But there is no presumption that lost will contained revocation clause. - Where it is proved that a will was executed but afterwards lost or destroyed by the testator, or some other person, without an intention to revoke it, it will not, in the absence of proof, be presumed that it contained an express clause of revocation. In such case, an existing prior will is only revoked by the subsequent lost will to the extent that the provisions of the lost will are irreconcilably inconsistent. It is not necessary for the contents of the lost will to be proved, if enough be proved to show that it revoked the former will. Hylton v. Hylton, 42 Va. (1 Gratt.) 161 (1844).

Alterations and deletions by another to clarify will; alleged later will not revoking. - Testatrix drew up a valid holographic will without assistance, but later sought the aid of a friend in correcting its literary form. The friend testified that in the presence of testatrix and with her consent, she undertook to make certain alterations and deletions on the paper for the sole purpose of clarifying the document as to punctuation, grammar and phraseology, and that testatrix, insistent that she make her own will and not have it made for her, took the paper away with the intention of making a copy which would be wholly in her handwriting. The witness further related that testatrix had subsequently shown her a later will beginning with a clause of revocation, but this testimony was not convincing and a thorough search did not disclose any other testamentary paper of any kind. It was contended that the will was invalid, because not wholly in testatrix's handwriting, but that if it were valid, it had been revoked. There was no merit in either contention. It was clear that the changes in the will were made for one of two purposes, either to polish and clarify and make it intelligible, without changing its meaning, or as a basis to be used by testatrix in making a new will. If the first was the case, the will was not annulled for so unimportant a cause, and in the second event, it was preserved under the doctrine of dependent relative revocation. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55 (1950).

Effect of revocation of subsequent inconsistent will. - If a subsequent inconsistent will has been destroyed by the maker animo revocandi, then no conflict arises or can arise between it and a prior will, for wills are ambulatory and operate only upon and by reason of death. Thus wills which did not expressly revoke prior wills, and which were destroyed animo revocandi, never constituted wills under this section, and never revoked the earlier wills. Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144 (1958), overruling Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 (1921).

The burden of proving revocation of a will is upon the contestant. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136 (1974).

Burden of proof not carried. - Language used in letter merely stating that another document had revocative effect, the other document referred to not having been established, contestant did not bear the burden of proof required of him to show revocation. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136 (1974).

Sufficiency of evidence. - Evidence, that a subsequent will had been made, and afterwards stolen from the testator, without any proof of its contents, and proof of his declarations after the will was stolen that he would die intestate and leave his estate to be distributed according to the statute, was not sufficient evidence of a revocation of a former will. Hylton v. Hylton, 42 Va. (1 Gratt.) 161 (1844).

The effect of revocation by codicil of testamentary provision for one in a class, was not to create intestacy as to that share, but to take that devisee out of the class and leave the residuum to go to the other members of the class. Saunders v. Saunders, 109 Va. 191 , 63 S.E. 410 (1909).

Testamentary intent to revoke not found. - The language of the letter, while showing testator's desire that his daughters share equally in his estate, did not contain any evidence that he intended that letter to operate as his last will or as a codicil to his will. Rather, the evidence showed that testator characterized his will as "out of date" but believed that it would be effective. Under these facts, the court could not conclude that the April 1992 letter demonstrated the testamentary intent to revoke portions of the 1982 will and to substitute a different disposition of the testator's property. Wolfe v. Wolfe, 248 Va. 359 , 448 S.E.2d 408 (1994).

CIRCUIT COURT OPINIONS

Editor's note. .

The cases below were decided under former Title 64.1 and prior law.

Revocation by subsequent codicil. - Second codicil did not revoke an earlier holographic codicil where the second codicil did not expressly use the term "revocation," but simply amended a single article of the original will, where the second codicil specifically republished the will and the first codicil, subject to the modification set forth in the second codicil, and where the earlier holographic codicil was not so inconsistent with either the second codicil or the original will as to make the instruments incapable of standing together. Eubank v. Eubank, 68 Va. Cir. 33, 2005 Va. Cir. LEXIS 92 (Amherst County 2005).

Inconsistent codicil. - In distributing property under the decedent's will and four codicils, the court held that none of the codicils revoked the will, but with regard to intangible personal property, codicil four was inconsistent with the will and earlier codicils and therefore prevailed. In re Estate of Parsons, 65 Va. Cir. 295, 2004 Va. Cir. LEXIS 277 (Richmond 2004).

Gift found revoked. - Executor was instructed that: (1) a decedent revoked her testamentary gift to a residuary beneficiary by obliterating his name on her will with an opaque correction fluid, (2) the unrevoked portions of the will remained in effect, and (3) under subsection B of § 64.1-65.1 and to avoid a partial intestacy, the residue was to be divided proportionally between the remaining two residuary beneficiaries as: (i) the decedent devised the residue of her estate to two or more persons, (ii) nothing in the will suggested that the decedent had an intention contrary to the provisions of § 64.1-65.1, and (iii) it was settled law in Virginia that a gift that had been revoked was one that failed for any reason. Estate of Doughtie, 70 Va. Cir. 329, 2006 Va. Cir. LEXIS 48 (Roanoke 2006).

§ 64.2-411. Revival of wills after revocation.

Any will or codicil, or any part thereof that has been revoked pursuant to § 64.2-410 shall not be revived unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to the extent that the testator's intent to revive the will or codicil is shown.

(Code 1950, § 64-60; 1968, c. 656, § 64.1-60; 1985, c. 431; 2012, c. 614.)

Law review. - For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Destruction of subsequent inconsistent will containing no express revocation. - Wills were not revoked by subsequent inconsistent holographic writings, containing no express revocation of prior wills, where the subsequent writings, though testamentary in character, had been destroyed by testatrix animo revocandi. Such writings were ambulatory until death, and having been revoked prior to death they never constituted wills within the intent of that portion of former § 64.1-58 (see now § 64.1-58.1) which provides for revocation by subsequent will or codicil, and their execution did not revoke the earlier wills. Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144 (1958), overruling Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 (1921).

Section states common law as to revival by codicil. - This section merely adopted the settled rule at common law as to the revival of wills by codicil, and the concluding provision, that a revoked will shall be revived "only to the extent to which an intention to revive the same is shown," was merely meant to provide a statutory rule that a codicil shall not operate, proprio vigore, to revive a revoked will, where the intention so to do does not appear on the face of the will, or otherwise, either expressly or impliedly. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

Codicil must show testamentary intent. - A paper writing, which the testatrix referred to as a codicil to a prior will, but which made no disposition of property, and directed no act of a testamentary nature, did not operate to revive the prior will to which it referred. Delly v. Seaboard Citizens Nat'l Bank, 202 Va. 764 , 120 S.E.2d 457 (1961).

Republication implied from codicil referring to will. - Where the testator in a codicil refers to a will and gives sufficient demonstration that when making the codicil he considered the will as his will, a republication of the will may be implied. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922); Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 (1934).

Will revoked by birth of children revived by codicil. - A will revoked by the birth of children was revived under this section by a codicil admitted to be of such nature as to have effected revival prior to the enactment of this section. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

Due execution is required. - In order that a codicil may establish a will not duly executed and be a republication thereof, its execution must be such as would have sufficed for the will, if the will had been so executed. See examples in this case. Gibson v. Gibson, 69 Va. (28 Gratt.) 44 (1877).

No particular words are necessary to be used in a codicil to effect a republication of the will to which it is annexed. It is only necessary that it shall appear that the testator referred to and considered the paper as his will at the time he executed the codicil; where this so appears, even though the codicil refers to personal property only, it may operate as a republication, as to realty, even so as to pass after-acquired lands. Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880).

Codicil need not show knowledge by testator of revocation of will. - It is not necessary to a revival of a revoked will by a codicil thereto that the codicil should show that the testator knew that his will had been revoked. The essential thing to be shown by the codicil is that, as expressed therein or to be implied therefrom, the codicil conveys the meaning that the will still expresses the testamentary intention of the testator as of the time of the execution of the codicil, and to what extent the will still expresses that intention, whether to the extent of the whole will, and, if not, to what extent. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

Or intention that writing operate as codicil. - The fact that a testator did not intend the language used in a codicil reviving a will revoked by the birth of children to operate as a codicil is immaterial. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

Statement on Masonic form held to revive will. - A statement, made on a Masonic form, duly signed and witnessed, that signer had made a will in his wife's favor, was a sufficient codicil to revive that will under this section, when it had been made inoperative under § 64.1-70 by subsequent birth of children. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922).

A revived will speaks as of the date of the codicil. Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880); Hatcher v. Hatcher, 80 Va. 169 (1885).

And the law in force when the codicil was executed governs. Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880).

§ 64.2-412. Revocation by divorce or annulment; revival upon remarriage; no revocation by other change.

  1. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701 .
  2. If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Unless the will expressly provides otherwise, any provision conferring a general or special power of appointment on the former spouse or nominating the former spouse as executor, trustee, conservator, or guardian is also revoked.
  3. Property prevented from passing to a former spouse because of revocation pursuant to subsection B shall pass as if the former spouse failed to survive the testator. Provisions of a will conferring a power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator.
  4. Unless the trust instrument expressly provides otherwise, if a settlor creates a revocable trust and if, after such creation:
    1. The settlor is divorced from the bond of matrimony or the settlor's marriage is annulled and the trust was revocable immediately before the divorce or annulment, then a provision of such revocable trust transferring property to or conferring any beneficial interest on the settlor's former spouse is revoked upon the divorce or the annulment of the settlor's marriage, and such property or beneficial interest shall be administered as if the former spouse failed to survive the divorce or annulment; or
    2. An action is filed (i) for the divorce or annulment of the settlor's marriage to the settlor's spouse or for their legal separation or (ii) by either the settlor or the settlor's spouse for separate maintenance from the other, and the trust was revocable at the time of the filing, then a provision of such revocable trust conferring a power, including a power of appointment, on the spouse or nominating or appointing the spouse as a fiduciary, including trustee, trust director, conservator, or guardian, is revoked upon the filing, and such provision shall be interpreted as if the former spouse failed to survive the filing.
  5. If the provisions of the will or revocable trust instrument are revoked solely pursuant to this section, and there is no subsequent will, trust revocation, other than under this section, or inconsistent codicil or amendment, the provisions shall be revived upon the testator's or settlor's remarriage to the former spouse. Nothing in this section shall prevent a testator or settlor from transferring property to, conferring any beneficial interest on, conferring a power on, or nominating or appointing as a fiduciary a spouse or former spouse subsequent to a revocation under this section.
  6. Except as provided in this section, no change of circumstances shall be deemed to revoke a will or trust instrument.
  7. This section applies to trusts and trust provisions only to the extent the event causing the revocation under subsection D occurs on or after July 1, 2018.

    (1968, c. 656, § 64.1-59; 1985, c. 429; 2012, c. 614; 2018, c. 44.)

The 2018 amendments. - The 2018 amendment by c. 44, added subsections A, D, and G, and redesignated remaining subsections accordingly; in subsection C, substituted "subsection B" for "this section"; in subsection E, inserted "or revocable trust instrument," "trust revocation, other than under this section," "or amendment," and "or settlor's" in the first sentence and added the second sentence; and in subsection F, added "or trust instrument" at the end.

Law review. - For survey of Virginia law on trusts and estates for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976); for the year 1978-1979, see 66 Va. L. Rev. 375 (1980). For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Public policy. - It is a statutory declaration of public policy concerning wills of divorced testators, which provides without condition, reservation or qualification that a divorced spouse is to be denied any benefits under a will executed prior to divorce. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153 (1976).

The obvious purpose of this section was to incorporate into statute the presumed intent of a testator that any provision in his will for the benefit of his spouse be terminated in the event of their divorce. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153 (1976).

This section shifts to the testator the burden of taking affirmative action to reverse the intent implicit in the law. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153 (1976).

This section applies to wills executed and divorces obtained before, as well as after, the effective date of the statute. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153 (1976).

How property passes after revocation under section. - Property devised to a former spouse, which is prevented from passing because of statutory revocation, shall pass as if the former spouse failed to survive the decedent unless a contrary intention is apparent from the provisions of the will. Jones v. Brown, 219 Va. 599 , 248 S.E.2d 812 (1978).

Where the applicable provisions of a will manifested a clear intent on the part of the testator to first prefer his wife, but, after her, to prefer his first heir at law to the exclusion of the other heirs at law, and divorce revoked the devise to the former wife just as surely as if she had died, it was proper to construe the will so that the first heir took the entire estate under the will as though the testator's former wife predeceased him, since such a construction not only would carry out the testator's clear intent, but would avoid intestacy, which is not favored in the law. Jones v. Brown, 219 Va. 599 , 248 S.E.2d 812 (1978).

CIRCUIT COURT OPINIONS

Designation of beneficiary. - Where a state employee had designated an ex-wife as beneficiary of any accumulated retirement contributions and because the parties' divorce was prior to July 1, 1993, §§ 20-111.1 , 64.1-16.2 c, and 64.1-59 did not apply; as a result, the designation in favor of the ex-wife was not revoked when the parties were divorced. Va. Ret. Sys. v. Bonaparte, 61 Va. Cir. 304, 2003 Va. Cir. LEXIS 129 (Richmond 2003) (decided under prior law).

§ 64.2-413. Effect of subsequent conveyance on will.

Except for an act that results in the revocation of a will pursuant to this article, any conveyance or other act done subsequent to the execution of a will shall not prevent the operation of the will with respect to such interest in the estate as the testator may have power to dispose of by will at the time of his death.

(Code 1950, § 64-61; 1968, c. 656, § 64.1-61; 2012, c. 614.)

CASE NOTES

Will is inoperative as to property parted with in testator's lifetime. - It is competent for a testator during his life to revoke any part of his will, and a will is inoperative as to such property as was parted with by testator in his lifetime. Collup v. Smith, 89 Va. 258 , 15 S.E. 584 (1892) (decided under prior law).

Effect of conditional contract where condition fulfilled after death. - Where the decedent devised an interest in real estate by will, and subsequently entered into conditional contracts to convey the land, the doctrine of equitable conversion will not be applied to adeem the devise where the condition is fulfilled after the death of the decedent. Therefore, proceeds from the sale devolve upon the devisees, not upon the residuary legatees. Bauserman v. DiGiulian, 224 Va. 414 , 297 S.E.2d 671 (1982)(decided under prior law).

Article 3. Construction and Effect.

§ 64.2-414. When wills deemed to speak.

  1. A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.
  2. Every will reexecuted or republished, or revived by any codicil, shall be deemed to have been made at the time it was reexecuted, republished, or revived.

    (Code 1950, §§ 64-62, 64-71; 1968, c. 656, §§ 64.1-62, 64.1-72; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1970-1971, see 57 Va. L. Rev. 1494 (1971).

Research References. - Virginia Forms (Matthew Bender). No. 5-1301 Complaint to Construe a Will, et seq.; No. 15-107 Codicil.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Ordinarily, wills speak as of the date of the death, etc., of the testator and are to be examined from every angle. Murchison v. Wallace, 156 Va. 728 , 159 S.E. 106 (1931).

Consistent with § 64.1-62, requiring that wills be construed as if the testator died immediately before death, unless the will showed a contrary intent, inter vivos trusts were to be construed according to the law in effect at the time the trust was executed, absent language showing a contrary intent, as such a rule recognized that the interests of trust beneficiaries accrued when the trust was executed and protected those interests, and such a rule was compelled by § 1-16 [see now § 1-239 ], mandating that no new law should be construed in any way whatever to affect any right accrued, or claim arising before the new law took effect. McGehee v. Edwards, 268 Va. 15 , 597 S.E.2d 99 (2004).

But question is one of intention. - When a will may be construed to speak and take effect is a question of intention, in a qualified sense. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21 (1872).

Where the language of testatrix's will showed her intention to give to the legatees of certain corporate stock the proportionate interest she had in the corporations at the time of the execution of her will, thereby making the legacies specific, this showed testatrix's intent to have her will speak as of the date of its execution, which made inapplicable the statutory rule of construction that a will ordinarily speaks as of the date of death. Thus, additional shares the testatrix received as a result of stock splits passed to such legatees. Warner v. Baylor, 204 Va. 867 , 134 S.E.2d 263 (1964).

Will intended to take effect immediately. - A clause in a will of a husband giving to his wife the power to make a will of his property must have been intended to take effect from its date; and so the will of the wife as an execution of the power will be intended to take effect from its date, though not to divest and pass the title in the lifetime of her husband and herself. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21 (1872).

This section is declaratory of the common-law rule as to personalty but changes it as to realty. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 (1897).

It puts realty and personalty on same footing. - The obvious effect of this section was to make wills speak with respect to real estate, as they had done under the common law with respect to personal estate, as of the death of the testator, thus sweeping away the distinction which had theretofore been held to exist with respect to bequests of personalty and devises of real estate. Kent v. Kent, 106 Va. 199 , 55 S.E. 564 (1906).

As to void or lapsed devises or legacies. - The effect of this section is to put real estate and personal property on the same footing as to void or lapsed devises or legacies. Kent v. Kent, 106 Va. 199 , 55 S.E. 564 (1906).

Legacy to dead legatee does not fail. - A legacy bequeathed to a legatee who was dead at the time the will was written does not lapse or become void, but, under the provisions of this section and former § 64.1-64, passes to the issue of the legatee who survives the testator, unless a different disposition thereof is made or required by the will. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 (1897).

Will passes after-acquired property. - The will of a married woman, though made in her husband's lifetime, disposing of all her estate, passes that acquired from her husband under his will, he dying first. The will speaks as of the time of her death, and there is always a strong presumption for complete testacy. Bowe v. Bowe, 118 Va. 28 , 86 S.E. 856 (1915).

CIRCUIT COURT OPINIONS

Change in status of beneficiary. - Where a hospital, a beneficiary of a charitable testamentary trust, had been at the time the testator executed his will an acute general care hospital that did not bill its patients, and before his death became a physical rehabilitation hospital that billed patients but also provided free or reduced-cost treatment to the indigent, the trustee's claim that its changed character disqualified it from receiving trust money failed, as: (1) The will spoke as of the testator's death, not the date he signed the will; and (2) The hospital continued to serve indigent patients, which was the purpose the trust fund was intended to support. Mattox v. Annabella R. Jenkins Found., 61 Va. Cir. 492, 2003 Va. Cir. LEXIS 124 (Richmond 2003) (decided under prior law).

§ 64.2-415. How certain trust provisions, bequests, and devises to be construed; nonademption in certain cases.

  1. As used in this section: "Incapacitated" means impairment by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions. "Revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701 .
  2. Unless a contrary intention appears in the will or trust instrument:
    1. A bequest or trust provision requiring distribution by reason of the settlor's death of specific securities, whether or not expressed in number of shares, shall include as much of the securities as is part of the estate or is or becomes part of the trust by reason of the testator's or settlor's death, any additional or other securities of the same entity owned by the testator or trustee by reason of action initiated by the entity, excluding any securities acquired by the exercise of purchase options, and any securities of another entity acquired with respect to the specific securities mentioned in the bequest or trust provision as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;
    2. A bequest, devise, or trust provision requiring distribution by reason of the settlor's death of specific property shall include the amount of any condemnation award for the taking of the property that remains unpaid at death and any proceeds unpaid at death on fire and casualty insurance on the property; and
    3. A bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is under a disability, was sold by a conservator, guardian, or committee for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the conservator, guardian, or committee for the testator. For purposes of this subdivision, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision 2. This subdivision shall not apply if, after the sale or casualty, it is adjudicated that the disability of the testator had ceased and the testator survived the adjudication by one year.
  3. Unless a contrary intention appears in a testator's will or durable power of attorney, a bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is incapacitated, was sold by an agent acting within the authority of a durable power of attorney for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the agent. For purposes of this subsection, (i) the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2, (ii) no adjudication of the testator's incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator. This subsection shall not apply (a) if the agent's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the testator or (b) to a power of attorney limited to one or more specific purposes.
  4. Unless a contrary intention appears in the will, a devise that would describe a leasehold estate, if the testator had no freehold estate that could be described by the devise, shall be construed to include such a leasehold estate.
  5. Unless a contrary intention appears in the trust instrument, a provision requiring distribution of specific property by reason of the death of the settlor shall, in addition to such property that is or becomes part of the trust by reason of the settlor's death, be deemed to be a distribution of a pecuniary amount if, while the settlor was incapacitated, (i) such specific property was sold by the trustee or (ii) the proceeds of fire or casualty insurance as to such property were paid to the trustee. For purposes of this subsection, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2. For purposes of this subsection, no adjudication of the settlor's incapacity before death is necessary. This subsection shall not apply if the trustee's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the settlor.
  6. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the distribution occurs by reason of the settlor's death and is of property that is or becomes part of the trust by reason of the settlor's death.

    (Code 1950, § 64-66; 1968, c. 656, § 64.1-66; 1985, c. 429, § 64.1-62.3; 1995, c. 381; 2012, cc. 476, 507, 614; 2018, c. 44.)

Editor's note. - Acts 2012, cc. 476 and 507 amended former § 64.1-62.3, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 476 and 507 have been given effect in this section by substituting "intellectual disability" for "mental deficiency" in subsection A.

The 2018 amendments. - The 2018 amendment by c. 44, in subsection A, added the definition for "Revocable"; rewrote subdivisions B 1 and 2; and added subsections E and F.

Law review. - For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 18 Property Disposed Of. § 18.19 "Stocks." Cox.

Virginia Forms (Matthew Bender). No. 15-214 Disposition of Tangible Personal Property, et seq.

§ 64.2-416. Devises, bequests, and distributions that fail; how to pass.

  1. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701 .
  2. Unless a contrary intention appears in the will or trust instrument, and except as provided in § 64.2-418 :
    1. If a devise, bequest, or distribution other than a residuary devise, bequest, or distribution fails for any reason, it shall become a part of the residue; and
    2. If the residue is devised, bequeathed, or otherwise required to be distributed to two or more persons and the share of one fails for any reason, such share shall pass to the other residuary devisees, legatees, or beneficiaries in proportion to their interests in the residue.
  3. Notwithstanding the provisions of §§ 64.2-2604 and 64.2-2605 and unless a contrary intention appears in the will, if a testator makes a bequest, not exceeding the value of $100, to a legatee and such legatee refuses to take possession of such bequest, then the bequest shall fail and becomes a part of the residue of the testator's estate.
  4. Subsection B applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the devise, bequest, or distribution occurs by reason of the settlor's death.

    (1985, c. 592, § 64.1-65.1; 2003, c. 253; 2012, c. 614; 2014, c. 532; 2018, c. 44.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection B, substituted "$100" for "$25."

The 2018 amendments. - The 2018 amendment by c. 44, added subsections A and D, redesignated former subsections A and B as B and C; in subdivision B 1, inserted "or distribution" following "bequest" twice; and in subdivision B 2, inserted "or otherwise required to be distributed" and "or beneficiaries."

Law review. - For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

CASE NOTES

Section puts devises on same footing as legacies of personalty. - At common law, a general residue of personal property comprehends everything not otherwise effectually disposed of by the will, and since the revisal of 1849 we have had a statute in Virginia which puts devises of real estate on the same footing in this particular with legacies of personalty. Gallagher v. Rowan, 86 Va. 823 , 11 S.E. 121 (1890) (decided under prior law). See Stonestreet v. Doyle, 75 Va. 356 (1881) (decided under prior law).

Determination that life tenant's interest in residuary estate failed and passed to the residuary devisees under this section ignored the early vesting rule which provides that unless the intention to postpone vesting is clearly indicated in the will, all devises and bequests are to be construed as vesting at testator's death. Therefore, a life tenant may own a remainder in testator's residuary estate. Coleman v. Coleman, 256 Va. 64 , 500 S.E.2d 507 (1998)(decided under prior law).

CIRCUIT COURT OPINIONS

Void gift. - When gifts in a clause were made to a "boy" and "others who may render future service," the gifts were void for uncertainty and the shares were to pass to other residuary legatees. Freeman v. Anderson, 55 Va. Cir. 353, 2001 Va. Cir. LEXIS 297 (Richmond 2001)(decided under prior law).

Revoked gift. - Executor was instructed that: (1) a decedent revoked her testamentary gift to a residuary beneficiary by obliterating his name on her will with an opaque correction fluid, (2) the unrevoked portions of the will remained in effect, and (3) under subsection B of this section and to avoid a partial intestacy, the residue was to be divided proportionally between the remaining two residuary beneficiaries as: (i) the decedent devised the residue of her estate to two or more persons, (ii) nothing in the will suggested that the decedent had an intention contrary to the provisions of § 64.1-65.1, and (iii) it was settled law in Virginia that a gift that had been revoked was one that failed for any reason. Estate of Doughtie, 70 Va. Cir. 329, 2006 Va. Cir. LEXIS 48 (Roanoke 2006)(decided under prior law).

Residuary estate. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-417. When advancement deemed satisfaction of devise or bequest.

Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.

(Code 1950, § 64-63; 1968, c. 656, § 64.1-63; 1985, c. 432, § 64.1-63.1; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

Editor's note. - The cases annotated below were decided under former law, prior to the enactment of this section.

CASE NOTES

For the history of this section, see Harrison v. Harrison, 171 Va. 224 , 198 S.E. 902 (1938).

The doctrine of hotchpot has been enlarged by this section to apply in certain circumstances to any person, although advancements, properly speaking, are gifts by anticipation from a parent to a child. Garrett v. Andis, 159 Va. 150 , 165 S.E. 657 (1932).

A conveyance to a legatee is presumed to be in satisfaction of the legacy. Harrison v. Harrison, 171 Va. 224 , 198 S.E. 902 (1938).

But rule does not apply to gift made before will. - Where the gift is given before the making of the will, and the will does not charge it as an advancement, the court cannot so charge it in settling the estate. Strother v. Mitchell, 80 Va. 149 (1885).

And presumption is rebuttable. - The presumption that a subsequent conveyance to a legatee was intended to satisfy the legacy is, under the express terms of this section, liable to be repelled by circumstantial evidence. Harrison v. Harrison, 171 Va. 224 , 198 S.E. 902 (1938).

When a legacy is given to a child, and afterwards an advancement is made to that child, the advancement is taken as a satisfaction of the legacy; but this presumption may be rebutted by evidence. Strother v. Mitchell, 80 Va. 149 (1885).

§ 64.2-418. When children or descendants of beneficiary to take estate or trust.

  1. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701 .
  2. Unless a contrary intention appears in the will or trust instrument, if a beneficiary, including a beneficiary under a class gift, is (i) a grandparent or a descendant of a grandparent of the testator or settlor and (ii) dead at the time of execution of the will or trust instrument or dead at the time of the testator's or settlor's death, the descendants of the deceased beneficiary who survive the testator or settlor take in the place of the deceased beneficiary. The portion of the testator's estate or the trust that the deceased beneficiary was to take shall be divided into as many equal shares as there are (a) surviving descendants in the closest degree of kinship to the deceased beneficiary and (b) deceased descendants, if any, in the same degree of kinship to the deceased beneficiary who left descendants surviving at the time of the testator's or settlor's death. One share shall pass to each such surviving descendant and one share shall pass per stirpes to such descendants of deceased descendants.
  3. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the beneficiary would have taken by reason of the settlor's death if the beneficiary survived the settlor.

    (1985, c. 592, § 64.1-64.1; 2012, c. 614; 2018, c. 44.)

The 2018 amendments. - The 2018 amendment by c. 44, added subsections A and C, and rewrote subsection B.

Law review. - For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978). For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981); for the year 1985, see 19 U. Rich. L. Rev. 779 (1985).

For note, "Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection," see 36 Wm. & Mary L. Rev. 269 (1994).

For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

Editor's note. - Most of the cases annotated below were decided under former law.

CASE NOTES

This section made a sweeping change from the common-law doctrine of lapsed or void legacies, declaring what the law should be in the future in no uncertain language, and our courts cannot make exceptions and uphold distinctions where the plain letter of the law recognizes none. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 (1897).

The general doctrine, at common law, is that a devise lapses in all cases where the devisee dies before the testator. And if the devise be to several, as tenants in common, and one of them dies in the testator's lifetime, his share lapses. In Virginia the only modification of the doctrine is found in this section. Gardner v. Gardner, 152 Va. 677 , 148 S.E. 781 (1929).

It is to be liberally construed. - This section is in furtherance of what may fairly be presumed to have been the intention of the testator, and, in order to effect its object, it should be construed liberally. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 (1938).

It is not for the benefit of the dead legatee, but is intended to safeguard the interests of those who take under such legatee. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 (1938).

The issue of a deceased legatee takes as substituted legatees of the deceased ancestor just as if their names had been inserted in the will by the testator himself. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 (1938).

The word "estate" covers every property of every kind which the decedent might have had. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 (1938).

This section takes no account of precedent events, other than the death of the devisee or legatee, and does not restrict its operation to cases only in which the death of the devisee or legatee occurs after the execution of the will and before the death of the testator. The only conditions it imposes are: The devisee or legatee must have died before the testator, leaving issue who survive the testator. It does not impose the condition that the devisee or legatee shall be "in esse" at the date of the will, but the policy of the law is plainly disclosed, viz.: to uphold and give effect to a devise or legacy rather than to allow it to fail for the want of a person "in esse" to take it. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 (1897).

Legacy to one dead when will written does not lapse. - A legacy bequeathed to a legatee who was dead at the time the will was written does not lapse or become void, but, under the provisions of this section and § 64.1-62 passes to the issue of the legatee who survives the testator, unless a different disposition thereof is made or required by the will. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 (1897).

This section cannot enlarge a power of appointment. - It was contended that although the donee of a power was restricted in her selection to the nieces and nephews of her husband, yet this section enabled her to do indirectly what she could not do directly, i.e., select from the class deceased members to be the beneficiaries, and by the provisions of § 64.1-45 and this section the issue of such deceased parties would be entitled to the property. It was held that this section did not enlarge the power of appointment, and it was error to hold that a grandniece was entitled to one third of the real estate as issue of her father. Daniel v. Brown, 156 Va. 563 , 159 S.E. 209 (1931).

Appointment under a power, made by will, lapses by the appointee's death in the testator's lifetime. Burruss v. Nelson, 132 Va. 17 , 110 S.E. 254 (1922).

Unless power is general and appointee leaves issue. - If a power had been general in the donee to select the objects of the bounty and the donee of the power had exercised her discretion and the devisees named by her had died prior to her death, then this section would have prevented the lapse of such devises, in favor of the issue. Daniel v. Brown, 156 Va. 563 , 159 S.E. 209 (1931).

CIRCUIT COURT OPINIONS

Testatrix intended to dispose of lapsed devise by will. - Will read as a whole and interpreted under the presumption against intestacy showed that a testatrix intended to avoid the operation of this section and to dispose of her entire estate through her will rather than through intestacy; she therefore intended for a share of her residual estate left in trust for a son who predeceased her to be distributed among the other residuary beneficiaries, rather than through intestacy, even though the will did not provide for disposition of his share if he died before she did. Stroup v. Stroup, 70 Va. Cir. 454, 2004 Va. Cir. LEXIS 378 (Alexandria 2004) (decided under prior law).

§ 64.2-419. Provision for omitted children when no child living when will made.

  1. If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator's will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to such portion of the testator's estate as he would have been entitled to if the testator had died intestate.
  2. The devisees and legatees shall contribute ratably to the portion of the testator's estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

    (Code 1950, § 64-69; 1968, c. 656, § 64.1-70; 1972, c. 825; 2012, c. 614.)

Law review. - For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978). For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981).

CASE NOTES

For the early history of this section, see Wood v. Tredway, 111 Va. 526 , 69 S.E. 445 (1910)(decided under prior law).

§ 64.2-420. Provision for omitted children when child living when will made.

  1. If a testator executes a will that makes provision for a living child of the testator, a child born or adopted after execution of a testator's will who is neither provided for nor expressly excluded by the will is entitled to the lesser of (i) such portion of the testator's estate as the afterborn or after-adopted child would have been entitled to if the testator had died intestate or (ii) the equivalent in amount to any bequests and devises to any child named in the will, and if there are bequests or devises to more than one child, then to the largest aggregate bequest or devise to any child.
  2. The devisees and legatees of the testator's will shall contribute ratably to the portion of the testator's estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

    (Code 1950, § 64-70; 1960, c. 527; 1968, c. 656, § 64.1-71; 1972, c. 825; 1978, c. 647; 2012, c. 614.)

Law review. - For article, "Inheritance Rights of Children in Virginia," see 12 U. Rich. L. Rev. 275 (1978). For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981).

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

The act, on which this section is based, was enacted in 1794 and was held not to be retroactive. Savage v. Mears, 41 Va. (2 Rob.) 570 (1843).

Portion of pretermitted child is raised by proportionate contribution. - The portion of a posthumous child is not to be raised by a division of the estate into equal parts, but by a proportionate contribution by the devisees and legatees and those claiming under them. Armistead v. Dangerfield, 17 Va. (3 Munf.) 20 (1812).

Purchasers from the devisees and legatees are not exempted from contributing to make up the portion of a posthumous child by their having purchased without notice of the claim. Armistead v. Dangerfield, 17 Va. (3 Munf.) 20 (1812).

Any provision for a child which shows that he has not been forgotten is sufficient to prevent the application of this section. Allison v. Allison, 101 Va. 537 , 44 S.E. 904 (1903).

A devise in general terms, to the testator's "children" does not comprehend a posthumous child, so as to prevent it from claiming, under this section, as pretermitted by the will. Armistead v. Dangerfield, 17 Va. (3 Munf.) 20 (1812).

§ 64.2-421. Construction of certain conditions of spouse's survivorship.

  1. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will or trust that provides that the spouse of the decedent shall survive until the distribution of the gift, the will or trust shall be construed as requiring that the spouse survive until the earlier of the date on which the distribution occurs or the date six months after the date of the death of the testator or decedent, unless the court shall find that the decedent intended a contrary result.
  2. The proceeding to determine whether the decedent intended that the spouse actually survive until the distribution of the gift shall be filed within 12 months following the death of the decedent. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

    (1997, c. 263, § 64.1-66.2; 2012, c. 614.)

§ 64.2-422. When omitted spouse to take intestate portion.

If a testator fails to provide by will for a surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate such spouse would have received if the decedent left no will, unless it appears from the will or from the provisions of a valid premarital or marital agreement that the omission was intentional.

(1985, c. 430, § 64.1-69.1; 1991, c. 441; 2012, c. 614.)

Law review. - For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).

§ 64.2-423.

Repealed by Acts 2016, c. 266, cl. 2.

Editor's note. - Former § 64.2-423 , pertaining to exercise of power of appointment, derived from Acts 1985, c. 429, § 64.1-67.1; 2012, c. 614.

§ 64.2-424. When direction to purchase annuity binding on legatee.

If a testator directs in his will that an annuity sufficient to provide income of at least $100 per month be purchased for a legatee, the legatee who is to receive the income from the annuity shall not have the right to instead take the sum directed to be used to purchase such annuity, except to the extent that the will expressly provides for such right or that an assignable annuity be purchased.

(Code 1950, § 64-68.1; 1956, c. 448; 1968, c. 656, § 64.1-69; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$100" for "$10."

Michie's Jurisprudence. - For related discussion, see 1B M.J. Annuities, § 8.

§ 64.2-425. Interest on pecuniary legacies.

  1. Unless a contrary intent is expressed in or to be implied from a will or trust: (i) interest on a pecuniary legacy begins to run at the expiration of one year after the date of the death of the testator and (ii) interest on a pecuniary amount from a trust begins to run at the expiration of one year after the date on which the beneficiary is entitled to receive the pecuniary amount.
  2. For the purposes of this section, a marital formula pecuniary bequest either outright to the testator's spouse or in trust for the benefit of such spouse, designed in either case to qualify for the benefit of the marital deduction allowed by the Internal Revenue Code, shall not be considered a pecuniary legacy entitled to interest at the expiration of one year after the death of the testator but, instead, shall share ratably with the residue of the estate in the income earned by the estate during the period of administration, unless a contrary intent is expressed in the will.

    (Code 1950, § 64-68; 1968, c. 656, § 64.1-68; 1999, c. 975; 2012, c. 614.)

§ 64.2-426. Testamentary additions to trusts by testator dying on or after July 1, 1994, and before July 1, 1999.

  1. A devise or bequest, including the exercise of a power of appointment, may be made by a will to the trustees of an inter vivos trust or testamentary trust, whether the trust was established by the testator, by the testator and another, or by some other person if:
    1. In the case of an inter vivos trust, the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator's will; or
    2. In the case of a testamentary trust, the trust is identified in the testator's will and its terms are set forth in the valid last will of a person who has predeceased the testator and whose will was executed before or concurrently with the execution of the testator's will. In either event, at the time the devise or bequest is to be distributed to the trustees at least one trustee of the trust shall be (i) an individual or (ii) an entity authorized to do a trust business in the Commonwealth. However, prior to distribution of the devise or bequest to the trustees, each nonresident individual or entity shall file with the clerk of the circuit court of the jurisdiction wherein the testator's will was admitted to probate, a consent in writing that service of process in any action against him as trustee or any other notice with respect to administration of the trust in his charge, may be by service upon the clerk of the court in which he is qualified or upon a resident of the Commonwealth at such address as he may appoint in the written instrument filed with the clerk. Where any nonresident qualifies pursuant to this subsection, bond with surety shall be required in every case unless at least one other trustee is a resident or the court in which the nonresident qualifies waives surety under the provisions of § 64.2-1411 . An entity not authorized to do a trust business in the Commonwealth at the time the devise or bequest is to be distributed shall not, in any case, be a trustee of such trust.
  2. The inter vivos trust may be an unfunded trust, and for the purposes of this section:
    1. An inter vivos trust shall be deemed established upon execution of the instrument creating such trust; and
    2. An inter vivos trust may contain provisions whereby the amount of corpus to be allocated to any particular portion of the trust will be determined, measured, or affected by the adjusted gross estate of the settlor or testator for federal estate tax purposes, by the amount of the marital deduction allowable to the settlor's or testator's estate, by the amount of deductions or credits available to the estate of the settlor or testator for federal estate tax purposes, by the value of such estate for federal estate tax purposes, or by any other method, and that an unfunded trust shall not be deemed to be testamentary for that reason.
  3. The devise or bequest shall not be invalid because (i) the trust is amendable or revocable or both by the settlor or any other person, either prior or subsequent to the testator's death, (ii) the trust instrument or any amendment thereto was not executed in the manner required for wills, or (iii) the trust was amended after the execution of the will or after the death of the testator.
  4. Unless the testator's will provides otherwise, the property so devised or bequeathed:
    1. Shall not be deemed held under a testamentary trust of the testator, but shall become a part of the corpus of the trust to which it is given or, if the will so specifies, the property shall become a part of any one or more particular portions of the corpus; and
    2. Shall be administered and disposed of (i) in accordance with the terms of the trust as they appear in writing at the testator's death, including any amendments thereto made before the death of the testator, regardless of whether made before or after the execution of the testator's will, or (ii) if the testator expressly specifies in his will, as such terms are amended after the death of the testator.
  5. In the event that the settlor or other person having the right to do so revokes or otherwise terminates the trust pursuant to a power to do so reserved in the trust instrument, and such revocation or termination is effected at a date subsequent to the death of a testator who has devised or bequeathed property to such trust, the revocation or termination shall be ineffective as to property devised or bequeathed to such trust by a testator other than the settlor, unless the testator's will expressly provides to the contrary.
  6. The devise or bequest shall not be valid should the entire trust not be operative for any reason at the testator's death. If the devise or bequest is to augment only one or more portions of the trust, the devise or bequest shall not be valid should the trust not be operative for any reason as to such portion at the testator's death.
  7. In any case in which the devise or bequest to the trustee of a trust fails to take effect by reason of the fact that there is no qualified trustee acting at the time the devise or bequest is to be distributed, or that one or more of the trustees then acting is an entity not authorized to do a trust business in the Commonwealth, the court having jurisdiction with respect to the probate of the will or the administration of the testator's estate, upon sufficient evidence of the existence of a trust estate for administration, independent of the testator's estate, and of the validity of the trust established by virtue of such separate written instrument, may determine that the trusts declared by such separate written instrument are the trusts upon which the devise or bequest is made to the same extent and with like effect as if such trust provisions had been extensively incorporated in the testamentary documents, and that such trusts do not fail for want of a qualified trustee to administer the trust estate so devised or bequeathed. The court may then grant such further and ancillary relief as the nature of the case may require, including the appointment of a qualified trustee to perform the trusts with respect to the estate so devised or bequeathed, and granting instruction and guidance to the trustee so appointed in the performance of his duties. Nothing herein shall be deemed to authorize any such trustee to be excused from any obligations of accounting or performance as are required by law of fiduciaries, nor to prevent the transfer of the trust estate to a trustee appointed by or qualified in a court of record in a foreign state in accordance with the provisions of § 64.2-706 .
  8. This section shall apply to any devise or bequest under the will of a decedent dying on or after July 1, 1994, and before July 1, 1999.

    (Code 1950, § 64-71.1; 1958, c. 450; 1962, c. 573; 1966, c. 538; 1968, c. 656, § 64.1-73; 1972, c. 332; 1982, c. 373; 1991, c. 343; 1992, c. 66; 1994, c. 562; 1995, c. 684; 1996, c. 680; 1999, c. 252; 2005, c. 935; 2012, c. 614.)

Law review. - For survey on Virginia law on wills, trusts and estates for the year 1971-1972, see 58 Va. L. Rev. 1363 (1972); for the year 1979-1980, see 67 Va. L. Rev. 369 (1981).

For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).

For 1994 survey of Virginia wills, trusts, and estates law, see 28 U. Rich. L. Rev. 1145 (1994).

For an article, "Wills, Trusts, and Estates," see 31 U. Rich. L. Rev. 1249 (1997).

§ 64.2-427. Testamentary additions to trusts by testator dying after June 30, 1999.

  1. A will may validly devise or bequeath property, including by the exercise of a power of appointment, to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts or (ii) at the testator's death by the testator's devise or bequest to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.
  2. Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection A is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.
  3. Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.
  4. Unless at least one trustee of the trust is an individual resident of the Commonwealth or an entity authorized to do a trust business in the Commonwealth, at the time the devise or bequest is to be distributed to the trust, the testator's personal representative shall not make any distribution to the trust until each nonresident individual or entity files with the clerk of the circuit court of the jurisdiction wherein the testator's will was admitted to probate, a consent in writing that service of process in any action against the trustee or any other notice with respect to administration of the trust in the trustee's charge 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. No further requirement shall be imposed upon any nonresident individual or entity as a condition to receiving the devise or bequest.
  5. This section applies to a will of a testator who dies after June 30, 1999, and it shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.

    (1999, c. 252, § 64.1-73.1; 2012, c. 614.)

Law review. - For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

§ 64.2-428. Distribution of assets by fiduciaries in satisfaction of pecuniary bequests or transfers in trust of pecuniary amount.

  1. Where a will or trust agreement authorizes or directs the fiduciary to satisfy wholly or partly in kind a pecuniary bequest or transfer in trust of a pecuniary amount, unless the instrument shall otherwise expressly provide, the assets selected by the fiduciary for that purpose shall be valued at their respective values on the date of their distribution.
  2. Whenever a fiduciary under the provisions of a will or other governing instrument is required to satisfy a pecuniary bequest or transfer in trust in favor of the testator's or donor's spouse and is authorized to satisfy such bequest or transfer by selection and distribution of assets in kind, and the will or other governing instrument further provides that the assets to be so distributed shall or may be valued by some standard other than their fair market value on the date of distribution, the fiduciary, unless the will or other governing instrument otherwise specifically directs, shall distribute assets, including cash, in a manner that is fairly representative of appreciation or depreciation in the value of all property available for distribution in satisfaction of such pecuniary bequest or transfer. This subsection shall not prevent a fiduciary from carrying out the provisions of the will or other governing instrument that require the fiduciary, in order to implement such a bequest or transfer, to distribute assets, including cash, having an aggregate fair market value at the date of distribution amounting to no less than the amount of the pecuniary bequest or transfer as finally determined for federal estate tax purposes.
  3. Any fiduciary having discretionary powers under a will or other governing instrument with respect to the selection of assets to be distributed in satisfaction of a pecuniary bequest or transfer in trust in favor of the testator's or donor's spouse shall be authorized to enter into agreements with the Commissioner of Internal Revenue of the U.S. Department of the Treasury and other taxing authorities requiring the fiduciary to exercise the fiduciary's discretion so that cash and other properties distributed in satisfaction of such bequest or transfer in trust will be fairly representative of the appreciation or depreciation in value of all property then available for distribution in satisfaction of such bequest or transfer in trust, and any such agreement heretofore entered into after April 1, 1964, is hereby validated. Any such fiduciary shall be authorized to enter into any other agreement not in conflict with the express terms of the will or other governing instrument that may be necessary or advisable in order to secure for federal estate tax purposes the appropriate marital deduction available under the Internal Revenue Code, and to do and perform all acts incident to securing such deduction.
  4. Where a will or trust agreement directs the fiduciary to satisfy a pecuniary or fractional bequest or transfer in trust of a pecuniary amount or fractional share in favor of the testator's or donor's spouse with amounts or assets having a value equal to the maximum marital deduction available under the Internal Revenue Code, the interest of such spouse shall vest immediately upon the testator's death in the case of a will, and upon the execution of the trust agreement in the case of a trust, regardless of when the exact amount of the bequest or transfer is finally determined.

    (Code 1950, § 64-71.2; 1966, c. 441; 1968, c. 656, § 64.1-74; 1978, c. 481; 2012, c. 614.)

§ 64.2-429. Construction of trust provisions otherwise eligible for the election permitted under § 2056(b)(7) of the Internal Revenue Code.

If any trust created under a will or trust agreement made by a decedent dying after December 31, 1981, would qualify for the election specified in § 2056(b)(7) of the Internal Revenue Code but for (i) a direction that accrued income remaining in the hands of a trustee at the death of the surviving spouse of the decedent not be paid to the estate of the surviving spouse or (ii) an authorization to retain unproductive property as an asset of the trust, then, unless the decedent shall have specifically otherwise provided in the will or trust agreement by reference to this section, (a) all accrued and undistributed income of the trust at the death of the surviving spouse shall be paid to the personal representative of the surviving spouse as contemplated by the Uniform Principal and Income Act (§ 64.2-1000 et seq.) and (b) the surviving spouse shall have the right to require the trustee of the trust to make the trust assets productive of income, so as to render the trust eligible for the election provided in § 2056(b)(7) of the Internal Revenue Code.

This section shall apply to all wills and revocable trusts made by decedents dying after December 31, 1981, regardless of when the will or trust was made.

(1984, c. 339, § 64.1-74.1; 2012, c. 614.)

§ 64.2-430. Certain marital deduction formula clauses to be construed to refer to federal marital deduction allowable if decedent had died on December 31, 1981.

  1. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, then such formula provision shall be construed as referring to the maximum amount of property eligible for the marital deduction as was allowable under the Internal Revenue Code as if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended to refer to the maximum marital deduction of the Internal Revenue Code in effect at the time of his death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer specifically to an unlimited marital deduction or an amount qualifying for such deduction, or to otherwise manifest an intent to have the estate qualify for the unlimited marital deduction.
  2. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, but no more than will reduce such federal estate tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, then such provision reducing such bequest to such amount necessary to reduce the federal tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, shall be construed as referring to a computation done as of December 31, 1981, that would have reduced the federal estate tax to zero if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended the computation to be made as of the date of death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer to the federal estate tax on a date later than September 12, 1981.
  3. The proceeding to determine whether the decedent intended that the computation under subsection A or B be made as of the date of death, rather than the earlier 1981 date, shall be filed within 12 months following the death of the testator or grantor. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

    (1982, c. 622, § 64.1-62.1; 1983, c. 512; 1987, c. 504; 2012, c. 614.)

Law review. - For 1987 survey of Virginia wills, trusts, and estates law, see 21 U. Rich. L. Rev. 855 (1987).

§ 64.2-431. Certain powers of appointment construed to refer to federal gift tax exclusion in effect on date of execution.

If an instrument executed before September 12, 1981, provides for a power of appointment that may be exercised during any period after December 31, 1981, and such power of appointment is defined in terms of, or by reference to, the maximum amount of property qualifying for the gift tax exclusion under federal law, then such instrument shall be construed as referring to the maximum amount of property eligible for the annual gift tax exclusion as was allowable under the Internal Revenue Code in effect on the date of execution of such instrument provided that the instrument described has not been amended after September 12, 1981, to refer specifically to the federal gift tax exclusion available after December 31, 1981, or the amount qualifying for such exclusion.

(1982, c. 622, § 64.1-62.2; 2012, c. 614.)

§ 64.2-432. Certain formula clauses to be construed to refer to federal estate and generation-skipping transfer tax laws applicable to estates of decedents dying after December 31, 2009, and before January 1, 2011.

  1. A will, trust, or other instrument of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the "unified credit," "estate tax exemption," "applicable exemption amount," "applicable credit amount," "applicable exclusion amount," "generation-skipping transfer tax exemption," "GST exemption," "marital deduction," "maximum marital deduction," "unlimited marital deduction," "inclusion ratio," "applicable fraction," or any section of the Internal Revenue Code relating to the federal estate tax or generation-skipping transfer tax, or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate tax and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010 regardless of whether the decedent's personal representative or other fiduciary elects not to have the estate tax apply with respect to the estate. This provision shall not apply with respect to a will, trust, or other instrument that manifests an intent that a contrary rule shall apply.
  2. The personal representative, trustee, other fiduciary, or any affected beneficiary under the will, trust, or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust, or other instrument be construed in a manner other than as provided in subsection A. A proceeding under this section shall be commenced prior to January 1, 2012. In such a proceeding, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust, or other instrument. The court shall have the power to modify a provision of a will, trust, or other instrument that refers to the federal estate tax or generation-skipping transfer tax laws as described in subsection A to (i) conform the terms to the decedent's intention or (ii) achieve the decedent's tax objectives in a manner that is not contrary to the decedent's probable intention. The court may provide that its decision, including any decision to modify a provision of a will, trust, or other instrument, shall be effective as of the date of the decedent's death. A person who commences a proceeding under this section has the burdens of proof, by clear and convincing evidence, and persuasion in establishing the decedent's intention that the will, trust, or other instrument be construed in a manner other than as provided in subsection A.
  3. For purposes of this section, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust, or other instrument shall be construed in a manner other than as provided in subsection A, and to conform the terms of the will, trust, or other instrument to the decedent's intention without court approval as provided in subsection B. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to § 64.2-709 . "Interested person" means any person whose consent is required in order to achieve a binding settlement were the settlement to be approved by the court. (2010, c. 238, § 64.1-62.4; 2011, c. 679; 2012, c. 614; 2013, c. 784.)

Editor's note. - Acts 2013, c. 784, effective April 3, 2013, in cl. 2 provides: "That the provisions of this act shall be effective retroactively to October 1, 2012."

The 2013 amendments. - The 2013 amendment by c. 784, effective April 3, 2013, and applies retroactively to October 1, 2012, rewrote the section.

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

Article 4. Uniform International Wills Act.

§ 64.2-433. Definitions.

As used in this article:

"Authorized person" and "person authorized to act in connection with international wills" means a person who by § 64.2-441 or by the laws of the United States, including members of the diplomatic and consular service of the United States designated by Foreign Service Regulations, is empowered to supervise the execution of international wills.

"International will" means a will executed in conformity with §§ 64.2-434 through 64.2-437 .

(1995, c. 443, § 64.1-96.2; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alaska: Alaska Stat. § 13.12.912 to 13.12.921.

California: California Prob. Code §§ 6380 to 6391.

Colorado: C.R.S. §§ 15-11-1001 to 15-11-1011.

Connecticut: Conn. Gen. Stat. §§ 5a-1 to 50a-9.

Delaware: 12 Del. C. §§ 251 to 259.

District of Columbia: D.C. Code §§ 18-701 to 18-710.

Hawaii: H.R.S. § 560:2-1001.

Illinois: 755 I.L.C.S. 10/0.01 to 10/10.

Minnesota: Minn. Stat. §§ 524.2-1001 to 524.2-1010.

Montana: Mont. Code Anno. §§ 72-2-901 to 72-2-910.

Nevada: Nev. Rev. Stat. Ann. §§ 133A.010 through 133A.120.

New Hampshire: R.S.A. §§ 551-A:1 to 551-A:10.

New Mexico: N.M. Stat. Ann. §§ 45.2-1001 to 45.2-1010 .

North Dakota: N.D. Cent. Code §§ 30.1-08.2-01 through 30.1-08.2-09.

Oklahoma: 84 Okl. St. §§ 350 through 859.

Oregon: ORS § 112.232.

Virgin Islands: 15 V.I.C. §§ 2-1001 through 2-1010.

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

§ 64.2-434. Validity.

  1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets, and of the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of this article.
  2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.
  3. This article shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

    (1995, c. 443, § 64.1-96.3; 2012, c. 614.)

§ 64.2-435. Requirements.

  1. The will shall be made in writing. It need not be written by the testator himself. It may be written in any language, by hand or by any other means.
  2. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
  3. In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
  4. When the testator is unable to sign, the absence of his signature does not affect the validity of the international will if the testator indicates the reason for his inability to sign and the authorized person makes note thereof on the will. In these cases, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator to sign the testator's name for him, if the authorized person makes note of this also on the will, but it is not required that any person sign the testator's name for him.
  5. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

    (1995, c. 443, § 64.1-96.4; 2012, c. 614.)

§ 64.2-436. Other points of form.

  1. The signatures shall be placed at the end of the will. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.
  2. The date of the will shall be the date of its signature by the authorized person. That date shall be noted at the end of the will by the authorized person.
  3. The authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so, and at the express request of the testator, the place where he intends to have his will kept shall be mentioned in the certificate provided for in § 64.2-437 .
  4. A will executed in compliance with § 64.2-435 shall not be invalid merely because it does not comply with this section. (1995, c. 443, § 64.1-96.5; 2012, c. 614.)

§ 64.2-437. Certificate.

The authorized person shall attach to the will a certificate to be signed by him establishing that the requirements of this article for valid execution of an international will have been complied with. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate shall be substantially in the following form: CERTIFICATE (Convention of October 26, 1973) I, .................... (name, address and capacity), a person authorized to act in connection with international wills Certify that on .................. (date) ................ (place) (testator) .................... (name, address, date and place of birth) in my presence and that of the witnesses (a) .................... (name, address, date and place of birth) (b) .................... (name, address, date and place of birth) has declared that the attached document is his will and that he knows the contents thereof. I furthermore certify that: (a) in my presence and in that of the witnesses (1) the testator has signed the will or has acknowledged his signature previously affixed. *(2) following a declaration of the testator stating that he was unable to sign his will for the following reason .................... I have mentioned this declaration on the will *and the signature has been affixed by (name and address) (b) the witnesses and I have signed the will; *(c) each page of the will has been signed by .................... and numbered; (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above; (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting; (f) the testator has requested me to include the following statement concerning the safekeeping of his will: PLACE OF EXECUTION DATE SIGNATURE and, if necessary, SEAL. * to be completed if appropriate

(1995, c. 443, § 64.1-96.6; 2012, c. 614.)

§ 64.2-438. Effect of certificate.

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this article. The absence or irregularity of a certificate shall not affect the formal validity of a will under this article.

(1995, c. 443, § 64.1-96.7; 2012, c. 614.)

§ 64.2-439. Revocation.

The international will shall be subject to the ordinary rules of revocation of wills.

(1995, c. 443, § 64.1-96.8; 2012, c. 614.)

§ 64.2-440. Source and construction.

Sections 64.2-433 through 64.2-439 derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and applying this article, regard shall be had to its international origin and to the need for uniformity in its interpretation.

(1995, c. 443, § 64.1-96.9; 2012, c. 614.)

§ 64.2-441. Persons authorized to act in relation to international will; eligibility; recognition by authorizing agency.

Individuals who have been admitted to practice law before the courts of the Commonwealth and who are members in good standing of the Virginia State Bar are hereby declared to be authorized persons in relation to international wills.

(1995, c. 443, § 64.1-96.10; 2012, c. 614.)

§ 64.2-442. International will information registration.

The Secretary of the Commonwealth shall establish a registry system by which authorized persons may register in a central information center, information regarding the execution of international wills, keeping that information in strictest confidence until the death of the testator and then making it available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator's death to the center. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the name, social security or any other individual-identifying number established by law, address, and date and place of birth of the testator, and the intended place of deposit or safekeeping of the instrument pending the death of the testator. The Secretary of the Commonwealth, at the request of the authorized person, may cause the information he receives about execution of any international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in the Commonwealth.

(1995, c. 443, § 64.1-96.11; 2001, c. 85; 2012, c. 614.)

Article 5. Probate.

§ 64.2-443. Jurisdiction of probate of wills.

  1. The circuit courts shall have jurisdiction of the probate of wills. A will shall be offered for probate in the circuit court in the county or city wherein the decedent has a known place of residence; if he has no such known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and if there is no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.
  2. Where any person has become, either voluntarily or involuntarily, a patient in a nursing home, convalescent home, or similar institution due to advanced age or impaired health, the place of legal residence of the person shall be rebuttably presumed to be the same as it was before he became a patient.

    (Code 1950, §§ 64-72, 64-72.1; 1966, c. 330; 1968, c. 656, §§ 64.1-75, 64.1-76; 2012, c. 614.)

Cross references. - As to jurisdiction of clerk or court to appoint administrator, see § 64.2-502 .

Law review. - For note on the effect of probate decrees of distribution on future interests, see 18 Wash. & Lee L. Rev. 305 (1961).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 14 Suits to Impeach or Establish Wills. 14.04 Statutory Provisions. Cox.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Probate is wholly dependent on statute. - The whole subject of probate of wills rests upon and is regulated by statute law, and the courts, in admitting a will to probate, are confined to the simple question, whether the paper admitted to probate is the true last will and testament of the deceased, and their jurisdiction cannot be extended further, for the jurisdiction of a court to probate is not to ascertain and enforce rights of property, but to establish, preserve and perpetuate an important muniment of title. Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 (1914). See Coalter's Ex'r v. Bryan, 42 Va. (1 Gratt.) 18 (1844); Lamberts v. Cooper's Ex'r, 70 Va. (29 Gratt.) 61 (1877); Kirby v. Kirby, 84 Va. 627 , 5 S.E. 539 (1888).

A probate court is a special tribunal of limited and strictly construed jurisdiction and has no powers other than those expressly conferred by the statute creating it. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

What constitutes "estate" within meaning of section. - A deposit to the credit of decedent in a bank, United States Savings Bonds and Treasury Bonds found in the lockbox in that bank, and the location in the same city of a partnership business in which decedent was interested, constituted "estate" within the meaning of this section such as to give the lower court jurisdiction to entertain a proceeding to admit decedent's will to probate. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672 (1961).

This section contemplates four distinct conditions, each of which would confer jurisdiction, and none of which depends upon legal domicile as distinguished from residence: (a) The decedent may have a mansion house, which implies residence, and if he has a mansion house which is his residence, the court of the county in which that mansion house is located has jurisdiction; (b) the decedent may have no mansion house, and yet he may live with a friend or relative, or in a boardinghouse, and so have a known place of residence, and the establishment of this fact gives jurisdiction to the court of that locality; (c) the section contemplates that the decedent may have neither such a mansion nor such a place of residence, and then the court of the county or corporation wherein any of his real estate lies has jurisdiction to appoint his administrator; (d) if neither of these conditions appears, then the court of the county or corporation in which the decedent dies or has estate may appoint his administrator. Wilkinson v. Spiller, 143 Va. 267 , 129 S.E. 235 (1925).

"Known place of residence" construed. - A soldier, not originally a resident of Roanoke, married in that city, and after the marriage, so long as he remained in Roanoke, regarded the home of his mother-in-law, with whom his wife resided, as his home. Prior to the marriage he agreed with his future wife that he would make Roanoke his home after his discharge from military service. Shortly after the marriage he went with his company to France. His wife remained in Roanoke with her mother, and in letters from France he reiterated his purpose of returning to live there permanently. It was held that the soldier was a resident of Roanoke within this section, conferring jurisdiction of the probate of wills on the circuit and corporation courts in the county or corporation wherein the decedent had a "known place of residence." Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 (1921).

A probate court is authorized to determine where a decedent was domiciled at his death when the proceeding is initiated under this section. French v. Short, 207 Va. 548 , 151 S.E.2d 354 (1966).

Probate of wills of persons domiciled outside Virginia. - This section makes no distinction between the probate of wills of persons domiciled in Virginia and the probate of wills of persons domiciled outside Virginia. French v. Short, 207 Va. 548 , 151 S.E.2d 354 (1966).

Where general jurisdiction exists probate is not void. - The fact that the court had no jurisdiction to admit a particular will to probate will not render a judgment admitting it to probate void, the court having jurisdiction over the subject of admitting wills to probate. Fisher v. Bassett, 36 Va. (9 Leigh) 119, 33 Am. Dec. 227 (1837); Hutcheson v. Priddy, 53 Va. (12 Gratt.) 85 (1855). See Burnley's Representatives v. Duke, 41 Va. (2 Rob.) 102 (1843).

There is no statute placing any limitation of time upon the probate of a will. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919). See note of this case under § 64.1-95.

A will devising lands lying in Virginia, may be proved in Virginia, although declared void in some other of the United States. Rice v. Jones, 8 Va. (4 Call) 89 (1786).

Situs of debt due decedent is residence or location of debtor. - Generally for probate purposes, under statutes such as this section, which gives jurisdiction to a court of the locality wherein a decedent "has estate," the situs of a debt due the decedent is the residence or location of the debtor. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672 (1961).

This section establishes no mandatory duty in original proceedings to probate a foreign will because there are assets in the jurisdiction, absent special circumstances such as existence of real estate or creditors in Virginia. Hence where the proper court of decedent's domicile had assumed jurisdiction the lower court did not abuse its discretion in refusing probate. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672 (1961).

Jurisdiction of federal court sitting in State. - Since the legislature of Virginia has not chosen to make probate a part of the general equity jurisdiction of the courts of Virginia, a federal court sitting in the State will be limited in the same manner as the State equity court. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

Jurisdiction of a court of probate does not extend to the ascertainment and enforcement of rights of property, but only to establish, preserve and perpetuate an important muniment of title. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292 (1977).

Circuit court orders not subject to collateral attack. - A circuit court is a court of general jurisdiction regarding probate and the grant of administration of estates and even if it errs in taking jurisdiction in a particular case, the order generally is not void, but only voidable and cannot be questioned in any collateral proceeding. Bolling v. D'Amato, 259 Va. 299 , 526 S.E.2d 257 (2000).

Jurisdiction of county commissioner of accounts. - County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner's authority to assist the circuit court with the settlement of estates was an extension of the circuit court's subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

Will construction. - Ordinarily, the subject of will construction is beyond the province and jurisdiction of the probate court in the probate proceeding. In some cases, however, it is necessary and proper for the probate court to construe the document in order to determine questions such as whether the instrument is testamentary in character. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292 (1977).

The courts, trial and appellate, in the exercise of their probate jurisdiction, are strictly and severely limited to deciding the question whether or not the paper was the will of the decedent. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292 (1977).

Relief from bankruptcy automatic stay was granted. - State court litigation that involved a dispute over a will and administration of an estate would in no way interfere with the bankruptcy case and predominant questions of state law would be better addressed in state court; furthermore, §§ 64.1-75 and 64.1-88 established jurisdiction for plaintiff's action in state court. Keane v. Keane (In re Keane), No. 02-64778-T, 2003 Bankr. LEXIS 1555 (Bankr. E.D. Va. Jan. 27, 2003).

CIRCUIT COURT OPINIONS

Administrator lacked capacity to accept service of process. - Defendant's motion to quash service of process of a motion for judgment on the ground that the administrator who accepted service of process did not have authority to do so as her qualification was pursuant to § 8.01-50 , not § 64.1-75, was properly granted because, while the administrator intended to qualify in order to accept service of process, she did not do so, and she, not the clerk, bore the responsibility for this mistake. Thus, there was, in fact, no error or oversight to correct, as contemplated by § 8.01-428 . Blick v. Fant, 70 Va. Cir. 76, 2005 Va. Cir. LEXIS 292 (Greensville County 2005) (decided under prior law).

§ 64.2-444. Clerks may probate wills.

  1. The clerk of any circuit court, or any duly qualified deputy of such clerk, may admit wills to probate, appoint and qualify executors, administrators, and curators of decedents, and require and take from them the necessary bonds, in the same manner and with like effect as the circuit court.
  2. The clerk shall keep an order book, in which shall be entered all orders made by him, or his deputy, in performance of his duties pursuant to subsection A, except probate orders that are recorded in the will book need not be entered in the order book.
  3. All wills heretofore admitted to probate by any duly qualified deputy clerk of any circuit court are deemed to have been properly admitted to probate to the same extent as if the clerk had acted in the proceeding.

    (Code 1950, § 64-73; 1968, c. 656, § 64.1-77; 1973, c. 217; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For article, "Justice and Efficiency Under a Model of Estate Settlement," see 66 Va. L. Rev. 727 (1980). For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

For note, "An Analysis of the Virginia Wills Act Formalities and the Need for a Dispensing Power Statute in Virginia," see 50 Wash. & Lee L. Rev. 1145 (1993).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 29.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Judgment of clerk is judgment in rem. - The judgment of the clerk of a circuit court appointing an administrator is a judgment in rem, whose validity can only be questioned in the manner provided for by the following section. Beavers v. Beavers, 185 Va. 418 , 39 S.E.2d 288 (1946).

In admitting a will to probate the clerk acts in a judicial capacity and the order made by him, admitting or rejecting a will, is as much a judgment as though entered by the court. His judgment is a judgment in rem whose validity can be drawn in question only in the manner and within the time prescribed by law. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968); Conrad v. Carter, 224 Va. 485 , 297 S.E.2d 706 (1982).

It is well settled in this jurisdiction and elsewhere that an order or judgment of a clerk, or court having jurisdiction of the matter, admitting a paper to probate is a judgment in rem, binding not only the immediate parties to the proceeding in which the order is had, but all other persons and all other courts with respect to property within the jurisdiction of the probate court. Such an order of probate cannot be attacked collaterally and can be assailed only in the manner provided by law. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968).

Effect of clerk's order admitting paper to probate. - The clerk's order admitting the paper to probate as the true last will and testament of the testatrix was an adjudication not only that the will was duly executed, but of all other questions necessary to the validity of the testamentary act. It was necessarily a finding that the paper was testamentary in character, for without such finding it could not have been admitted to probate as "the true last will and testament" of testator. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968).

Demurrer as collateral attack on order of probate. - In a suit to construe a holographic will that had been admitted to probate by the clerk of the probate court, the lower court erred in sustaining a demurrer and dismissing the bill of complaint upon the stated holding "that the paper writing admitted to probate lacks testamentary intent." The court was without authority or jurisdiction to entertain the demurrer, which constituted a collateral attack on the order of probate. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968).

The clerk properly admitted to probate only the undeleted portions of a holographic will, for the testator could change a holographic will as he chose and there was nothing equivocal about his act in the instant case, it being his clear intent to cancel the bequests to the persons whose names were deleted. Sheltering Arms Hosp. v. First & Merchants Nat'l Bank, 199 Va. 524 , 100 S.E.2d 721 (1957).

There is no limitation of time on the probate of a will. - Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919). As to protection of bona fide purchasers, see § 64.1-95.

Alternative pleading permitted. - Because a stepmother essentially sought alternative theories of recovery, as prescribed by Va. Sup. Ct. R. 1:4(k), and §§ 64.1-77 and 64.1-88, the trial court properly denied the children's motion to dismiss her appeal of a clerk's order concerning a 1995 will based on allegations of approbation and reprobation on her part. Matthews v. Matthews, 277 Va. 522 , 675 S.E.2d 157 (2009).

§ 64.2-445. Appeal from order of clerk.

Any person interested in the probate of the will may appeal any order entered pursuant to § 64.2-444 within six months after the entering of such an order, without giving any bond, to the circuit court whose clerk, or deputy, has made the order. Upon application for such appeal, the clerk or deputy shall enter forthwith in his order or will book an order allowing such appeal. The appeal shall be given precedence on the court's docket. The matter shall be heard de novo by the court and a copy of its final order shall be entered into the clerk's order or will book. At any time after such appeal is allowed, the court may enter an order for the protection of the persons interested in the probate of the will or for the protection or preservation of any property involved as it finds necessary.

(Code 1950, § 64-74; 1968, c. 656, § 64.1-78; 2012, c. 614.)

Law review. - For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 29.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Section applies to probate of will theretofore probated in another state. - The provisions of this section apply to the probate of a copy of a will theretofore probated in another state as well as the probate of a domestic will. Horn v. Horn, 195 Va. 912 , 81 S.E.2d 593 (1954).

Words "such an order" include any order entered by the clerk or his deputy in the performance of the duties authorized by § 64.1-77, and in the manner therein directed, whether it relates to the probate of a domestic will under the authority of that section, or to the copy of a foreign will under the authority of § 64.1-92. Horn v. Horn, 195 Va. 912 , 81 S.E.2d 593 (1954).

Virginia statutes provide two ways in which an order of probate may be assailed and a proper attack must follow one of them. Under this section "Any person interested may, within six months after the entering of such an order, appeal therefrom as a matter of right . . . to the court whose clerk, or deputy, has made the order." The statute further provides that in such a proceeding the court shall hear and determine the matter as though it had been presented to it in the first instance. Under § 64.1-88 a person interested, who was not a party to the probate proceeding, may proceed by a bill in equity to impeach or establish the will. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968).

Proceeding is in the nature of an appeal. - The right of appeal under this section is more in the nature of an appeal than a writ of error. It is assimilated to an appeal in that there is a continuation of the same case upon the same evidence, and the case is simply heard de novo in the higher tribunal. Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 (1914).

Court hears and determines matter de novo. - On appeal under this section, the court takes jurisdiction and hears and determines "the matter as though it had been presented to said court in the first instance." All appropriate remedies provided by law with respect to the probate of wills by courts may then be called into activity, and all rights and reservations which pertain to such case are preserved. Saunders v. Link, 114 Va. 285 , 76 S.E. 327 (1912).

On appeal from the clerk's order the lower court hears the matter de novo and consequently the propriety of its ruling is to be determined as of the time of that hearing. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672 (1961).

Where on appeal the proponent of the will offered no evidence of its valid execution, probate was properly denied, since the cause was heard de novo. Horn v. Horn, 195 Va. 912 , 81 S.E.2d 593 (1954).

But appeal is not "new suit" within § 8.01-229 . - The appeal is not the bringing of a "new suit," but a prolongation and continuance of the old one, and hence the time for taking the appeal prescribed by this section is not extended by the provisions of § 8.01-229 giving an extension in certain cases "if there be occasion to bring a new suit." Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 (1914).

Appeal is perfected upon entry of order by clerk. - Upon an application for an appeal the clerk is required to enter forthwith an order allowing the appeal. When this is done the appeal is perfected. Convening the other interested parties before the court is accomplished after the appeal has been perfected. Blalock v. Riddick, 186 Va. 284 , 42 S.E.2d 292 (1947).

Any interested party may demand a jury. - In every proceeding relating to the probate of a will, whether it be a proceeding on an appeal from the action of a clerk of a court in admitting a will to probate or whether it has reference to a motion made to the court in the first instance to probate a will, any interested party may demand a jury trial. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 (1924).

Sole issue is whether paper is decedent's will. - The sole issue is whether the paper offered for probate is or is not the will of the decedent. When this question is decided the function of the proceeding is exhausted, and the court should not decide other questions not connected with that issue. Eason v. Eason, 204 Va. 347 , 131 S.E.2d 280 (1963).

Hence, proceeding is not res judicata as to other issues. - A proceeding under this section was not res judicata with respect to a later suit for specific performance of certain agreements allegedly made by decedent. Evidence relating to the release of such agreements was introduced in the probate proceeding, but the issues relating to the agreements were not actually litigated and determined. Eason v. Eason, 204 Va. 347 , 131 S.E.2d 280 (1963).

Jurisdiction of a court of probate does not extend to the ascertainment and enforcement of rights of property, but only to establish, preserve and perpetuate an important muniment of title. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292 (1977).

Will construction. - Ordinarily, the subject of will construction is beyond the province and jurisdiction of the probate court in the probate proceeding. In some cases, however, it is necessary and proper for the probate court to construe the document in order to determine questions such as whether the instrument is testamentary in character. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292 (1977).

The courts, trial and appellate, in the exercise of their probate jurisdiction, are strictly and severely limited to deciding the question whether or not the paper was the will of the decedent. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292 (1977).

As to apportionment of costs in a proceeding brought under this section, see Bowen v. Bowen, 122 Va. 1 , 94 S.E. 166 (1917).

§ 64.2-446. Motion for probate; process against persons interested in probate.

  1. A person offering, or intending to offer, to a circuit court or to the clerk of the circuit court a will for probate, may request that the clerk of such court summon any person interested in the probate of the will to appear to show cause why the will should not be admitted to probate. Upon such request, the clerk shall, or in the absence of such request the court may, summon all persons interested in the probate of the will to appear to show cause why the will should not be admitted to probate.
  2. The court shall hear the motion to admit the will to probate when all persons interested in the probate of the will have been summoned or otherwise appear as parties. Upon the request of any person interested in the probate of the will, the court shall order a trial by jury to ascertain whether any paper produced is the will of the decedent. The court shall enter a final order as to the probate.
  3. In the absence of a request that the clerk summon any person interested in the probate of the will to appear to show cause why the will should not be admitted to probate, the court in which the will is offered for probate may proceed to admit or reject the will without summoning any party.

    (Code 1950, §§ 64-75, 64-76, 64-78, 64-79, 64-81; 1968, c. 656, §§ 64.1-79, 64.1-80, 64.1-82, 64.1-83, 64.1-85; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For article, "Justice and Efficiency Under a Model of Estate Settlement," see 66 Va. L. Rev. 727 (1980). For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

For note, "An Analysis of the Virginia Wills Act Formalities and the Need for a Dispensing Power Statute in Virginia," see 50 Wash. & Lee L. Rev. 1145 (1993).

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Section is mandatory as to jury trial. - This section giving a right of trial by jury is manifestly intended to be put on the same plane as § 64.1-88, wherein it is provided, "a person interested . . . may proceed by bill in equity to impeach or establish a will, on which bill a trial by jury shall be ordered." McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 (1924).

This section evinces the legislative purpose and intent that the issue of devisavit vel non shall be submitted to a jury if desired. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151 (1950).

And any interested party may demand a jury. - In every proceeding relating to the probate of a will whether it be an appeal from the action of the clerk of a court in admitting a will to probate or whether it has reference to a motion made to the court in the first instance to probate a will, an interested party may demand the jury, and an heir at law is an interested party. This section is mandatory and deprives the court of all discretion when a request for a jury is made. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 (1924).

Mode of proceeding is as for trial of issue devisavit vel non. - Upon the trial provided by this section the mode of proceeding is substantially the same as the trial of an issue devisavit vel non. In other words the question involved should be tried as is now provided by statute for the trial of civil cases by a jury. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 (1924).

Finality of verdict. - Where the case has been fairly presented and there is credible evidence to support the conclusion reached by the jury, neither the trial court nor the Supreme Court may disturb the verdict. Eason v. Eason, 203 Va. 246 , 123 S.E.2d 361 (1962).

Determination of testamentary capacity; res adjudicata. - The effect of this section and § 64.1-88 is that an interested party may have the actual mental capacity of a testator to make a will factually decided through the procedure afforded in this chapter, and that right cannot be foreclosed by estoppel of record or rendered res adjudicata in any judicial or quasi-judicial proceeding to which such interested person may be a party, other than by one of probate. The issue of whether or not a testator had mental capacity to make a particular will can be rendered res adjudicata in a probate proceeding and none other. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151 (1950); Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

Trial of the rights of all interested parties in one proceeding was expressly allowed by this section, where two wills executed by testatrix were involved and her testamentary capacity at the time of the execution of the second will was the dominant issue. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151 (1950).

CIRCUIT COURT OPINIONS

Notice. - Although a party moved to set aside the appointment of the administrator of the estate of the decedent, because the pleadings did not establish actual notice of an attempt to probate the decedent's purported will, and actual notice would not have equated to an appearance in any event, the administrator of the estate of the decedent could proceed in the administrator's attempt to impeach the will. Pouncy v. Melvin, 105 Va. Cir. 477, 2020 Va. Cir. LEXIS 126 (Chesapeake Aug. 12, 2020).

§ 64.2-447. Use of depositions.

  1. The deposition of a witness who subscribed a will attesting that the will is the will of the testator, or in the case of a holographic will, a witness attesting that the will is wholly in the handwriting of the testator, may be admitted as evidence to prove the will if the witness (i) resides outside of the Commonwealth or (ii) resides in the Commonwealth but is unable to testify for any reason before the court or clerk where the will is offered. For the purpose of taking such depositions, the person offering the will for probate shall be permitted to withdraw the will temporarily, leaving an attested copy with the court or clerk, or the clerk may give such person a certified copy of the will.
  2. The deposition of such witnesses shall be taken and certified in accordance with § 8.01-420.4 and the Rules of Supreme Court of Virginia, except that no notice of the time and place of taking the deposition need be given unless the probate is opposed by some person interested in the probate of the will. Such deposition may be taken prior to the time that the will is offered for probate and may be filed at the same time the will is offered for probate, provided, that if probate is opposed by some person interested in the probate of the will, such person shall have the right to examine such witness. (Code 1950, § 64-83; 1966, c. 314; 1968, c. 656, § 64.1-87; 1981, c. 183; 2012, c. 614.)

Cross references. - As to pretrial procedures, depositions, and production at trial, see Rule 4:0 et seq.

Law review. - For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982).

§ 64.2-448. Complaint to impeach or establish a will; limitation of action; venue.

  1. A person interested in the probate of the will who has not otherwise been before the court or clerk in a proceeding to probate the will pursuant to § 64.2-444 or in an ex parte proceeding to probate the will pursuant to subsection B of § 64.2-446 may file a complaint to impeach or establish the will within one year from the date of the order entered by the court in exercise of its original jurisdiction or after an appeal of an order entered by the clerk, or, if no appeal from an order entered by the clerk is taken, from the date of the order entered by the clerk.
  2. A person interested in the probate of the will who had been proceeded against by an order of publication pursuant to subsection B of § 64.2-449 may file a complaint to impeach or establish the will within two years from the date of the order entered by the court in the exercise of its original jurisdiction, unless he actually appeared as a party or had been personally served with a summons to appear.
  3. A person interested in the probate of the will who has not otherwise been before the court and who was a minor at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person reaches the age of maturity or is judicially declared emancipated.
  4. A person interested in the probate of the will who has not otherwise been before the court and who was incapacitated at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person is restored to capacity.
  5. Upon the filing of a complaint to impeach or establish the will pursuant to this section, the court shall order a trial by jury to ascertain whether what was offered for probate is the will of the testator. The court may require all testamentary papers of the testator be produced and direct the jury to ascertain whether any paper produced is the will of the testator. The court shall decide whether to admit the will to probate.
  6. The venue for filing a complaint to impeach or establish the will shall be as specified in subdivision 7 of § 8.01-261 .
  7. Subject to the provisions of § 8.01-428 , a final order determining whether to admit a will to probate bars any subsequent complaint to impeach or establish a will. (Code 1950, §§ 64-80, 64-84 through 64-86; 1968, c. 656, §§ 64.1-84, 64.1-88 through 64.1-90; 1972, c. 825; 1977, c. 624; 1996, c. 58; 2012, c. 614.) I. General Consideration. II. Nature of Jurisdiction. III. Parties. IV. Trial of Issue Devisavit Vel Non. V. Effect of Order for Probate.

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970). For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see Wash. & Lee L. Rev. 1325 (1985).

I. GENERAL CONSIDERATION.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

For the history of former provisions, see Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 (1933).

This section provides a saving for nonresidents and persons under disabilities. In re Will of Bentley, 175 Va. 456 , 9 S.E.2d 308 (1940).

This section confers both a right of action and remedy. Ferguson v. Ferguson, 169 Va. 77 , 192 S.E. 774 (1937).

Virginia statutes provide two ways in which an order of probate may be assailed and a proper attack must follow one of them. Under § 64.1-78 "Any person interested may, within six months after the entering of such an order, appeal therefrom as a matter of right . . . to the court whose clerk, or deputy, has made the order." The statute further provides that in such a proceeding the court shall hear and determine the matter as though it had been presented to it in the first instance. Under this section a person interested, who was not a party to the probate proceeding, may proceed by a bill in equity to impeach or establish the will. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178 (1968).

Section presupposes that will in question was offered for probate. - The provisions of this section that "a person interested, who was not a party to the proceeding may proceed by bill in equity to impeach or establish the will" contemplates and presupposes, as does the limitation found in § 64.1-89, that "the will" in question was offered for probate to the court or clerk. It does not mean that some will other than that tendered may not be probated when more than a year has elapsed after the entry of an order allowing or refusing probate of a different will. Nor does it state or mean that a lost will may not be established in a court of equity under its general equity jurisdiction. Hawkins v. Tampa, 197 Va. 22 , 87 S.E.2d 636 (1955).

The suit authorized is merely a continuation of the probate proceedings before the judge and is therefore a matter over which federal courts have no jurisdiction. Guilfoil v. Hayes, 86 F.2d 544 (4th Cir. 1936), cert. denied, 300 U.S. 669, 57 S. Ct. 511, 81 L. Ed. 876 (1937).

Probate is a judgment in rem, which cannot be collaterally attacked, but only assailed in the manner provided by statute. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

"Decree or order under § 64.1-85 or under § 64.1-77." - This section permits the filing of a bill to impeach or establish a will only after a decree or order has been entered under § 64.1-85 or under § 64.1-77. Section 64.1-85 authorizes a court to probate a will or reject a will from probate in an ex parte proceeding. The court may do so either on original presentation or on appeal from a clerk's order. Section 64.1-77 authorizes a clerk to probate a will or reject a will from probate in an ex parte proceeding. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

This section, which designates the courts having jurisdiction to entertain suits under § 64.1-88 and prescribes the time-limitation for instituting such suits, also refers to the decree or order made by the court or clerk, that is, to an order entered under § 64.1-85 or § 64.1-77. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

Consent of some, but not all, heirs and distributees. - The court should not have probated the decedent's will on the basis of the consent of some, but not all, of the decedent's heirs and distributees. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

Section 8.01-322 . - Section 8.01-322 , which permits a direct attack by a party served by publication who did not appear, does not require a petitioner to allege or prove misrepresentation, fraud, or deceit as a condition to his right to a rehearing. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

Section 8.01-322 permits a court upon a rehearing to correct "any injustice in the proceedings." An injustice was done to the petitioners and to other heirs and distributees who were not parties to a compromise agreement in a suit under this section. By the compromise agreement the parties sought to settle a suit to impeach the decedent's will, which suit if successful would have resulted in benefits for all the decedent's heirs and distributees. But the compromise agreement provided that certain heirs and distributees, parties to the agreement, should receive shares of the decedent's estate and that the balance of her estate should be distributed in accordance with the will. The agreement was unjust because it benefited the heirs and distributees who were parties to the agreement, but provided no benefit for the other heirs and distributees. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

Extrinsic evidence. - Where the words of a will are plain, clear and unambiguous, extrinsic evidence shall not be considered. Virginia Nat'l Bank v. United States, 307 F. Supp. 1146 (E.D. Va. 1969), aff'd, 443 F.2d 1030 (4th Cir. 1971).

Alternative pleading permitted. - Because a stepmother essentially sought alternative theories of recovery, as prescribed by Va. Sup. Ct. R. 1:4(k), and §§ 64.1-77 and 64.1-88, the trial court properly denied the children's motion to dismiss her appeal of a clerk's order concerning a 1995 will based on allegations of approbation and reprobation on her part. Matthews v. Matthews, 277 Va. 522 , 675 S.E.2d 157 (2009).

This section modifies §§ 64.1-88 and 64.1-89 as well as § 64.1-84 by permitting an interested person, who "at the time of the sentence (now 'decree') or order" was an infant or of unsound mind, to bring a suit devisavit vel non within one year after he becomes of age or is restored to sanity, and by permitting an interested person, who "at that time" was a nonresident or was proceeded against by order of publication, to bring a suit devisavit vel non within two years "after such sentence (now 'decree') or order." The quoted words refer back to the time of a sentence (decree) or order mentioned in § 64.1-88, that is, to a sentence (decree) or order entered ex parte by the court ( § 64.1-85) or by the clerk ( § 64.1-77). Those words do not refer to a decree entered by a court probating or rejecting a will in a suit devisavit vel non. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

"Person interested." - The term "person interested" means that an individual must have a legally ascertainable, pecuniary interest, which will be impaired by probating a will or benefited by setting aside the will, and not a mere expectancy. Martone v. Martone, 257 Va. 199 , 509 S.E.2d 302 (1999).

II. NATURE OF JURISDICTION.

Method and right of impeaching a will. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327 (1939).

The method and right of impeaching a will depends on the procedure and law as set forth in the Virginia Code. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

Courts of equity have no inherent jurisdiction to set aside wills on the ground of fraud, undue influence, or lack of testamentary capacity on the part of the testator. Jurisdiction of these questions is to be found solely in this section. Queensbury v. Vial, 123 Va. 219 , 96 S.E. 173 (1918). See Hart v. Darter, 107 Va. 310 , 58 S.E. 590 (1907); Meade v. Meade, 111 Va. 451 , 69 S.E. 330 (1910); Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

The only jurisdiction in courts of equity to hear a suit to impeach a will is that conferred by this section. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327 (1939).

And court can exercise only powers granted herein. - In a proceeding under this section the court can only exercise the special powers provided herein; no other relief can be had in the case. Harris v. Wyatt, 113 Va. 254 , 74 S.E. 189 (1912).

Court is more than a court of probate. - The court in which a bill is filed under this section to impeach or establish a will is not a mere court of probate, but something more. It is a court of equity, and though its powers over the subject confided to it are limited, it may on a proper bill, review and correct errors in its proceedings after final decree in the cause. Connolly v. Connolly, 73 Va. (32 Gratt.) 657 (1880).

And jurisdiction of courts of probate differs from that of other civil tribunals, in that its province is not to ascertain and enforce the rights of property, but to establish, preserve and perpetuate some important muniment of title. Potts v. Flippen, 171 Va. 52 , 197 S.E. 422 (1938), cert. denied, 305 U.S. 662, 59 S. Ct. 364, 83 L. Ed. 429 (1939).

Federal courts do not assume jurisdiction of matters which are probate in nature, even though diversity of citizenship and the requisite jurisdictional amount may be present. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

Federal courts have no jurisdiction of suit authorized by this section. Guilfoil v. Hayes, 86 F.2d 544 (4th Cir. 1936), cert. denied, 300 U.S. 669, 57 S. Ct. 511, 81 L. Ed. 876 (1937).

Relief from bankruptcy automatic stay was granted. - State court litigation that involved a dispute over a will and administration of an estate would in no way interfere with the bankruptcy case and predominant questions of state law would be better addressed in state court; furthermore, §§ 64.1-75 and 64.1-88 established jurisdiction for plaintiff's action in state court. Keane v. Keane (In re Keane), No. 02-64778-T, 2003 Bankr. LEXIS 1555 (Bankr. E.D. Va. Jan. 27, 2003).

Limitation is of right as well as remedy. - The right to impeach a will was created by the same statute which prescribed a special limitation upon that right - the time within which such right can be exercised; thus, the limitation in this section is of the right as well as of the remedy, and does not constitute a pure statute of limitations - one affecting the remedy only. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327 (1939).

It may be taken advantage of by demurrer. - In a suit to impeach a will, the limitation provided in this section may be taken advantage of by a demurrer to the bill. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327 (1939).

New grounds in amended complaint allowed. - The contestants, having timely filed their original bill, could raise "new grounds" in an amended bill after the one-year time limit provided that the new grounds would not constitute a new and separate cause of action. Carter v. Williams, 246 Va. 53 , 431 S.E.2d 297 (1993).

Amendment held not retroactive. - There was nothing in the language of an amendment to this section reducing the time limit to declare or to indicate that the legislature intended to give to it a retroactive operation. Ferguson v. Ferguson, 169 Va. 77 , 192 S.E. 774 (1937).

No authority to institute suit after earlier decree. - The right to institute a suit devisavit vel non and the jurisdiction of a court to entertain such a suit do not exist independently of the statutory authorization contained in this section and §§ 64.1-89 and 64.1-90. Nothing in these sections authorizes the institution or entertaining of a suit devisavit vel non after a court has entered a decree probating or rejecting a will in an earlier suit devisavit vel non instituted under this section. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

This section did not authorize the petitioners to institute a suit devisavit vel non after the entry of a decree in a suit probating the decedent's will. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

III. PARTIES.

"Proceeding" includes order admitting or rejecting will. - The term "proceeding" as used in this section refers to the entire proceeding, including the order admitting the will to probate or rejecting it. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 (1924); Dillard v. Dillard, 78 Va. 208 (1883).

Heir at law under laws of foreign state not a "person interested." - If decedent died domiciled in Virginia, his wife would inherit the entire personal estate if he died intestate, and his sole heir at law under the laws of New York was not a "person interested" under this section. Guilfoil v. Hayes, 169 Va. 548 , 194 S.E. 804 (1938).

Parties to probate proceedings cannot subsequently contest will. - In general, persons who were parties to the original probate proceedings cannot subsequently file a bill to contest the will. Ford v. Gardner, 11 Va. (1 Hen. & M.) 72 (1806); Dillard v. Dillard, 78 Va. 208 (1883).

Except on ground of fraud. - A person, even though he had appeared and contested the probate, may file a bill to contest the will on the ground of a fraud, to the existence of which he was a stranger at the time of the probate. Ford v. Gardner, 11 Va. (1 Hen. & M.) 72 (1806).

Or where they withdrew from proceedings. - Persons who enter themselves as contestants in the probate proceedings, but presently withdraw, are not estopped from contesting the will under this section, providing for contests by persons not parties to the probate proceedings. Dillard v. Dillard, 78 Va. 208 (1883).

IV. TRIAL OF ISSUE DEVISAVIT VEL NON.

Section confers jurisdiction to try issue of devisavit vel non. - The language of this section shows a clear intendment to confer jurisdiction upon the court in which, or in the clerk's office of which, the will is probated to try an issue devisavit vel non. Cowper v. Sargeant, 160 Va. 562 , 169 S.E. 920 (1933).

Nature of suit devisavit vel non. - A suit devisavit vel non, though commenced by the filing of a bill in equity, is essentially a probate proceeding, governed by statute and having only one purpose: to determine whether purported wills should be admitted to probate. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

Determination of issue is mandatory. - Upon a bill in equity being filed, determination of the issue of devisavit vel non by a jury is by this section made mandatory unless actually waived by all interested parties. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151 (1950).

Parties may waive jury. - This section requiring that a "trial by jury shall be ordered" in proceedings to contest a will only means a jury trial, accompanied by all of the incidents and modes of procedure attendant upon such a proceeding. The parties have a right to waive a jury as in a common-law action, or to demur to the evidence, and a judgment of the court without a jury in such cases is not an invasion of the right of the trial by jury. Culpeper Nat'l Bank v. Morris, 168 Va. 379 , 191 S.E. 764 (1937). See also Ford v. Gardner, 11 Va. (1 Hen. & M.) 72 (1806); Penn v. Ingles, 82 Va. 65 (1886); Hartman v. Strickler, 82 Va. 225 (1886); Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 (1909).

Jurisdiction is limited to trial of single issue. - When a bill to impeach a will is filed under this section the jurisdiction of the court is limited to try the single issue, devisavit vel non, and when that issue has been duly determined, the jurisdiction of the court in such suit is ended. Potts v. Flippen, 171 Va. 52 , 197 S.E. 422 (1938), cert. denied, 305 U.S. 662, 59 S. Ct. 364, 83 L. Ed. 429 (1939).

But this section does not set exact terms thereof. - This section was not intended to make hard and fast the exact terms in which an issue devisavit vel non should be framed. Where a will is assaulted and defended as a whole, and there is no suggestion from any source that the will may be void in part and valid as to other parts, in framing an issue under this section it is sufficient to direct the jury to ascertain whether a given paper, purporting to be the last will and testament of the testator, is the true last will and testament of the testator. It is not necessary to go further and enquire whether any part of the paper is his will. Rowland v. Rowland, 104 Va. 673 , 52 S.E. 366 (1905).

Procedure is substantially the same as in common-law actions. - Upon the trial of an issue devisavit vel non, under this section, the mode of proceeding is substantially the same as upon the trial of common-law actions, and a demurrer to the evidence in such case is not an invasion of the jury in the trial of such issues. The jury are not the judges of the law in such cases, and the language of the section, "a trial by a jury shall be ordered," only means a jury trial accompanied by all the incidents and mode of procedure attendant upon such a proceeding. The word "shall" in the sentence quoted does not prevent a waiver of trial by a jury, but is to be construed in the sense of "may." Meade v. Meade, 111 Va. 451 , 69 S.E. 330 (1910). See Queensbury v. Vial, 123 Va. 219 , 96 S.E. 173 (1918).

Jury may pass on all testamentary papers of testator. - The obvious purpose of the legislature was to permit the jury, under either this section or § 64.1-83, to pass upon all testamentary papers of the testator, whether admitted to probate or not. In re Will of Bentley, 175 Va. 456 , 9 S.E.2d 308 (1940).

Burden on propounder. - The onus is upon the propounder to establish the fact that the paper propounded is what it purports to be. Brown v. Hall, 85 Va. 146 , 7 S.E. 182 (1888).

When a will is admitted to probate under § 64.1-77 or § 64.1-85 and a person interested, who was not a party to the proceedings, files a bill in equity under the provisions of this section to impeach the will on an issue devisavit vel non, the burden is on the propounder, on the trial of such issue, to prove the due execution of the will and the competency of the testator as if there had been no probate thereof. Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 (1933).

Jury has no greater powers than under § 64.1-83. - There is no reason why a jury trying the issue under this section should be invested with other or greater powers than a jury trying the issue provided by § 64.1-83. Meade v. Meade, 111 Va. 451 , 69 S.E. 330 (1910).

Verdict is generally binding on court. - In ordering an issue devisavit vel non, the chancellor does not exercise any of the ordinary powers of a chancery court, but acts in obedience to the express mandate of this section; the object of the issue being to ascertain, by means of a jury trial, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. When that question is decided the function of the suit is exhausted, and the verdict is binding upon the court, unless for good cause shown it is set aside, either at the trial or afterwards, on a bill of review. Hartman v. Strickler, 82 Va. 225 (1886). See Kirby v. Kirby, 84 Va. 627 , 5 S.E. 539 (1888).

But legislature did not intend to confer probate jurisdiction on jury. - Other provisions of this chapter, when read in connection with this section, show that the legislature did not intend to confer probate jurisdiction upon a jury and not upon the judge who presides at the trial of the issue. Meade v. Meade, 111 Va. 451 , 69 S.E. 330 (1910).

And verdict is not probate or rejection on will. - The verdict of a jury on the issue devisavit vel non, although the finding is for the validity of the writing produced for the will, is not a probate of the will, nor is the verdict finding against the validity of the writing a final determination of its rejection for probate. The return of a verdict by a jury and the verdict itself are incidents in the progress of the trial to test the validity of the will. The finality of the validity or invalidity of the writing is the judgment of the trial court accepting or rejecting the verdict. Culpeper Nat'l Bank v. Morris, 168 Va. 379 , 191 S.E. 764 (1937).

Proceeding not collateral attack on order of probate. - An administrator d.b.n., c.t.a., instituted suit against defendants who had received the proceeds of an estate as distributees of an intestate, and the bill of complaint was founded solely on the validity of an after-discovered will probated by order under § 64.1-77. A demurrer denied its validity, and the case was heard upon that issue. This proceeding, treated by the parties as a proceeding to try an issue devisavit vel non, was substantially in compliance with this section and was not a collateral attack on the order of probate. Hall v. Brigstocke, 190 Va. 459 , 58 S.E.2d 529 (1950).

Court should not have approved a compromise agreement or directed that the decedent's estate be distributed in accordance with the agreement so approved. Such approval and direction were beyond the scope of a suit devisavit vel non. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803 (1968).

V. EFFECT OF ORDER FOR PROBATE.

Section does not provide sole means of propounding later will. - There is nothing in the language of this section which suggests that the proponent of a subsequent will must offer it for probate only in an equity suit brought to contest the will theretofore probated. In re Will of Bentley, 175 Va. 456 , 9 S.E.2d 308 (1940).

The conclusiveness of the probate of an earlier will does not preclude the probate of a later will, since the probate of the later will is not an attack on the judgment of probate of the earlier will. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531 (W.D. Va. 1966).

CIRCUIT COURT OPINIONS

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

Notice. - Although a party moved to set aside the appointment of the administrator of the estate of the decedent, because the pleadings did not establish actual notice of an attempt to probate the decedent's purported will, and actual notice would not have equated to an appearance in any event, the administrator of the estate of the decedent could proceed in the administrator's attempt to impeach the will. Pouncy v. Melvin, 105 Va. Cir. 477, 2020 Va. Cir. LEXIS 126 (Chesapeake Aug. 12, 2020).

When party is precluded from impeaching earlier will. - Where a life tenant went to the clerk's office with an executrix to offer a decedent's earlier will for probate, and wrote a check to pay the clerk's fees, he was a party to the probate proceedings and was thus precluded from attacking or impeaching that earlier will by claiming that the decedent had executed a later will. Adair v. Kuhn, 64 Va. Cir. 364, 2004 Va. Cir. LEXIS 62 (Spotsylvania County 2004).

Jurisdiction is limited to trial of single issue. - Although the daughter was correct in arguing that a trial on the issue of devisavit vel non had to conform to the provisions of § 64.1-88 and, in such a proceeding, the validity of a will was the only issue that could be tried, the children still could plead in their amended complaint that probate proceeding and their claim that the wife breached a contract to make a will for their benefit. Pleading both claims was permissible because they arose out of the same transaction or occurrence, and the children met the requirement of putting those individual causes of action in separate counts. Page v. Baker, 74 Va. Cir. 66, 2007 Va. Cir. LEXIS 291 (Roanoke County 2007).

Time limitation. - Wife's motion for reconsideration to challenge the residuary clause of the late husband's will was time barred because it was not filed within one year of the will being admitted to probate, but in any event, the husband was allowed to do what he did regarding the residuary clause. Thadani v. Malkani, 73 Va. Cir. 255, 2007 Va. Cir. LEXIS 75 (Fairfax County 2007).

§ 64.2-449. Procedure in probate proceedings.

  1. In every probate proceeding, the court or clerk may require all testamentary papers of the testator be produced and may compel the production of the will of a testator that is in the custody of any person.
  2. A summons may be served by an order of publication on any person interested in the probate of the will in accordance with § 8.01-316 .
  3. The court may appoint a guardian ad litem for any person interested in the probate of the will in accordance with § 8.01-9 .
  4. The record of the testimony given by witnesses in court on the motion to admit a will to probate and any out of court depositions of witnesses who cannot be produced at a jury trial may be admitted as evidence and given such weight as the jury deems proper.

    (Code 1950, §§ 64-77, 64-82, 64-87; 1968, c. 656, §§ 64.1-81, 64.1-86, 64.1-91; 2012, c. 614; 2015, c. 631.)

Cross references. - As to appointment of guardians ad litem generally, see § 8.01-9 .

For general statutes on orders of publication, see §§ 8.01-316 through 8.01-319 .

The 2015 amendments. - The 2015 amendment by c. 631 inserted "or clerk" following "court" in subsection A.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 4 Process. § 4.03 Methods of Serving Process. Friend.

Virginia Forms (Matthew Bender). No. 6-1001 Complaint to Impeach a Will, et seq.; No. 15-401 Checklist for Probate and Administration.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

This section applies only to the record of what has been proved or deposed "in court." It does not apply to what has been proved or deposed before a clerk. The record of what is proved or deposed means the record of what the witnesses said, not the conclusion of the clerk as to the effect of what they said. Grady v. Fauls, 189 Va. 565 , 53 S.E.2d 830 (1949).

And to jury cases. - This section applies only to cases tried by a jury. Grady v. Fauls, 189 Va. 565 , 53 S.E.2d 830 (1949).

Section admits only evidence given at first probate. - This section was intended to admit as evidence on the trial of an issue devisavit vel non "the record" of the testimony of only those witnesses who gave evidence in court at the time of the first probate, and the depositions of only those witnesses lawfully taken out of court at the first probate, who on account of death or other good cause cannot be produced at the trial of said issue. Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 (1933).

Ex parte order of probate does not shift burden of proof. - Even when the ex parte order of probate can be considered admissible as evidence under this section, the order does not shift the burden of proof, and it is still incumbent upon the propounder to introduce evidence sufficient to prove the due execution and validity of the will in dispute. Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 (1933). See Brown v. Hall, 85 Va. 146 , 7 S.E. 182 (1888).

This section does not seem to have been intended as an original and independent remedy, but merely to afford an ancillary means of facilitating the probate of wills, and it furnishes no authority to a court to require a legatee under a will, which no one is seeking to have probated, to transfer the possession thereof to its clerk merely for safekeeping. This construction of this section is manifest when read in connection with the other sections of the Code by which it is surrounded. In re Nichols, 116 Va. 949 , 83 S.E. 368 (1914).

CIRCUIT COURT OPINIONS

Notice. - Although a party moved to set aside the appointment of the administrator of the estate of the decedent, because the pleadings did not establish actual notice of an attempt to probate the decedent's purported will, and actual notice would not have equated to an appearance in any event, the administrator of the estate of the decedent could proceed in the administrator's attempt to impeach the will. Pouncy v. Melvin, 105 Va. Cir. 477, 2020 Va. Cir. LEXIS 126 (Chesapeake Aug. 12, 2020).

§ 64.2-450. Probate of copy of will proved outside the Commonwealth; authenticated copy.

When a will relative to an estate within the Commonwealth has been proved in another jurisdiction, an authenticated copy of the will and the certificate of probate of the will may be offered for probate in the Commonwealth, and there shall be a rebuttable presumption that the will was duly executed and admitted to probate as a will of personal estate in the jurisdiction of the testator's domicile and the circuit court, or the clerk of such court, where it is offered shall admit such copy to probate as a will of personal estate in the Commonwealth. If such copy indicates that the will was admitted to probate in a court of another jurisdiction and was so executed as to be a valid will of real estate in the Commonwealth by the law of the Commonwealth, such copy may be admitted to probate as a will of real estate. An authenticated copy of any will which has been self-proved under the laws of another state shall, when offered with its authenticated certificate of probate, be admitted to probate as a will of personal estate and real estate.

(Code 1950, § 64-88; 1968, c. 656, § 64.1-92; 1977, c. 249; 1980, c. 264; 2012, c. 614.)

Law review. - For survey of Virginia law on trusts and estates for the year 1976-77, see 63 Va. L. Rev. 1503 (1977). For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981).

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Due authentication of copy is determined by admission to probate. - The fact of the due authentication of the copy is determined by its admission to probate, and this determination is conclusive on all persons and all courts until it is reversed in some appropriate proceeding. It cannot be collaterally assailed. Bryan v. Nash, 110 Va. 329 , 66 S.E. 69 (1909).

A probate court is authorized to determine where a decedent was domiciled at his death when the proceeding is initiated under § 64.1-75. French v. Short, 207 Va. 548 , 151 S.E.2d 354 (1966).

A Virginia probate court may determine domicile when proceeding under this section, even though this section does not expressly confer jurisdiction upon the court to make that determination. French v. Short, 207 Va. 548 , 151 S.E.2d 354 (1966).

And it is not required to probate will proved in another state if decedent was not domiciled therein. - This section does not require a Virginia court to probate a will, even as to personalty, on the basis of an order of probate entered by the court of another state, if the Virginia court should determine from the evidence adduced before it that the decedent was not domiciled in that other state. French v. Short, 207 Va. 548 , 151 S.E.2d 354 (1966).

§ 64.2-451. Appointment of curator; when made; his duties.

The court or the clerk of such court, or his duly qualified deputy, may appoint a curator of the estate of a decedent during a contest about the decedent's will, during the infancy or in the absence of an executor, or until administration of the estate be granted and may require the curator to give a bond in a reasonable penalty. The curator shall ensure that the estate is not wasted before the qualification of an executor or administrator, or before such estate lawfully comes into possession of such executor or administrator. The curator may demand, sue for, recover, and receive the decedent's personal estate and all debts due to the testator. The curator may lease or receive the rents and profits of any real estate that the decedent possessed when he died. The curator shall pay debts, to the extent that there are sufficient assets to do so in the order of payment prescribed by law, and may be sued in the same manner as an executor or administrator. Upon the qualification of an executor or administrator, the curator shall account for and pay and deliver to him such estate as he controls or may be liable for.

(Code 1950, § 64-89; 1968, c. 656, § 64.1-93; 2012, c. 614.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties - Various Actions. Friend.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 341.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Receiver as curator. - An order of a court of chancery appointed a receiver of an estate pending litigation over a will, will be treated as an appointment of a curator under this section, when it appears that the appointment was made after notice, upon a bill supported by affidavit, the allegations of which are not denied by pleading, affidavit, or otherwise. McCurdy v. Smith, 107 Va. 757 , 60 S.E. 78 (1908).

Administrator de bonis non with will annexed may maintain suit against the curator and his sureties, to hold them liable for malfeasance. Helsley v. Craig's Adm'r, 74 Va. (33 Gratt.) 716 (1880).

§ 64.2-452. How will may be made self-proved; affidavits of witnesses.

A will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of the Commonwealth or the laws of the state where acknowledgment occurred, or before an officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed, and evidenced by the officer's certificate, attached or annexed to the will. The officer's certificate shall be substantially as follows in form and content: STATE OF VIRGINIA COUNTY/CITY OF ............ Before me, the undersigned authority, on this day personally appeared ........, ........, and ......., known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, ......, the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of said will, and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory. .................... Testator .................... Witness .................... Witness Subscribed, sworn and acknowledged before me by .........., the testator, and subscribed and sworn before me by ................ and .........., witnesses, this .... day of ........, A.D., ...... SIGNED .................... .................... (OFFICIAL CAPACITY OF OFFICER)

The affidavits of any such witnesses taken as provided by this section, whenever made, shall be accepted by the court as if it had been taken ore tenus before such court, notwithstanding that the officer did not attach or affix his official seal thereto. Any codicil that is self-proved under the provisions of this section that, by its terms, expressly confirms, ratifies, and republishes a will except as altered by the codicil shall have the effect of self-proving the will whether or not the will was so executed originally.

(1972, c. 116, § 64.1-87.1; 1977, c. 333; 1979, c. 322; 1983, c. 83; 1985, c. 429; 1986, c. 524; 1990, c. 64; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1971-1972, see 58 Va. L. Rev. 1363 (1972); for the year 1978-1979, see 66 Va. L. Rev. 375 (1980); for the year 1985, see 19 U. Rich. L. Rev. 779 (1985).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

CIRCUIT COURT OPINIONS

Will properly executed. - Where the decedent's will was self-proved through a clause contained in the will that substantially complied with the requirements of § 64.1-87.1 and where the other formalities of execution were satisfied, the trial court was satisfied by a preponderance of the evidence that the will was properly executed in compliance with the statutory requirements. Rudwick v. Lloyd, 69 Va. Cir. 139, 2005 Va. Cir. LEXIS 319 (Arlington County 2005)(decided under prior law).

§ 64.2-453. How will may be made self-proved; acknowledgment of witnesses.

A will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment thereof by the testator and the attesting witnesses, each made before an officer authorized to administer oaths under the laws of the Commonwealth or the laws of the state where the acknowledgment occurred, or before an officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed, and evidenced by the officer's certificate, attached or annexed to the will. The officer's certificate shall be substantially as follows in form and content: STATE OF VIRGINIA CITY/COUNTY OF ............ Before me, the undersigned authority, on this day personally appeared .........., .........., and .........., known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, .........., the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of said will, and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory. Sworn and acknowledged before me by ........, the testator, and ......... and .........., witnesses, this .... day of ........ A.D., ....... SIGNED .................... .................... (OFFICIAL CAPACITY OF OFFICER)

Any codicil that is self-proved under the provisions of this section that, by its terms, expressly confirms, ratifies, and republishes a will except as altered by the codicil shall have the effect of self-proving the will whether or not the will was so executed originally.

(1983, c. 83, § 64.1-87.2; 1985, c. 429; 1990, c. 64; 2012, c. 614.)

Law review. - For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

§ 64.2-454. Appointment of administrator for prosecution of action for personal injury or wrongful death against or on behalf of estate of deceased resident or nonresident.

An administrator may be appointed in any case in which it is represented that either a civil action for personal injury or death by wrongful act, or both, arising within the Commonwealth is contemplated against or on behalf of the estate or the beneficiaries of the estate of a resident or nonresident of the Commonwealth who has died within or outside the Commonwealth if at least 60 days have elapsed since the decedent's death and an executor or administrator of the estate has not been appointed under § 64.2-500 or 64.2-502 , solely for the purpose of prosecution or defense of any such actions, by the clerk of the circuit court in the county or city in which jurisdiction and venue would have been properly laid for such actions if the person for whom the appointment is sought had survived. An administrator appointed pursuant to this section may prosecute actions for both personal injury and death by wrongful act.

If a fiduciary has been appointed in a foreign jurisdiction, the fiduciary may qualify as administrator. The appointment of a fiduciary in a foreign jurisdiction shall not preclude a resident or nonresident from qualifying as an administrator for the purposes of maintaining a wrongful death action pursuant to § 8.01-50 or a personal injury action in the Commonwealth.

A resident and nonresident may be appointed as coadministrators.

(1970, c. 475, § 64.1-75.1; 2001, c. 376; 2003, c. 265; 2012, c. 614; 2014, c. 528; 2015, cc. 124, 129, 130.)

The 2014 amendments. - The 2014 amendment by c. 528 added the last two paragraphs.

The 2015 amendments. - The 2015 amendment by c. 124 inserted "at least 60 days have elapsed since the decedent's death and," "or administrator" and "under § 64.2-500 or 64.2-502 " in the first paragraph.

The 2015 amendments by cc. 129 and 130 are identical, and inserted "either" and "or both" and substituted "or defense of any such actions" for "of such action" and "actions" for "action" in the first sentence and added the second sentence in the first paragraph.

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties - Various Actions. Friend.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 12 Grant of Administration. § 12.12 Administrator for Suit Purposes Only, et seq. Cox.

Virginia Forms (Matthew Bender). No. 1-107. Style and Commencement of Action by an Executor, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 12, 304.

CASE NOTES

Clerk not required to enlarge requested authorization. - Nothing in the language of § 64.1-75.1 required a clerk to authorize an estate administrator to bring both a wrongful death and a survival action where the request was made solely an appointment to bring a wrongful death action. Antisdel v. Ashby, 279 Va. 42 , 688 S.E.2d 163 (2010)(decided under prior law).

Article 6. Recordation and Effect.

§ 64.2-455. Wills to be recorded; recording copies; effect; transfer to The Library of Virginia.

  1. Every will or authenticated copy admitted to probate by any circuit court or clerk of any circuit court shall be recorded by the clerk and remain in the clerk's office, except during such time as the same may be carried to another court under a subpoena duces tecum or as otherwise provided in § 17.1-213 . A certified copy of such will or of any authenticated copy may be recorded in any county or city wherein there is any estate, real or personal, devised or bequeathed by such will.
  2. The personal representative of the testator shall cause a certified copy of any will or of any authenticated copy so admitted to record to be recorded in any county or city wherein there is any real estate of which the testator possessed at the time of his death or that is devised by his will.
  3. Every will or certified copy when recorded shall have the effect of notice to all persons of any devise or disposal by the will of real estate situated in a county or city in which such will or copy is so recorded.
  4. With the approval of the judges of a circuit court of any county or city, the clerk of such court may transfer such original wills from his office to the Archives Division of The Library of Virginia. A copy of any will that has been microfilmed or stored in an electronic medium, prepared from such microfilmed or electronic record and certified as authentic by the clerk or his designee, shall constitute a certified copy of the will for any purpose arising under this title for which a certified copy of the will is required.

    (Code 1950, § 64-90; 1964, c. 169; 1966, c. 254; 1968, c. 656, § 64.1-94; 1978, c. 366; 1994, c. 64; 2001, c. 836; 2002, c. 832; 2012, c. 614.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

Michie's Jurisprudence. - For related discussion, see 15 M.J. Recording Acts, § 6.

§ 64.2-456. Bona fide purchaser of real estate without notice of devise protected.

The title of a bona fide purchaser without notice from the heir at law of a person who has died heretofore, or who may die hereafter, having title to any real estate of inheritance in the Commonwealth, shall not be affected by a devise of such real estate made by the decedent, unless within one year after the testator's death the will devising the same or, if such will has been probated outside of the Commonwealth, an authenticated copy thereof and the certificate of probate shall be filed for probate before the court or clerk having jurisdiction for that purpose and shall afterwards be admitted to probate and recorded in the proper court or clerk's office as a will of real estate.

(Code 1950, § 64-91; 1968, c. 656, § 64.1-95; 2012, c. 614.)

Law review. - For article, "The Virginia Land Trust - An Overlooked Title Holding Device for Investment, Business and Estate Planning Purposes," see 30 Wash. & Lee L. Rev. 73 (1973).

Research References. - Virginia Forms (Matthew Bender). No. 16-513. Deed by Executor, et seq.; No. 16-2006. Indemnity and Escrow Agreement for Sale of Real Estate by Heirs of Intestate Decedent.

CASE NOTES

Section does not protect purchaser of personalty. - There is no provision of statute in favor of or saving any rights of persons taking personal property under an unknown and unrecorded will, as against distributees, as there is of the rights of persons taking real estate under an unknown and unrecorded will. By this section, such a saving of rights in real estate is made for a period of seven years (now one year). Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919)(decided under prior law).

Purchaser entitled to protection absent record notice and information putting prudent person on inquiry. - Where the clerk's records were silent and the purchaser could not be charged with any knowledge imputed from them and there is no evidence that the purchaser possessed any information which would put a prudent person on inquiry as to the existence of any flaw in the apparent devolution of title to the seller by intestate succession, the purchaser was entitled to the protection of this section. Cheatham v. Gregory, 227 Va. 1 , 313 S.E.2d 368 (1984)(decided under prior law).

Checking of records does not imply advance knowledge of what might be disclosed. - The fact that the purchaser checked the land records, on his attorney's advice, to ascertain whether a will was filed, gives rise to no inference that he had reason to believe such a will existed. A check of the land records before recording a deed is an act of simple prudence customary among lawyers. It is a neutral fact which furnishes no basis for an inference that the examiner either has, or lacks, advance knowledge of the facts such an examination might disclose. Cheatham v. Gregory, 227 Va. 1 , 313 S.E.2d 368 (1984)(decided under prior law).

Purchaser need only pay value. - A purchaser seeking the protection of the recording acts is not required to pay "fair and adequate" consideration. The statute applies if he simply has paid value. Cheatham v. Gregory, 227 Va. 1 , 313 S.E.2d 368 (1984)(decided under prior law).

§ 64.2-457. Bona fide purchaser of real estate without notice of devise protected; later will.

The title of a bona fide purchaser without notice from the devisee, or from the personal representative with power to sell, encumber, lease, or exchange, under the will of a person who has died heretofore, or may die hereafter, having title to any real estate of inheritance in the Commonwealth, shall not be affected by any other devise of such real estate made by the testator in another will, unless within one year after the testator's death such other will or, if such other will has been probated outside of the Commonwealth, an authenticated copy thereof and the certificate of probate shall be filed for probate before the court or clerk having jurisdiction for that purpose and shall afterwards be admitted to probate and recorded in the proper court or clerk's office as a will of real estate.

(Code 1950, § 64-92; 1968, c. 656, § 64.1-96; 2012, c. 614.)

Law review. - For article, "The Virginia Land Trust - An Overlooked Title Holding Device for Investment, Business and Estate Planning Purposes," see 30 Wash. & Lee L. Rev. 73 (1973).

Research References. - Virginia Forms (Matthew Bender). No. 15-462 Show Cause Against Distribution, et seq.; No. 16-513 Deed by Executor, et seq.; No. 16-2006 Indemnity and Escrow Agreement for Sale of Real Estate by Heirs of Intestate Decedent, et seq.

§ 64.2-458. Bona fide purchaser of real estate without notice of devise protected; intestacy.

The title of a bona fide purchaser without notice from the devisee, or from the personal representative with power to sell, encumber, lease, or exchange, under the will of a person who has died heretofore, or may die hereafter, having title to any real estate of inheritance in the Commonwealth, shall not be affected by the later impeachment of the testator's will that results in intestacy, unless within one year after the testator's death a complaint is filed before the court having jurisdiction for that purpose.

(1991, c. 197, § 64.1-96.1; 2012, c. 614.)

Law review. - For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).

Research References. - Virginia Forms (Matthew Bender). No. 16-512 Deed by Heirs, et seq.; No. 16-2006 Indemnity and Escrow Agreement for Sale of Real Estate by Heirs of Intestate Decedent, et seq.

Chapter 5. Personal Representatives and Administration of Estates.

Appointment and Qualification.

List of Heirs and Affidavit of Real Estate.

Authority and General Duties.

Power with Respect to Real Estate.

Liability of Personal Estate to Debts.

Liability of Real Estate to Debts.

Apportionment of Estate Taxes.

Liability of Representatives; Administrators de Bonis Non.

Settlement of Accounts and Distribution.

Article 1. Appointment and Qualification.

§ 64.2-500. Grant of administration with the will annexed.

  1. If the will does not name an executor, or the executor named refuses to accept, fails to give bond, or dies, resigns, or is removed from office, the court or clerk may grant administration with the will annexed to a person who is a residual or substantial legatee under the will, or his designee, or if such person fails to apply for administration within 30 days, to a person who would have been entitled to administration if there had been no will.
  2. Administration shall not be granted to any person unless he takes the required oath and gives bond, and the court or clerk is satisfied that he is suitable and competent to perform the duties of his office. Administration shall not be granted to any person under a disability as defined in § 8.01-2 .
  3. If any beneficiary of the estate objects, a spouse or parent who has been barred from all interest in the estate because of desertion or abandonment as provided under § 64.2-308 or 64.2-308.17 , as applicable, may not serve as an administrator of the estate. (Code 1950, § 64-112; 1968, c. 656, § 64.1-116; 1979, c. 323; 2000, c. 321; 2012, c. 614; 2016, cc. 187, 269.)

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "or 64.2-308.17 , as applicable," in subsection C.

Law review. - For survey of Virginia law on trusts and estates for the year 1978-1979, see 66 Va. L. Rev. 375 (1980). For article, "Justice and Efficiency Under a Model of Estate Settlement," see 66 Va. L. Rev. 727 (1980). For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties - Various Actions. Friend.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 12 Grant of Administration. § 12.04 Administrators, et seq. Cox.

Virginia Forms (Matthew Bender). No. 15-101 Checklist for Will Interview, et seq.; No. 15-201 Preamble to Will, et seq; No. 15-401 Checklist for Probate and Administration, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 1, 12.1, 335.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Renunciation may be made expressly or impliedly. - The renunciation of an executorship may not only be made expressly, but may also be implied from the acts or conduct of the executor, such as refusing or neglecting to qualify. Thornton v. Winston, 31 Va. (4 Leigh) 152 (1833). See Geddy v. Butler, 17 Va. (3 Munf.) 345 (1812); Nelson v. Carrington, 18 Va. (4 Munf.) 332 (1813); Burnley's Adm'r v. Duke, 22 Va. (1 Rand.) 108 (1822); Thompsons v. Meek, 34 Va. (7 Leigh) 419 (1836).

As to what acts will amount to a virtual renunciation of an executorship, see Burnley's Adm'r v. Duke, 22 Va. (1 Rand.) 108 (1822).

It need not be by matter of record. - The renunciation of the executorship need not be by matter of record. Geddy v. Butler, 17 Va. (3 Munf.) 345 (1812); Thornton v. Winston, 31 Va. (4 Leigh) 152 (1833); Thompsons v. Meek, 34 Va. (7 Leigh) 419 (1836).

And may be proved by parol evidence. - If the grant of administration with the will annexed is alleged to be irregular upon the ground that the executor had not renounced, the fact of such renunciation may be established by parol evidence. Thompsons v. Meek, 34 Va. (7 Leigh) 419 (1836).

Administrator once appointed can be removed only for cause. - Under this section and § 64.1-118 a distributee who applies for administration and is appointed and qualifies can only be removed for cause, and the same principle applies to an appointee in whose favor a distributee waives his right to qualify. When the appointment, either of a distributee or of some other person designated by him, has been made and the appointee has qualified, the power of the court or clerk is exhausted and no further appointment can be made until a vacancy occurs in the office in some way recognized by law. Beavers v. Beavers, 185 Va. 418 , 39 S.E.2d 288 (1946).

CIRCUIT COURT OPINIONS

Statute of limitations not tolled where plaintiff not qualified as personal representative. - Plaintiff parents did not qualify as the personal representatives of their deceased child's estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation's plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law which required the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County 2005) (decided under prior law).

§ 64.2-501. Oath of executor or administrator with the will annexed.

An executor or administrator with the will annexed shall take an oath that the writing admitted to record contains the true last will of the decedent, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. Such oath may be taken on behalf of a corporation by its president, vice-president, secretary, treasurer, or trust officer.

(Code 1950, § 64-113; 1968, c. 656, § 64.1-117; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 31.

§ 64.2-502. Grant of administration of intestate estate.

  1. The court or the clerk who would have jurisdiction as to the probate of a will, if there were a will, has jurisdiction to hear and determine the right of administration of the estate in the case of a person dying intestate. Administration shall be granted as follows:
    1. During the first 30 days following the decedent's death, the court or the clerk may grant administration to a sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.
    2. After 30 days have passed since the decedent's death, the court or the clerk may grant administration to the first distributee, or his designee, who applies, provided, that if, during the first 30 days following the decedent's death, more than one distributee notifies the court or the clerk of an intent to qualify after the 30-day period has elapsed, the court or the clerk shall not grant administration to any distributee, or his designee, until the court or the clerk has given all such distributees an opportunity to be heard.
    3. After 45 days have passed since the decedent's death, the court or the clerk may grant administration to any nonprofit charitable organization that operated as a conservator or guardian for the decedent at the time of his death if such organization certifies that it has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of its intention to apply for administration at least 30 days before such application, or, that it has not been able to find any address for such distributee. However, if, during the first 45 days following the decedent's death, any distributee notifies the court or the clerk of an intent to qualify after the 45-day period has elapsed, the court or the clerk shall not grant administration to any such organization until the court or the clerk has given all such distributees an opportunity to be heard. Qualification of such nonprofit charitable organization is not subject to challenge on account of the failure to make the certification required by this subdivision.
    4. After 60 days have passed since the decedent's death, the court or the clerk may grant administration to one or more of the creditors or to any other person, provided such creditor or person other than a distributee certifies that he has made a diligent search to find an address for any sole distributee and has sent notice by certified mail to the last known address of any such distributee of his intention to apply for administration at least 30 days before such application, or that he has not been able to find any address for such distributee. Qualification of a creditor or person other than a distributee is not subject to challenge on account of the failure to make the certification required by this subdivision.
  2. When granting administration, if the court determines that it is in the best interests of a decedent's estate, the court may depart from the provisions of this section at any time and grant administration to such person as the court deems appropriate.
  3. The court or clerk may admit to probate a will of the decedent after a grant of administration. If administration has been granted to a creditor or person other than a distributee, the court or clerk may grant administration to a distributee who applies for administration and who has not previously been refused administration after reasonable notice has been given to such creditor or other person previously granted administration. Admission of a will to probate or the grant of administration pursuant to this subsection terminates any previous grant of administration.
  4. The court or clerk shall not grant administration to any person unless satisfied that he is suitable and competent to perform the duties of his office. The clerk shall require such person to sign under oath that such person is not under a disability as defined in § 8.01-2 or, regardless of whether his civil rights have been restored, has not been convicted of a felony offense of (i) fraud or misrepresentation or (ii) robbery, extortion, burglary, larceny, embezzlement, fraudulent conversion, perjury, bribery, treason, or racketeering. However, if the person convicted of such felony offense is the sole distributee of the estate, then the court or clerk may grant administration to such person if he is otherwise suitable and competent to perform the duties of his office.
  5. If any beneficiary of the estate objects, a spouse or parent who has been barred from all interest in the estate because of desertion or abandonment as provided under § 64.2-308 or 64.2-308.17 , as applicable, may not serve as an administrator of the estate of the deceased spouse or child. (Code 1950, §§ 64-114, 64-115; 1968, c. 656, §§ 64.1-118, 64.1-119; 1978, c. 483; 2000, c. 321; 2002, c. 197; 2006, c. 724; 2012, c. 614; 2015, c. 551; 2016, cc. 187, 269.)

The 2015 amendments. - The 2015 amendment by c. 551 in subsection D, substituted "The clerk shall require such person to sign under oath that such person is not" for "Administration shall not be granted to any person" and inserted "or, regardless of whether his civil rights have been restored, has not been convicted of a felony offense of" and added clauses (i) and (ii) and added the third sentence.

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "or 64.2-308.17 , as applicable," in subsection E.

Law review. - For article, "Justice and Efficiency Under a Model of Estate Settlement," see 66 Va. L. Rev. 727 (1980). For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

Research References. - Virginia Forms (Matthew Bender). No. 15-441. Certificate/Letter of Qualification, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 12, 12.2, 18.

CASE NOTES

I. JURISDICTION AND VENUE.

Editor's note. - The cases below were decided under prior law.

Letters granted without jurisdiction are voidable only. - Letters of administration granted by a court having no jurisdiction to grant them are merely voidable. If the letters were granted by a court having general jurisdiction of the subject matter, a party affected by its action cannot be permitted in any collateral proceeding to show that the court has come to an erroneous conclusion. Schultz v. Schultz, 51 Va. (10 Gratt.) 358 (1853), overruling Ex parte Barker, 29 Va. (2 Leigh) 719 (1830).

Court appointing administrator has exclusive jurisdiction to appoint administrator d.b.n. - When administration of a decedent's estate has been duly granted by any court of competent jurisdiction, that same court only, upon the death of the administrator, has the jurisdiction to grant administrator de bonis non. Ex parte Lyons, 29 Va. (2 Leigh) 761 (1830).

Circuit court orders not subject to collateral attack. - A circuit court is a court of general jurisdiction regarding probate and the grant of administration of estates and even if it errs in taking jurisdiction in a particular case, the order generally is not void, but only voidable and cannot be questioned in any collateral proceeding. Bolling v. D'Amato, 259 Va. 299 , 526 S.E.2d 257 (2000).

Domicile of decedent. - Where one owned land in both of two counties, was employed, voted, and paid taxes in one of them, while retaining a room in a house on his property in the other county for use over the weekends, and where he terminated his employment five months before his death expecting to spend his remaining days in the other county, even though he was prevented from doing so by illness and the directions of his physician, the latter county had jurisdiction to appoint an administrator under this section and § 64.1-77. Wilkinson v. Spiller, 143 Va. 267 , 129 S.E. 235 (1925).

Administration granted where the deceased lived and died out of the State, and left no estate within it, is not void, but only voidable. Andrews v. Avory, 55 Va. (14 Gratt.) 229 (1858). See Fisher v. Bassett, 36 Va. (9 Leigh) 119 (1837).

Nonresident decedent having claim against Commonwealth. - A resident of Kentucky died intestate there, having no estate in Virginia but a claim on this Commonwealth for money. It was held that the circuit court of Henrico County, wherein is the seat of government, has jurisdiction to grant administration of such decedent's estate. Commonwealth v. Hudgin, 29 Va. (2 Leigh) 248 (1830).

II. WHO MAY BE APPOINTED.

Nonresident may be appointed. Ex parte Barker, 29 Va. (2 Leigh) 719 (1830), overruled on other grounds, Schultz v. Schultz, 51 Va. (10 Gratt.) 358 (1853).

Application for appointment. - To qualify as the personal representative or administrator of an intestate decedent's estate, the person seeking to act as such must apply to the appropriate circuit court; "administration shall be granted to the distributees who apply therefor, preferring first the husband or wife." NAACP Labor Comm. v. Laborers' Int'l Union, 902 F. Supp. 688 (W.D. Va. 1995) (decided prior to 2002 amendment).

III. ORDER OF APPOINTMENT.
A. IN GENERAL.

This section recognizes two classes of persons as eligible to appointment as administrators: (1) distributees or their designees, and (2) creditors or any other person after the expiration of thirty days from the death of the intestate. The provision of § 64.1-119 which allows a distributee, upon mere notice, to displace "a creditor or other person than a distributee" applies only to persons of the second class above mentioned, and not to a distributee or his designee. Tompkins v. Poff, 120 Va. 162 , 90 S.E. 630 (1916).

Person entitled to estate is entitled to administration. - The person entitled to the estate of a decedent is entitled to the administration. Chichester's Ex'r v. Vass's Adm'r, 15 Va. (1 Munf.) 98 (1810); Hendren v. Colgin, 18 Va. (4 Munf.) 231 (1814); Thornton v. Winston, 31 Va. (4 Leigh) 152 (1833). See Cutchin v. Wilkinson, 5 Va. (1 Call) 1 (1797).

B. DISTRIBUTEES.
1. WIDOWER OR WIDOW.

Widow and only child of decedent. - Where the widow and only child of decedent applied for the appointment of an administrator, it was held that either or both of them were entitled, under this section, to apply for the appointment of the administrator. Cornwall v. Cornwall, 160 Va. 183 , 168 S.E. 439 (1933).

Husband must apply to qualify. - Although husband was preferred by statute for appointment as administrator of wife's estate, he had to apply to qualify as administrator. Prudential Ins. Co. of Am. v. Stephens, 498 F. Supp. 155 (E.D. Va. 1980) (decided prior to 2002 amendment).

When blood relations preferred to husband. - Where the personal property of the wife is so settled, by a deed executed before the marriage, and duly recorded, that, upon her dying intestate in her husband's lifetime, the trustee is to convey the same to her legal heirs, her nearest blood relation is entitled to the administration of her estate in preference to her husband. Bray v. Dudgeon, 20 Va. (6 Munf.) 132 (1818).

When husband or wife has relinquished marital rights. - If the husband has relinquished his marital rights to his wife's property, he is not entitled to administration upon her estate. Charles v. Charles, 49 Va. (8 Gratt.) 486 (1852).

Plaintiff in error by an antenuptial settlement relinquished all her marital rights to her husband's property; therefore, unless and until the settlement was cancelled and annulled, neither she nor any other person designated by her, had the right of administration of his estate under this section. Gooch v. Suhor, 121 Va. 35 , 92 S.E. 843 (1917). See Charles v. Charles, 49 Va. (8 Gratt.) 486 (1852); Smith v. Lurty, 107 Va. 548 , 59 S.E. 403 (1907); Tompkins v. Poff, 120 Va. 162 , 90 S.E. 630 (1916).

When widow is hostile to principal devisee. - This section does not confer the right to qualify as administratrix upon a widow where it appears that she is hostile to, and not on speaking terms with, the principal devisee and legatee under the will, is litigating with the curator of her husband's estate, and is asserting title to property which the husband attempted to dispose of by his will. Smith v. Lurty, 107 Va. 548 , 59 S.E. 403 (1907).

2. OTHER DISTRIBUTEES.

By statute it is provided that administration shall be granted to the distributees who apply therefor. Cutchin v. Wilkinson, 5 Va. (1 Call) 1 (1797); Haxall v. Lee, 29 Va. (2 Leigh) 267 (1830); Thornton v. Winston, 31 Va. (4 Leigh) 152 (1833).

Word "distributees" does not embrace legatees and devisees. - The word "distributees," as used in this section, means those who would be entitled under the statute of distribution to the personal estate of the decedent if he had died intestate, and does not embrace legatees and devisees. Smith v. Lurty, 107 Va. 548 , 59 S.E. 403 (1907).

Distributee is entitled to preference over creditor. - Where a distributee and a creditor apply for administration at the same time, the distributee is entitled to preference, and the court has no discretion to choose between them. Haxall v. Lee, 29 Va. (2 Leigh) 267 (1830).

Devisees who would have been distributees had decedent died intestate. - Sons of a testator, although devisees and not legatees under his will, would have been his distributees had the testator died intestate, and hence by the terms of this section and § 64.1-116 are entitled to apply for administration with the will of the father annexed, no executor having been named in the will, and consequently may "at any time waive their right in favor of any other person." Tompkins v. Poff, 120 Va. 162 , 90 S.E. 630 (1916).

Right to appointment as administrator c.t.a. - Where the executor of a will refuses to qualify, the right of administration is conferred upon the decedent's distributees by this section and § 64.1-116, and they are allowed to waive it in favor of any other person to be designated by them; and when the distributees have designated such a person a legatee and devisee who is not a distributee has no right to qualify or to designate who shall. Smith v. Lurty, 107 Va. 548 , 59 S.E. 403 (1907).

Right to waive appointment in favor of designated person. - By reading this section and § 64.1-116 together it is clear that a distributee who applies for administration and is appointed and qualifies can only be removed for cause; and the same principle applies to an appointee in whose favor a distributee waives his right to qualify. By substitution such person is clothed with all the rights of the distributee and occupies the same plane. When therefore the appointment, either of a distributee or of some other person designated by him, has been made and the appointee has qualified, the power of the court or clerk is exhausted, and no further appointment can be made until a vacancy occurs in the office in some way recognized by law. Tompkins v. Poff, 120 Va. 162 , 90 S.E. 630 (1916).

Recognizing preferable right of widow is not waiver by distributee. - Distributees who recognize the preferable right of the widow to qualify, if the court deems her a proper person, do not thereby waive their right to qualify, or to designate who shall, in the event the court denies the application of the widow to qualify. Smith v. Lurty, 107 Va. 548 , 59 S.E. 403 (1907).

C. CREDITORS AND OTHER PERSONS.

A creditor has no preference over any other person in an application for administration upon an intestate's estate, but every case must depend upon its own circumstances. M'Candlish v. Hopkins, 10 Va. (6 Call) 208 (1814).

Term "any other person" must necessarily have some limitation, and this is to be found only in the sound discretion of the court to which must be referred the fitness or suitability of the party applying, and the time and circumstances of his application. Hutcheson v. Priddy, 53 Va. (12 Gratt.) 85 (1855).

Executors of deceased administratrix. - It seems that where a widow who administers upon the estate of her deceased husband dies, the executors of the widow upon due application will be entitled to have the estate of the husband which has not been administered committed to them. Cutchin v. Wilkinson, 5 Va. (1 Call) 1 (1797). See also Hendren v. Colgin, 18 Va. (4 Munf.) 231 (1814).

Appointee where husband administers on estate of wife and dies. - B. died intestate, leaving a widow and three children; the children died infants and intestate, in the lifetime of their mother; the widow administered on the estate, and died leaving a will appointing executors. The brother of the widow was adjudged entitled to the administration de bonis non of the husband, in preference to B.'s brother. But, it seems, had the executors of the widow applied, the administration would have been committed to them. Cutchin v. Wilkinson, 5 Va. (1 Call) 1 (1797). See also Hendren v. Colgin, 18 Va. (4 Munf.) 231 (1814).

Renunciation of executor cannot be retracted. - An executrix declined to qualify as such, and agreed that administration with the will annexed should be granted to her daughter, reserving her right to qualify after her daughter's death. It was held that this renunciation of the executorship was absolute and perpetual, and could not be retracted after the death of the administratrix, nor did the nomination of the executrix in the will, give her any preferable right to the administration de bonis non with the will annexed. Thornton v. Winston, 31 Va. (4 Leigh) 152 (1833).

IV. WAIVER OF PREFERENCE.

No fraud without injury. - Where plaintiff's husband died intestate, survived by plaintiff and two minor children, and plaintiff waived her right to preference under this section in favor of defendant in return for his promise to pay the debts of decedent and pay over the assets of the estate to the children, both claims of actual fraud by the plaintiff were dismissed because plaintiff was not damaged by the alleged fraudulent misrepresentations. Law v. Law, 922 F. Supp. 1106 (E.D. Va. 1996).

CIRCUIT COURT OPINIONS

Husband could be appointed. - Husband could be the administrator of a decedent's estate because a certified copy of the marriage between the husband and decedent was admitted into evidence, and it created a presumption of a lawful marriage; the presumption of marriage had not been rebutted, and thus, the husband was the surviving spouse of the decedent and her sole heir because the decedent left the marital home due to medical conditions, and allegations of drunkenness and abuse were undermined by multiple witnesses. Foltz v. Shadid,, 2018 Va. Cir. LEXIS 5 (Page County Jan. 13, 2018).

§ 64.2-503. Oath and bond of administrator of intestate estate.

An administrator of an intestate estate shall give bond and take an oath that the decedent has left no will, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. Such oath may be taken on behalf of a corporation by its president, a vice-president, secretary, treasurer, or trust officer.

(Code 1950, § 64-115; 1968, c. 656, § 64.1-119; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Adminstrators, §§ 31, 257.

CASE NOTES

Application for appointment. - To qualify as the personal representative or administrator of an intestate decedent's estate, the person seeking to act as such must apply to the appropriate circuit court; "administration shall be granted to the distributees who apply therefor, preferring first the husband or wife." NAACP Labor Comm. v. Laborers' Int'l Union, 902 F. Supp. 688 (W.D. Va. 1995) (decided under prior law).

§ 64.2-504. Bond of executor or administrator.

  1. Except as provided in subsection B, every bond of an executor or administrator shall be, at least, in an amount equal to (i) the full value of the personal estate of the decedent to be administered, or (ii) if the will authorizes the executor or administrator to sell real estate, or receive the rents and profits thereof, the full value of the personal estate and such real estate, or the rents and profits thereof, as the case may be.
  2. Upon the request of an executor or administrator, the clerk shall redetermine the amount of the bond in light of any reduction in the current market value of the estate in the executor's or administrator's possession or subject to his power, whether such reduction is due to disbursements, distributions, or valuation of assets, if such reduction is reflected in an accounting that has been confirmed by the court or an inventory that has been approved by the commissioner of accounts and recorded in the clerk's office. This provision shall not apply to any bond set by the court.

    (Code 1950, § 64-116; 1968, c. 656, § 64.1-120; 1996, c. 317; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Adminstrators, §§ 31, 264.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Court may exercise discretion in fixing amount of bond. - By this section it was intended that the court granting administration on an estate, or admitting an executor to qualify as such, should have a discretion in regard to the amount of the security. And the general practice of requiring the security in double the estimated value of the estate, is a proper exercise of that discretion. Atkinson v. Christian, 44 Va. (3 Gratt.) 448 (1847).

Presumption of regularity. - In the absence of evidence directly to the contrary, it must be presumed that the official bond of the executor and his sureties was in the usual form, with a condition "for the faithful discharge by him of the duties of his trust." Reherd v. Long, 77 Va. 839 (1883).

Coexecutors as sureties. - Where coexecutors or joint administrators execute a joint bond each is liable as surety for the other. But for a devastavit committed by the other each is liable only with the other sureties and to the same extent. Morrow's Adm'r v. Peyton's Adm'r, 35 Va. (8 Leigh) 54 (1837); Boyd's Ex'rs v. Boyd's Heirs, 44 Va. (3 Gratt.) 113 (1846); Caskie v. Harrison, 76 Va. 85 (1882).

Proceeds of sale of realty. - Under the former provisions of the statute concerning executor's bonds, the sureties of an executor were not liable for proceeds of a sale of land under the will. But it is otherwise expressly provided by the present section. Reherd v. Long, 77 Va. 839 (1883).

§ 64.2-505. When security not required.

  1. The court or clerk shall require a personal representative to furnish security. However, the court or clerk shall not require a personal representative to furnish security if:
    1. All distributees of a decedent's estate or all beneficiaries under the decedent's will are personal representatives of that decedent's estate, whether serving alone or with others who are not distributees or beneficiaries; however, if all personal representatives of a testate decedent are entitled to file a statement in lieu of an accounting under § 64.2-1314 , the security shall be required only upon the portion of their bond given in connection with the property passing to beneficiaries who are not personal representatives; or
    2. The will waives security of an executor nominated therein.
  2. Notwithstanding subsection A, upon the motion of a legatee, devisee, or distributee of an estate, or any person who has a pecuniary interest in an estate, the court or clerk may require the personal representative to furnish security. A copy of such motion shall be served upon the personal representative. The court shall conduct a hearing on the motion and may require the personal representative to furnish security in an amount it deems sufficient and may award the movant reasonable attorney fees and costs which shall be paid out of the estate.
  3. This section shall be deemed to permit qualification without security where the personal representative is the only distributee or only beneficiary by virtue of one or more instruments of disclaimer filed prior to, or at the time of, such personal representative's qualification.

    (Code 1950, § 64-117; 1966, c. 325; 1968, c. 656, § 64.1-121; 1970, c. 426; 1974, c. 140; 1977, c. 144; 1994, c. 393; 1996, c. 57; 2012, c. 614; 2014, c. 291; 2015, c. 631.)

The 2014 amendments. - The 2014 amendments by c. 291 inserted "or upon motion of," substituted "or clerk" for "may require that" and inserted "may be required to" in the first sentence in subsection B.

The 2015 amendments. - The 2015 amendment by c. 631 in subsection B, deleted "or upon motion of" following "estate" and substituted "may require the personal representative" for "the personal representative may be required" following "clerk."

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974).

For 1994 survey of Virginia wills, trusts, and estates law, see 28 U. Rich. L. Rev. 1145 (1994).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Adminstrators, §§ 257, 258.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

In Virginia no distinction is made between executors and administrators in the matter of requiring security, unless the testator directs that the executor shall not be required to give security, in which case the court should not require it of him, unless, upon complaint of some person interested, or from its own knowledge it thinks security ought to be required. Bryce v. Stevenson, 23 Va. (2 Rand.) 438 (1824); Fairfax v. Fairfax's Ex'r, 48 Va. (7 Gratt.) 36 (1850).

Section confers wide discretion upon court. - Under the provisions of this section, courts of probate are clothed with a wide discretion in the matter of requiring security of executors where the will directs that none shall be given, and the exercise of it should not be disturbed except in a case of plain abuse. It may be required on the application of any person interested. Schnurman v. Biddle & Co., 109 Va. 702 , 64 S.E. 977 (1909).

Additional executors. - Where a testator appointed his wife and son executor and executrix, directing that no security be required, and subsequently appointed an additional executor by codicil, it was held that the added executor was not entitled to qualify without giving security. Fairfax v. Fairfax's Ex'r, 48 Va. (7 Gratt.) 36 (1850).

§ 64.2-506. When letters of administration and order for obtaining probate in due form are required.

The court or clerk may issue a certificate of qualification to any personal representative for obtaining probate or letters of administration, which shall be given the same effect as the probate or letters made out in due form. The clerk when required by any personal representative, shall make out such probate or letters in due form that shall be signed by the clerk, sealed with the seal of the court, and certified by the judge to be attested in due form.

(Code 1950, § 64-118; 1968, c. 656, § 64.1-122; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Adminstrators, § 25.

CASE NOTES

Effect of certificate of probate or administration. - The certificate of probate or of administration granted by a court of this State, and attested by the clerk, will enable the executor or administrator to act, and may be given in evidence in any court of the Commonwealth. Dickinson v. M'Craw, 25 Va. (4 Rand.) 158 (1826) (decided under prior law).

§ 64.2-507. Clerks to deliver statement of responsibilities.

The clerk of any court in which any person qualifies as executor or administrator of an estate shall deliver to such person, at the time of qualification, a statement in at least the following form: "As an executor or administrator of an estate, you are charged with the responsibility of filing any income, inheritance or estate tax returns required by state or federal law and an accounting of your handling of the estate."

(1980, c. 292, § 64.1-122.1; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

§ 64.2-508. Written notice of probate, qualification, and entitlement to copies of inventories, accounts, and reports to be provided to certain parties.

  1. Except as otherwise provided in this section, a personal representative of a decedent's estate or a proponent of a decedent's will when there is no qualification shall provide written notice of qualification or probate, and notice of entitlement to copies of wills, inventories, accounts, and reports, to the following persons:
    1. The surviving spouse of the decedent, if any;
    2. All heirs at law of the decedent, whether or not there is a will;
    3. All living and ascertained beneficiaries under the will of the decedent, including those who may take under § 64.2-418 , and beneficiaries of any trust created by the will; and
    4. All living and ascertained beneficiaries under any will of the decedent previously probated in the same court.
  2. Notice under subsection A need not be provided (i) when the known assets passing under the will or by intestacy do not exceed $5,000 or (ii) to the following persons:
    1. A personal representative or proponent of the will;
    2. Any person who has signed a waiver of right to receive notice;
    3. Any person to whom a summons has been issued pursuant to § 64.2-446 ;
    4. Any person who is the subject of a conservatorship, guardianship, or committeeship, if notice is provided to his conservator, guardian, or committee;
    5. Any beneficiary of a trust, other than a trust created by the decedent's will, if notice is provided to the trustee of the trust;
    6. Any heir or beneficiary who survived the decedent but is deceased at the time of qualification or probate, and such person's successors in interest, if notice is provided to such person's personal representative;
    7. Any minor for whom no guardian has been appointed, if notice is provided to his parent or person in loco parentis;
    8. Any beneficiary of a pecuniary bequest or of a bequest of tangible personal property, provided in either case the beneficiary is not an heir at law and the value of the bequest is not in excess of $5,000; and
    9. Any unborn or unascertained persons.
  3. The notice shall include the following information:
    1. The name and date of death of the decedent;
    2. The name, address, and telephone number of a personal representative or a proponent of a will;
    3. The mailing address of the clerk of the court in which the personal representative qualified or the will was probated;
    4. A statement as follows: "This notice does not mean that you will receive any money or property";
    5. A statement as follows: "If personal representatives qualified on this estate, they are required by law to file an inventory with the commissioner of accounts within four months after they qualify in the clerk's office, to file an account within 16 months of their qualification, and to file additional accounts within 16 months from the date of their last account period until the estate is settled. If you make written request therefor to the personal representatives, they must mail copies of these documents (not including any supporting vouchers, but including a copy of the decedent's will) to you at the same time the inventory or account is filed with the commissioner of accounts unless (i) you would take only as an heir at law in a case where all of the decedent's probate estate is disposed of by will or (ii) your gift has been satisfied in full before the time of such filing. Your written request may be made at any time; it may relate to one specific filing or to all filings to be made by the personal representative, but it will not be effective for filings made prior to its receipt by a personal representative. A copy of your request may be sent to the commissioner of accounts with whom the filings will be made. After the commissioner of accounts has completed work on an account filed by a personal representative, the commissioner files it and a report thereon in the clerk's office of the court wherein the personal representative qualified. If you make written request therefor to the commissioner before this filing, the commissioner must mail a copy of this report and any attachments (excluding the account) to you on or before the date that they are filed in the clerk's office"; and
    6. The mailing address of the commissioner of accounts with whom the inventory and accounts must be filed by the personal representatives, if they are required.
  4. Within 30 days after the date of qualification or admission of the will to probate, a personal representative or proponent of the will shall forward notice by delivery or by first-class mail, postage prepaid, to the persons entitled to notice at their last known address. If the personal representative or proponent does not determine that the assets of the decedent passing under the will or by intestacy exceed $5,000 until after the date of the qualification or admission of the will to probate, notice shall be forwarded to the persons entitled thereto within 30 days after such determination.
  5. Failure to give the notice required by this section shall not (i) affect the validity of the probate of a decedent's will or (ii) render any person required to give notice, who has acted in good faith, liable to any person entitled to receive notice. In determining the limitation period for any rights that may commence upon or accrue by reason of such probate or qualification in favor of any entitled person, the time that elapses from the date that notice should have been given to the date that notice is given shall not be counted, unless the person required to give notice could not determine the name and address of the entitled person after the exercise of reasonable diligence.
  6. The personal representative or proponent of the will shall record within four months in the clerk's office where the will is recorded an affidavit stating (i) the names and addresses of the persons to whom he has mailed or delivered notice and when the notice was mailed or delivered to each or (ii) that no notice was required to be given to any person. The commissioner of accounts shall not approve any settlement filed by a personal representative until the affidavit described in this subsection has been recorded. If the personal representative of an estate or the proponent of a will is unable to determine the name and address of any person to whom notice is required after the exercise of reasonable diligence, a statement to that effect in the required affidavit shall be sufficient for purposes of this subsection. Notwithstanding the foregoing provisions, any person having an interest in an estate may give the notice required by this section and record the affidavit described in this subsection. If this subsection has not been complied with within four months after qualification, the commissioner of accounts shall issue, through the sheriff or other proper officer, a summons to such fiduciary requiring him to comply, and if the fiduciary does not comply, the commissioner shall enforce the filing of the affidavit in the manner set forth in § 64.2-1215 .
  7. The form of the notice to be given pursuant to this section, which shall contain appropriate instructions regarding its use, shall be provided to each clerk of the circuit court by the Office of the Executive Secretary of the Supreme Court and each clerk shall provide copies of such form to the proponents of a will or those qualifying on an estate.

    (1993, c. 4, § 64.1-122.2; 2001, cc. 78, 265; 2002, c. 716; 2012, c. 614.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

Article 2. List of Heirs and Affidavit of Real Estate.

§ 64.2-509. List of heirs.

  1. Every personal representative of a decedent, whether the decedent died testate or intestate, shall, at the time of his qualification, and every proponent of a will where there is no qualification of a personal representative, shall, at the time the will is presented for probate, furnish a list of heirs under oath in accordance with a form provided to each clerk of court by the Office of the Executive Secretary of the Supreme Court or a computer-generated facsimile thereof to the court or clerk where the personal representative qualifies and to the clerk of the circuit court for the jurisdiction where any real estate that is part of the decedent's estate is located.
  2. If there has been no qualification of a personal representative within 30 days following the decedent's death, a list of heirs, made under oath in accordance with the form provided to each clerk or a computer-generated facsimile thereof, may be filed by any heir at law of a decedent who died intestate.
  3. The clerk shall record the list of heirs in the will book and index the list in the name of the decedent and the heirs. A list of heirs made under oath and recorded pursuant to this section shall be prima facie evidence of the facts contained in the list. The cost of recording the list shall be deemed a part of the cost of administration and be paid out of the estate of the decedent.
  4. The personal representative shall not receive any compensation for his services until the list of heirs is filed unless he files an affidavit before the commissioner of accounts that the heirs are unknown to him and that after diligent inquiry he has been unable to ascertain their names, ages, or addresses, as the case may be.
  5. The list of heirs filed pursuant to this section shall reflect the heirs in existence on the date of the decedent's death. If there are any changes as to who should be included on the list of heirs, an additional list of heirs shall be filed that includes such changes.

    (Code 1950, § 64-127; 1954, c. 182; 1968, cc. 384, 656, § 64.1-134; 1984, c. 339; 1994, c. 327; 1998, c. 610; 2010, c. 585; 2012, c. 614.)

Law review. - For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

For 1994 survey of Virginia wills, trusts, and estates law, see 28 U. Rich. L. Rev. 1145 (1994).

For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Research References. - Virginia Forms (Matthew Bender). No. 15-401 Checklist for Probate and Administration, et seq.; No. 16-2003 List of Heirs/Real Estate Affidavit.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 82.

CASE NOTES

Purchaser of decedent's land must ascertain names of all heirs. - A purchaser of decedent's land could not be sure of obtaining a good title unless he ascertained from and dehors the record the names of all the legal heirs of decedent. Hyson v. Dodge, 198 Va. 792 , 96 S.E.2d 792 (1957) (decided under prior law).

§ 64.2-510. Affidavit relating to real estate of intestate decedent.

  1. Any person having an interest in real estate that is part of an intestate decedent's estate, including a personal representative who has qualified, may execute an affidavit, on a form provided to each clerk of the court by the Office of the Executive Secretary of the Supreme Court or a computer-generated facsimile thereof, setting forth briefly (i) a description of the real estate owned by the decedent at the time of his death situated within the jurisdiction where the affidavit is to be recorded; (ii) that the decedent died intestate; and (iii) the names and last known addresses of the decedent's heirs at law. The clerk of the circuit court of the jurisdiction where such real estate or any part thereof is located shall record and index the affidavit as wills are recorded and indexed in the name of the decedent and the heirs.
  2. The clerk of the circuit court of the jurisdiction where the affidavit is recorded shall transmit an abstract of the affidavit to the commissioner of the revenue of such jurisdiction. In lieu of a printed paper copy of such abstract, the clerk may provide an electronic abstract or secure remote electronic access to such abstract to the commissioner. Upon receipt of the affidavit, the commissioner may transfer the real estate upon the land books and assess the real estate in accordance therewith.

    (Code 1950, § 64-127.1; 1952, c. 149; 1968, c. 656, § 64.1-135; 1998, c. 610; 2012, c. 614; 2017, c. 42.)

The 2017 amendments. - The 2017 amendment by c. 42 inserted the second sentence in subsection B.

Law review. - For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).

Article 3. Authority and General Duties.

§ 64.2-511. Powers of executor before qualification.

A person named in a will as executor shall not exercise the powers of executor until he qualifies as such by taking an oath and giving bond in the court or before the clerk where the will or an authenticated copy thereof is admitted to record, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste.

(Code 1950, § 64-128; 1968, c. 656, § 64.1-136; 2012, c. 614.)

Law review. - For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 7, 32.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Section modifies common law. - The common-law rule as to powers of an executor or administrator before qualification has been greatly modified by statute, and is restricted in Virginia to the burial of the decedent, payment of reasonable funeral expenses, and the performance of such acts as are necessary for the preservation of the estate. Monroe v. James, 18 Va. (4 Munf.) 194 (1814).

Sale by executor who dies before qualification is void. - The provisions of the Code of 1879, §§ 21, 23, p. 379, ch. 104, were construed so as to mean that a sale by an executor named, who had not qualified and died before qualification, was void as against an executor who afterwards qualified. Monroe v. James, 18 Va. (4 Munf.) 194 (1814). To conform to the judicial construction in this case the law has been amended to its present form. Gibson v. Beckham, 57 Va. (16 Gratt.) 321 (1862).

Sale by majority of duly qualified executors. - Where two out of three nominated executors qualify and sell and convey real estate to purchasers, who pay the purchase money in full, and after the sale the third qualifies and consents to the sale by sharing the commissions, the title of the purchaser is valid, at least in equity. Mills v. Mills' Ex'rs, 69 Va. (28 Gratt.) 442 (1877).

Declaratory judgment action. - Trial court properly sustained an executor's demurrer to a son's complaint, seeking a declaratory judgment with respect to the interpretation of the will of the son's father. Since the son alleged in his complaint that the attorney who drafted his father's will had not qualified as the executor of his father's will, as required by § 64.1-136, the son failed to plead the existence of an actual controversy pursuant to § 8.01-184 . Bell v. Saunders, 278 Va. 49 , 677 S.E.2d 39 (2009).

§ 64.2-512. Funeral expenses.

Subject to the provisions of § 64.2-528 , reasonable funeral and burial expenses of a decedent shall be considered an obligation of the decedent's estate, which shall be liable for such expenses to (i) the funeral establishment, (ii) the cemetery, (iii) any third-party creditor who finances the payment of such expenses, or (iv) any person authorized to make arrangements for the funeral of the decedent who has paid such expenses. A person who is authorized to make arrangements for the funeral of the decedent shall have the authority to bind the decedent's estate for such expenses and may execute, on behalf of the estate, any necessary instruments.

(1999, c. 193, § 64.1-136.1; 2012, c. 614.)

Law review. - For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).

CIRCUIT COURT OPINIONS

Responsibility for funeral expenses of deceased spouse. - Decedent's sister was entitled to recover funeral costs from the decedent's surviving spouse, pursuant to § 55-37 and the common-law doctrine of necessaries, because the decedent's sister paid for the decedent's burial instead of her surviving spouse, and § 64.1-136.1 did not extend liability solely to the decedent's estate. Shepard v. Moore, 83 Va. Cir. 377, 2011 Va. Cir. LEXIS 216 (Norfolk Sept. 22, 2011)(decided under prior law).

§ 64.2-513. Effect of death, resignation, or removal of sole executor.

Upon the death, resignation, or removal of the sole surviving executor under any last will, administration of the estate of the testator not already administered may be granted, with the will annexed, to any person the court deems appropriate.

(Code 1950, § 64-129; 1968, c. 656, § 64.1-137; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 335, 336.

Applied in Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

§ 64.2-514. Duty of every personal representative.

Every personal representative shall administer, well and truly, the whole personal estate of his decedent.

( Code 1950, § 64-131; 1968, c. 656, § 64.1-139; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 60, 64.

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Meaning of section. - This section cannot properly be construed to mean more than that the personal representative shall administer faithfully the personal estate of his decedent, whether such estate is disposed of entirely by will or passes partially by intestacy. Grasty v. Clare, 210 Va. 21 , 168 S.E.2d 261 (1969).

Principal and ancillary administrators are each in fact principal. - Although one administrator or executor may be termed principal, and the other ancillary, each in fact is principal, because each is independent of the other, and derives his power from equally independent sources. Grasty v. Clare, 210 Va. 21 , 168 S.E.2d 261 (1969).

Collection of assets. - One of the primary obligations of the personal representative is to collect the assets of the estate, which, of course, includes the duty to reduce choses in action to judgment. Isbell v. Flippen, 185 Va. 977 , 41 S.E.2d 31 (1947).

Portions of personal estate frequently administered in another state. - While primary administration of the personal estate of a decedent generally is had in the courts of the state of his domicile at death, portions of a decedent's personal estate are frequently administered in another state. Grasty v. Clare, 210 Va. 21 , 168 S.E.2d 261 (1969).

CIRCUIT COURT OPINIONS

Self-dealing. - Spouse engaged in self-dealing and violated the spouse's fiduciary duties under § 64.1-139 when the spouse raised the spouse's salary after the decedent's death, raised the rent for a warehouse owned by the decedent and the spouse and rented to the decedent's business, and continued to operate the business; the spouse had operated the business for six years, and had reduced the business to insolvency and dissipated the net worth of the business. Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008) (decided under prior law).

Breach of fiduciary duty. - Demurrer by the executrix of the decedent's estate was overruled because the complaint by the decedent's adult child stated a sufficient basis to establish a cause of action breach of the executrix's fiduciary duty as the decedent's will provided that all residue of the estate was to be divided equally between the executrix and the decedent's adult child, but the decedent's adult child alleged that the executrix wasted and converted estate assets. Wilkinson v. St. Pierre, 97 Va. Cir. 21, 97 Va. Cir. 21, 2017 Va. Cir. LEXIS 319 (Chesterfield County May 3, 2017).

§ 64.2-515. Duty of fiduciaries as to joint accounts.

  1. Except as provided in subsection B, a fiduciary charged with the administration of the estate of a decedent is not required to assert a claim on behalf of the decedent's estate to any funds on deposit in any financial institution in a joint account held, at the time of the decedent's death, in the name of the decedent and one or more other persons when the terms of the contract of deposit, or the laws of the state in which such funds are deposited, permit such financial institution to pay the funds to (i) any of such persons in whose name the account is held, whether the other, or others, are living or not, or (ii) a named survivor or survivors.
  2. The fiduciary shall assert a claim to such funds if he receives a request in writing from any person interested in the estate within six months from the date of the initial qualification of the estate. The fiduciary, or his attorney, shall acknowledge in writing receipt of such request within 10 days, and if the fiduciary is the surviving cotenant of such funds, the fiduciary shall segregate such funds and place such funds in an interest-bearing account, awaiting an appropriate court order concerning the ultimate disposition of such funds. The fiduciary shall not use such funds for his own personal account. However, if the fiduciary accedes to the request that such funds be treated as estate funds, the fiduciary may distribute the funds according to law without any court order.

    (Code 1950, § 64-131.1; 1966, c. 600; 1968, c. 656, § 64.1-140; 1970, c. 425; 2012, c. 614.)

Law review. - For survey of legislation on wills and estates - and duty of fiduciary regarding joint accounts and those payable on death, see 5 U. Rich. L. Rev. 202 (1970). For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 64, 66.

CASE NOTES

This section is designed to protect banks and personal representatives. It does not prohibit the filing of claims on such bank account. It does protect a personal representative who elects not to file. Colley v. Cox, 209 Va. 811 , 167 S.E.2d 317 (1969)(decided under prior law).

§ 64.2-516. Duties of fiduciaries as to certain obligations of the United States.

  1. Except as provided in subsection B, a fiduciary charged with the administration of the estate of a decedent is not required to assert a claim to or seek to recover the whole or any part of funds arising from the redemption or payment of bonds of the United States that are paid or payable to others under the applicable laws of the United States or rules and regulations of the U.S. Department of the Treasury.
  2. The fiduciary shall assert a claim to such funds if he receives a request in writing from any person interested in the estate within six months from the date of the initial qualification of the estate. The fiduciary, or his attorney, shall acknowledge in writing receipt of such request within 10 days, and if the fiduciary is the co-owner of such funds, the fiduciary shall segregate such funds and place such funds in an interest-bearing account, awaiting an appropriate court order concerning the ultimate disposition of such funds. The fiduciary shall not use such funds for his own personal account. However, if the fiduciary accedes to the request that such funds be treated as estate funds, the fiduciary may distribute the funds according to law without any court order.

    (Code 1950, § 64-131.2; 1968, c. 656, § 64.1-141; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 64.

§ 64.2-517. Exercise of discretionary powers by surviving executors or administrators with the will annexed.

  1. When discretionary powers are conferred upon the executors under any will and some, but not all, of the executors die, resign, or become incapable of acting, the executors or executor remaining shall continue to exercise the discretionary powers conferred by the will, unless the will expressly provides that the discretionary powers cannot be exercised by fewer than all of the original executors named in the will.
  2. When discretionary powers are conferred upon the executors under any will and all of the executors or the sole executor if only one is named in the will dies, resigns, or becomes incapable of acting, the administrator with the will annexed appointed by the court shall exercise the discretionary powers conferred by the will upon the original executors or executor, unless the will expressly provides that the discretionary powers can only be exercised by the executors or executor named in the will.

    (Code 1950, § 64-132; 1968, c. 656, § 64.1-142; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 15-248 Appointment of Fiduciaries.

Applied in Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

§ 64.2-518. When personal representative may renew obligation of decedent.

  1. When a decedent is obligated on any note, bond, or other obligation for the payment of money that is due at the time of the decedent's death, or becomes due prior to the settlement of the decedent's estate, the decedent's personal representative may execute, in the same capacity as the decedent was obligated, a new note, bond, or other obligation for the payment of money for no more than the same amount as the sum due on the original obligation, including both principal and interest, which shall be in lieu of the obligation of the decedent, whether made payable to the original holder or another. Any note, bond, or other obligation executed by the personal representative shall be binding upon the estate of the decedent to the same extent and in the same manner as the original note, bond, or other obligation executed by the decedent.
  2. The personal representative may renew such note, bond, or other obligation for the payment of money from time to time, provided, that the time for final payment of the note, bond, or other obligation, or any renewal thereof, shall not exceed two years from the qualification of the original personal representative, unless otherwise ordered by a court of competent jurisdiction.
  3. The personal representative is not personally liable for any note, bond, or other obligation for the payment of money executed pursuant to this section.

    (Code 1950, § 64-133; 1968, c. 656, § 64.1-143; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970).

CASE NOTES

Extension of time of payment of note beyond two years. - In a suit for the purpose of ascertaining debts and liabilities of a testator's estate, appellant alleged that the estate was indebted to it, as evidenced by a negotiable note executed by the executor of the estate. The note in issue was a renewal of a note executed by the testator in favor of the appellant, which had been renewed at intervals of six months by the executor for a period of five years from the time of his qualification. This section was not applicable for the reason that the time for the final payment of the note had been extended beyond the two-year period provided for in the section. Saint Joseph's Soc'y v. Virginia Trust Co., 175 Va. 503 , 9 S.E.2d 304 (1940) (decided under prior law).

CIRCUIT COURT OPINIONS

Right of contribution. - Spouse had a right of contribution from a decedent's estate for the payments made on a mortgage for a warehouse owned as tenants by the entireties with the decedent until it was paid in full; § 64.1-143 did not apply. Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008)(decided under prior law).

§ 64.2-519. Suits upon judgment and contracts of decedent and actions for personal injury or wrongful death.

A personal representative may sue or be sued (i) upon any judgment for or against the decedent, (ii) upon any contract of or with the decedent, or (iii) in any action for personal injury or wrongful death against or on behalf of the estate.

(Code 1950, § 64-134; 1968, c. 656, § 64.1-144; 2001, c. 223; 2012, c. 614.)

Law review. - For comment on a personal representative's power to sell realty in Virginia, see 15 Wm. & Mary L. Rev. 949 (1974). For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 3 The Writ Firea Facies: Execution. § 3.2 Execution. Rendleman.

Virginia Forms (Matthew Bender). No. 1-107. Style and Commencement of Action by an Executor; No. 15-441.2 Certification/Letter of Qualification - For Prosecution or Defense of Civil Action.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 82, 289, 303.

CASE NOTES

Standing. - Testator's daughters did not have standing to bring the claims asserted because the testator's son remained the personal representative of the testator's estate, and he was the only party entitled to bring suit on behalf of the estate; the daughters' claims relating to the rescission of inter vivos transfers were inherently on behalf of the estate as they would have belonged to the testator during his lifetime. Platt v. Griffith,, 2021 Va. LEXIS 59 (May 27, 2021).

An action for breach of promise of marriage will not lie against the personal representative of the promisor, either at common law or under this section, in a case where no special damages are alleged and proved. In such a case, the maxim actio personalis moritur cum persona applies. Grubb's Adm'r v. Sult, 73 Va. (32 Gratt.) 203 (1879) (decided under prior law).

Action on insurance policy. - A policy of insurance on a building insured the decedent and his legal representatives. The building having been burned after the death of the decedent, his administratrix might maintain an action on the policy. Georgia Home Ins. Co. v. Kinnier's Adm'x, 69 Va. (28 Gratt.) 88 (1877)(decided under prior law).

Separation agreement between former husband and wife would not be enforceable at law against husband's widow because there was no privity of contract between her and the former wife, thus, the former wife had no right to charge husband's heir with individual liability for a debt the husband owed. Fisher v. Bauer, 246 Va. 490 , 436 S.E.2d 602 (1993)(decided under prior law).

§ 64.2-520. Action for goods carried away, or for waste, destruction of, or damage to estate of decedent.

  1. Any action for damages for the taking or carrying away of any goods, or for the waste, destruction of, or damage to any estate of or by the decedent, whether such damage be direct or indirect, may be maintained by or against the decedent's personal representative.
  2. Any action pursuant to this section shall survive pursuant to § 8.01-25 . (Code 1950, § 64-135; 1968, c. 656, § 64.1-145; 1977, c. 624; 2004, c. 368; 2012, c. 614; 2017, cc. 43, 93.)

Cross references. - As to survival of causes of action under this section, see § 8.01-25 and the Reviser's note thereto.

As to action for death by wrongful act, see §§ 8.01-50 through 8.01-56 and 8.01-244 .

As to right to survivorship among executors, see § 55.1-134 .

For rule of court as to commencement of civil actions, see Rule 3:2.

Editor's note. - Acts 2004, c. 368, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

Acts 2017, cc. 43 and 93, which amended this section and enacted § 64.2-520.1 , was in response to Thorsen v. Richmond SPCA, 292 Va. 257 , 786 S.E.2d 453 (2016). See annotation below.

Acts 2017, cc. 43 and 93, cl. 2 provides: "That no provision of this act shall affect any suit, action, or other judicial proceeding commenced prior to July 1, 2017, and such proceeding shall proceed under the law applicable at the time the proceeding was commenced."

Acts 2017, cc. 43 and 93, cl. 3 provides: "That if a cause of action for legal malpractice covered by this act accrued prior to July 1, 2017, and is barred because of the provisions of this act as of July 1, 2017, such cause of action shall be commenced on or before the earlier of either July 1, 2018, or the expiration of the applicable limitation period under the law in effect prior to the enactment of this act."

The 2004 amendments. - The 2004 amendment by c. 368 inserted the A designation at the beginning of the first paragraph and transferred the last sentence in subsection A to subsection C; and added subsection B.

The 2017 amendments. - The 2017 amendments by cc. 43 and 93 are identical, and deleted former subsection B, which read: "An action for damages, including future tax liability, to the grantor, his estate or his trust, resulting from legal malpractice concerning an irrevocable trust shall accrue upon completion of the representation in which the malpractice occurred. The action may be maintained pursuant to § 8.01-281 by the grantor or by the grantor's personal representative or the trustee if such damages are incurred after the grantor's death. An action for damages pursuant to this section in which a written contract for legal services existed between the grantor and the defendant shall be brought within five years after the cause of action accrues. An action for damages pursuant to this section in which an unwritten contract for legal services existed between the grantor and the defendant shall be brought within three years after the cause of action accrues. Notwithstanding this section, no such action shall be based upon damages that may reasonably be avoided or that result from a change of law subsequent to the representation upon which the action is based."

Law review. - For survey of Virginia law on trusts and estates for the year 1976-77, see 63 Va. L. Rev. 1503 (1977). For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For article, "Wills, Trusts, and Estates," see 45 U. Rich. L. Rev. 403 (2010).

Research References. - Virginia Forms (Matthew Bender). No. 1-107 Style and Commencement of Action by an Executor.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 87, 290.

Editor's note. - Some of the cases below were decided under prior law.

CASE NOTES

For the history of this section, see Henshaw v. Miller, 58 U.S. (17 How.) 212, 15 L. Ed. 222 (1854).

Language of this section is unlike that of the statutes of other states. Watson v. Daniel, 165 Va. 564 , 183 S.E. 183 (1936).

This is a remedial statute, and is, therefore, to receive a liberal construction. Lee v. Hill, 87 Va. 497 , 12 S.E. 1052 (1891); Progressive Realty Corp. v. Meador, 197 Va. 807 , 91 S.E.2d 645 (1956).

It changes the common law. - By this section the common-law rule as to what actions survive has been enlarged. Trust Co. v. Fletcher, 152 Va. 868 , 148 S.E. 785 (1929).

And enlarges the class of actions that survive. - The purpose of this section was remedial, and it enlarged, rather than restricted, the classes of action that survived at common law. Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 128 F.2d 645 (4th Cir. 1942); Rowe v. United States Fid. & Guar. Co., 421 F.2d 937 (4th Cir. 1970).

To include actions involving injury to a person in his property or business. - As a result of this section and the decisions construing it, the class of actions which survive has been enlarged to include those which involve injury to a person in his property or business, as distinguished from purely personal wrongs. Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 128 F.2d 645 (4th Cir. 1942); Rowe v. United States Fid. & Guar. Co., 421 F.2d 937 (4th Cir. 1970).

Real nature of injury or claim should be regarded. - In determining whether a cause of action survives to the personal representative, the real nature of the injury or claim ought to be regarded, and not the form of the remedy by which it is sought to be redressed or enforced. Lee v. Hill, 87 Va. 497 , 12 S.E. 1052 (1891).

Word "goods" includes money. - The term "goods" is broad enough to include money, and as used in this section must be held to be so inclusive. Patton v. Brady, 184 U.S. 608, 22 S. Ct. 493, 46 L. Ed. 713 (1902).

"Estate" covers every kind of property right. - The word "estate" is broad enough to cover every description of vested right and interest attached to and growing out of property. Lee v. Hill, 87 Va. 497 , 12 S.E. 1052 (1891).

Direct or indirect damage. - Before the 1977 amendment to this section, it was held that while the language of this section was comprehensive, and embraced damage of any kind or degree to the estate, real or personal, of the person aggrieved, the damage must be direct, and not the consequential injury or loss to the estate which flowed from a wrongful act directly affecting the person only. Patton v. Brady, 184 U.S. 608, 22 S. Ct. 493, 46 L. Ed. 713 (1902).

Before the 1977 amendment, this section was construed to provide for survival only where the damage to property for which recovery was sought was the direct result of the wrong. Where such damage was an indirect result of the wrong the action did not survive. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574 (1954); Carva Food Corp. v. Dawley, 202 Va. 543 , 118 S.E.2d 664 (1961).

In cases of torts affecting property rights, survivability depended upon a direct, as opposed to an indirect or consequential, injury to the property. Coleman v. Kroger Co., 399 F. Supp. 724 (W.D. Va. 1975), decided prior to 1977 amendment to this section.

Action for wrongful interference with right to enter into contract will survive. - See Zoby v. American Fid. Co., 137 F. Supp. 38 (E.D. Va. 1955), aff'd, 242 F.2d 76 (4th Cir. 1957).

As will action for maliciously conspiring to breach contract. - An action for compensatory and punitive damages for malicious acts of defendant in conspiring to breach contract not to engage in teaching dancing within two years after defendant's employment with plaintiffs ended was one for damages to plaintiffs' estate which would survive under this section. Worrie v. Boze, 198 Va. 533 , 95 S.E.2d 192 (1956), aff'd, 198 Va. 891 , 96 S.E.2d 799 (1957).

Action for malicious prosecution. - An action against a defendant for maliciously and without probable cause suing out an injunction against a plaintiff whereby the operation of his mill was suspended could not be maintained against his personal representative under this section as it stood before the 1977 amendment. Mumpower v. City of Bristol, 94 Va. 737 , 27 S.E. 581 (1897).

Action for loss of use of land. - The loss of the use of land and the timber thereon, occasioned by the fraudulent misrepresentations of a joint purchaser that he had secured a right-of-way over an adjoining tract, did not give rise to such a cause of action as survived to personal representatives under this section as it stood before the 1977 amendment. Cover v. Critcher, 143 Va. 357 , 130 S.E. 238 (1925).

Trover may be sustained against a personal representative as such, though the goods never came into his hands. Ferrill v. Brewis' Adm'r, 66 Va. (25 Gratt.) 765 (1875).

And so may assumpsit or trespass on the case. - Where one was wrongfully discharged by decedent, trespass on the case may be maintained under this section against the executor or administrator, or assumpsit for breach of contract at common law. In either case the action survives. And when defendant dies pending the action, it may be revived against the personal representative. Lee v. Hill, 87 Va. 497 , 12 S.E. 1052 (1891).

F. put into the hands of B. two notes, to be collected and the money paid to F. B. did not collect or pay over the money, and though required, did not return the notes to F. F. may maintain an action on the case against the administrator of B. for the damage sustained by the failure of B. to collect or return the notes. Ferrill v. Brewis' Adm'r, 66 Va. (25 Gratt.) 765 (1875).

Action for recovery of money unlawfully paid for taxes survives. - A cause of action to recover from a collector of internal revenue a sum alleged to have been paid him under protest to protect property from unlawful seizure for illegal taxes survives the death of the defendant, both at common law and under this section. Patton v. Brady, 184 U.S. 608, 22 S. Ct. 493, 46 L. Ed. 713 (1902).

Father's action for medical expenses for injuries to child. - An action for damages on account of expenditures made by the plaintiff in the healing of his infant child of injuries negligently caused by defendants was one for the pecuniary loss suffered by his estate. Such action was one that could be brought by a personal representative under this section in the event of plaintiff's death. Watson v. Daniel, 165 Va. 564 , 183 S.E. 183 (1936).

Action for violation of antitrust acts. - An action for damages to business resulting from conspiracy in violation of the antitrust acts is an action that survives. Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 128 F.2d 645 (4th Cir.), rev'g, 43 F. Supp. 309 (E.D. Va. 1942).

Statute of limitations. - Under the new statutory scheme, survivability no longer is germane in determining which statute of limitations applies. Section 8.01-25 provides that all causes of action survive the death of the plaintiff or defendant. Moreover, the problem of determining direct or indirect injury has been eliminated. This section now provides, in part, that: "Any action at law for damages for the . . . destruction of, or damage to any estate of or by the decedent, whether such damage be direct or indirect, may be maintained by or against the decedent's personal representative. Any such action shall survive pursuant to § 8.01-25 ." Now, under the straightforward provisions of § 8.01-243 B, "[e]very" action for "injury to property" is governed by a five-year statute of limitations. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179 (1986).

When claim accrues. - In accordance with § 8.01-246 , the three-year statute of limitations cannot begin to run as to the testamentary beneficiary until a cause of action accrues, after the death of the testator. Thus § 8.01-246 can, under the proper circumstances in which no injury is sustained, provide one of the referenced statutory exceptions to the rule set forth in § 8.01-230 that contractual rights of action accrue at breach. Thorsen v. Richmond SPCA, 292 Va. 257 , 786 S.E.2d 453 (2016) (but see § 64.2-520.1 and notes thereunder).

Standing. - Testator's daughters did not have standing to bring the claims asserted because the testator's son remained the personal representative of the testator's estate, and he was the only party entitled to bring suit on behalf of the estate; the daughters' claims relating to the rescission of inter vivos transfers were inherently on behalf of the estate as they would have belonged to the testator during his lifetime. Platt v. Griffith,, 2021 Va. LEXIS 59 (May 27, 2021).

§ 64.2-520.1. Action for damages from legal malpractice concerning estate planning.

  1. An action for damages to an individual or an individual's estate, including future tax liability, resulting from legal malpractice concerning the individual's estate planning, including the provision of legal advice or the preparation of legal documents, regardless of when executed, shall accrue upon completion of the representation during which the malpractice occurred.
  2. Notwithstanding § 55.1-119 , but subject to any written agreement between the individual and the defendant that expressly grants standing to a person who is not a party to the representation by specific reference to this subsection, the action may be maintained only by the individual or by the individual's personal representative.
  3. An action for damages pursuant to this section in which a written contract for legal services existed between the individual and the defendant shall be brought within five years after the cause of action accrues as provided in this section. An action for damages pursuant to this section in which an unwritten contract for legal services existed between the individual and the defendant shall be brought within three years after the cause of action accrues as provided in this section.
  4. Notwithstanding the provisions of this section, no such action shall be based upon damages that may reasonably be avoided or that result from a change of law subsequent to the representation upon which the action is based.
  5. Any action pursuant to this section shall survive pursuant to § 8.01-25 . (2017, cc. 43, 93.)

Editor's note. - Acts 2017, cc. 43 and 93, cl. 2 provides: "That no provision of this act shall affect any suit, action, or other judicial proceeding commenced prior to July 1, 2017, and such proceeding shall proceed under the law applicable at the time the proceeding was commenced."

Acts 2017, cc. 43 and 93, cl. 3 provides: "That if a cause of action for legal malpractice covered by this act accrued prior to July 1, 2017, and is barred because of the provisions of this act as of July 1, 2017, such cause of action shall be commenced on or before the earlier of either July 1, 2018, or the expiration of the applicable limitation period under the law in effect prior to the enactment of this act."

Acts 2017, cc. 43 and 93, which enacted this section, was in response to Thorsen v. Richmond SPCA, 292 Va. 257 , 786 S.E.2d 453 (2016). See annotation under § 64.2-520 .

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-119" for "55-22."

§ 64.2-520.2. Reliance on certificate of qualification of a personal representative.

  1. Any individual or entity conducting business in good faith with a personal representative who presents a currently effective certificate of qualification may presume that the personal representative is properly authorized to act as to any matter or transaction. A person that refuses in violation of this section to accept a certificate of qualification is subject to (i) a court order mandating acceptance of the certificate of qualification and (ii) liability for reasonable attorney fees and costs incurred in any action or proceeding that confirms the validity of the certificate of qualification or mandates acceptance of the certificate of qualification.
  2. A person shall either accept or reject a certificate of qualification no later than seven business days after presentation of such certificate of qualification for acceptance. A person is not required to accept a certificate of qualification for a transaction if:
    1. Engaging in the transaction with the personal representative would be inconsistent with state or federal law;
    2. The person has actual knowledge of the termination of the personal representative's authority or of the certificate of qualification before exercise of the power;
    3. The person in good faith believes that the certificate of qualification is not valid or that the personal representative does not have the authority to perform the act requested; or
    4. The person believes in good faith that the transaction may involve, facilitate, result in, or contribute to financial exploitation.

      (2020, c. 702.)

Article 4. Power with Respect to Real Estate.

§ 64.2-521. Personal representatives to sell real estate devised to be sold, and to receive certain rents.

  1. If the will devises real estate to be sold and no person other than the executor is appointed to sell such real estate, the executor has the power to sell and convey such real estate and to receive the proceeds of sale or the rents and profits of any real estate that the executors are authorized by the will to receive.
  2. Unless a contrary intent is clearly set out in the will, if no executor qualifies, or those qualifying die, resign, or are removed, an administrator with the will annexed has the power to sell or convey the real estate devised by the will to be sold and to receive the proceeds of sale or the rents and profits of any real estate.

    (Code 1950, §§ 64-136, 64-137; 1968, c. 656, §§ 64.1-146, 64.1-147; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). For comment on a personal representative's power to sell realty in Virginia, see 15 Wm. & Mary L. Rev. 949 (1974).

Research References. - Virginia Forms (Matthew Bender). No. 15-250 Fiduciary Powers; No. 16-513 Deed by Executor.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 78, 130, 131, 338.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

For the history of this section, see Mills v. Mills' Ex'rs, 69 Va. (28 Gratt.) 442 (1877). See also Brown v. Armistead, 27 Va. (6 Rand.) 594 (1828).

The object of this section was to prevent the necessity of resorting to a court of equity for the appointment of a trustee, by devolving the execution of the power upon the executors, who are supposed to be fit and proper persons for the execution of it. Elys v. Wynne, 63 Va. (22 Gratt.) 224 (1872).

This section does not operate as a conveyance of the estate, or any interest therein, to the executors, but merely to give them power to make any sale of real estate which the will directs to be sold, without empowering any particular person to make the sale. Elys v. Wynne, 63 Va. (22 Gratt.) 224 (1872).

Executor has only a power of sale. - A direction in a will that land be sold by executors gives them only a power of sale, and no interest in the land. A suit to recover the land must be brought by the heirs. The title to the land devolves upon the heirs upon the death of the testator, subject to be divested only by lawful execution of the power of sale. Coles v. Jamerson, 112 Va. 311 , 71 S.E. 618 (1911).

Or a power coupled with an interest. - In a case where a will directed executors to sell land, it was held that the will vested in the executors an interest and a trust, which survived them, and it was the duty of the administrator c.t.a. to take possession of the land and to account for the rents and profits until sold. Mosby's Adm'r v. Mosby's Adm'r, 50 Va. (9 Gratt.) 584 (1853).

Upon this question of the construction of a will, as to when the power given the executors is not a mere naked one, but one that is coupled with an interest, see Elys v. Wynne, 63 Va. (22 Gratt.) 224 (1872); Mills v. Mills' Ex'rs, 69 Va. (28 Gratt.) 442 (1877).

Administrator c.t.a. may make sale. - A testator, being about to leave the country, made his will, and devised that in case of his death, or if he should not be heard of for ten years, his land should be sold for the best price that could be got, as was directed by a letter of attorney to J. H. of the same date with the will, and the proceeds divided among the testator's four sisters. It was held that the administrator with the will annexed had power to sell the land, under this section. Broadus v. Rosson, 30 Va. (3 Leigh) 12 (1831).

Administrator without "the will annexed." - If one dies leaving a will, and the executor fails to qualify, and another is appointed administrator only on his estate, without "the will annexed," the administrator does not succeed to the powers of the executor with reference to the sale of the estate, and the validity of the appointment for any purpose may well be doubted. Coles v. Jamerson, 112 Va. 311 , 71 S.E. 618 (1911).

§ 64.2-522. Personal representatives to pay over sale proceeds and rents to persons entitled.

An executor or administrator shall faithfully pay the rents and profits or proceeds of sale of real estate that lawfully come into his possession, or into the possession of any person for him, to such persons entitled thereto.

(Code 1950, § 64-141; 1968, c. 656, § 64.1-151; 2012, c. 614.)

CASE NOTES

Executor is chargeable with real estate as much as he is with personalty. - Where the testator gives to his executor the control, management, possession and administration of his real estate, granting him full power to sell or lease any or all of it, according to his discretion and judgment, whatever might have been his relation to the real estate under such a will as this, anterior to the passage of this section, there certainly can be no doubt but that under this section he is chargeable with the real estate in his character of executor as much as he is with the personalty. Smith's Ex'r v. Smith, 58 Va. (17 Gratt.) 268 (1867) (decided under prior law).

§ 64.2-523. Personal representative may execute deed pursuant to written contract of decedent.

When any decedent has executed and delivered a bona fide written contract of sale, purchase option, or other agreement binding such deceased person, his heirs, personal representatives, or assigns, to convey any real property or any interest therein, his personal representatives may execute a deed and do all things necessary to effect the transfer of title to such real property or any interest therein to the purchaser upon the purchaser's full compliance with the terms and conditions of such contract, option, or agreement. Such transfer shall be as effective as if it had been made by the decedent. The contract, option, or agreement shall be attached to any deed executed by a personal representative pursuant to this section and the clerk shall record such contract, option, or agreement in the deed book. Any personal representative duly qualified in any other state, upon taking an oath that the decedent owed no debts in the Commonwealth and posting bond upon such terms and in such amount as may be fixed by the clerk, but not less than the value of the decedent's interest to be conveyed, may convey real property or any interest therein under the provisions of this section without qualifying in the Commonwealth.

(Code 1950, § 64-138; 1958, c. 416; 1966, c. 346; 1968, c. 656, § 64.1-148; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 15-249 Ancillary Administration; No. 16-512 Deed by Heirs, et seq.

§ 64.2-524. Validation of certain conveyances by foreign executor.

  1. Every conveyance of real estate within the Commonwealth made prior to June 30, 1986, by the executor under a will that, prior to such sale, has been probated according to the laws of another state without the qualification of the executor in the Commonwealth, shall be as valid and effective to pass the title of such real estate as if the executor had qualified in the Commonwealth, provided that (i) the will under which the executor acted was duly executed according to the laws of the Commonwealth, (ii) the will confers upon the executor the power to convey the real estate, and (iii) an authenticated copy of such will has been admitted to probate in the Commonwealth in the county or city in which the real estate or any part thereof is located.
  2. Notwithstanding any other provision of law, any conveyance of real estate within the Commonwealth made on or after June 30, 1986, by an executor described in subsection A or the trustee of a testamentary trust established in a will where the will, prior to such sale, has been probated according to the laws of another state shall, without the qualification of the executor or the testamentary trustee in the Commonwealth, be valid and effective to pass the title of such real estate provided that (i) the executor or testamentary trustee had duly qualified according to the laws of the state where the will was probated, (ii) the will under which the executor or testamentary trustee acted was duly executed according to the laws of the Commonwealth as a valid will and confers upon the executor or testamentary trustee the power to convey the real estate so conveyed, and (iii) an authenticated copy of such will has been admitted to probate in the Commonwealth in the county or city in which the real estate or any part thereof is situated.

    (Code 1950, §§ 64-139, 64-140; 1958, c. 558; 1960, c. 279; 1968, c. 656, §§ 64.1-149, 64.1-150; 1996, c. 93; 2012, cc. 61, 614.)

Editor's note. - Acts 2012, c. 61 amended former § 64.1-150, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendment by Acts 2012, c. 61 has been given effect in this section by rewriting subsection B of this section. Subsection B has been set out in the form above at the direction of the Virginia Code Commission.

Research References. - Virginia Forms (Matthew Bender). No. 15-249 Ancillary Administration; No. 16-513 Deed by Executor; No. 16-2009 Indemnity Agreement for Sale of Real Estate by Devisees or Executor of Testate Decedent.

Article 5. Liability of Personal Estate to Debts.

§ 64.2-525. Debtor's appointment as executor.

The appointment of a debtor of the estate as executor shall not extinguish his debt to the estate.

(Code 1950, § 64-142; 1968, c. 656, § 64.1-152; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1101 Complaint by Executor to Have His Accounts Settled, et seq.; No. 15-204 Payment of Expenses, Debts and Taxes, et seq.

Editor's note. - The case annotated below was decided under prior law.

CASE NOTES

Law will not conclusively presume payment. - Where an executor is insolvent when he qualifies and remains so through the entire administration of his testator's estate the law will not conclusively presume that his debt to the estate is paid and is cash in his hands to be disbursed. Glens Falls Indem. Co. v. Wall, 163 Va. 635 , 177 S.E. 901 (1934).

The bond of an administrator or executor covers a personal debt owed by the principal to the decedent only to the extent that it binds him to a faithful performance of his duties as administrator; that is, he must exercise due diligence and honesty in the collection of debts, including a debt owed by himself, and the sureties are liable for his failure to do so. But where it appears that the debtor-representative is unable to pay, the debt becomes uncollectible, and the sureties on the bond are not liable therefor. Glens Falls Indem. Co. v. Wall, 163 Va. 635 , 177 S.E. 901 (1934).

To extent of executor's ability to pay. - In the absence of laches, the surety is liable upon his bond for the executor's debt only to the extent of the executor's ability to pay it. Glens Falls Indem. Co. v. Wall, 163 Va. 635 , 177 S.E. 901 (1934).

§ 64.2-526. What personal estate to be sold; use of proceeds.

  1. Subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3 and excluding personal estate that the will directs not to be sold, the personal representative shall sell such assets of the personal estate where the retention of such assets is likely to result in an impairment of value. In conducting such a sale, the personal representative may give reasonable credit and take bond with good security.
  2. If, after the sale pursuant to subsection A, the personal estate is not sufficient to pay the funeral expenses, charges of administration, debts, and legacies, the personal representative shall sell so much of the remaining personal estate as is necessary to pay such obligations. In conducting such a sale, the personal representative shall give as much consideration as practicable to preserving specific bequests in the will and to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3.
  3. Unless necessary for the payment of funeral expenses, charges of administration, or debts, the personal representative shall not sell personal estate that the will directs not to be sold.

    (Code 1950, §§ 64-143, 64-144, 64-145; 1966, c. 331; 1968, c. 656, §§ 64.1-153, 64.1-154, 64.1-155; 1981, c. 580; 2012, c. 614.)

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 124, 129.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

History of section. - This statute has been in force in the same form (except for the insertion of the words "or private sale" in 1966) since the Code of 1849, § 16, page 543, and was theretofore the same in substance back to 1 Revised Code of 1819, § 47, page 387. Herelick v. Southern Dry Goods & Notion Co., 139 Va. 121 , 123 S.E. 529 (1924).

General authority to sell. - The statutory authority of the personal representative to sell assets of the estate is confined to this section and §§ 64.1-153 and 64.1-155. Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952).

This section is broad enough to authorize the sale of stocks, bonds and other property, "as are likely to be impaired in value by keeping." Any further right to sell arises from the duty of the personal representative to protect and conserve the assets of the estate, or to make correct distribution to the legatees or distributees. Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952).

Power to sell stocks. - So long as executors, in good faith and in exercise of reasonable discretion, consider it to the best interest of the estate to retain stocks, though of a somewhat speculative character, they enjoy no right to sell (there being no testamentary direction nor any actual necessity to sell). Pritchett v. First Nat'l Bank, 195 Va. 406 , 78 S.E.2d 650 (1953).

Determining perishability of goods. - In determining which of the goods and chattels of a testator, or intestate, shall be sold as "likely to be impaired in value by keeping," some latitude of discretion must be allowed to the executor or administrator; and his conduct appearing to be fair, and, probably, proceeding from a good intention, ought to be sanctioned by a court of equity. M'Call v. Peachy's Adm'r, 17 Va. (3 Munf.) 288 (1812).

Security need not be "bond." - Under this section if the length of credit is reasonable the circumstance that the security taken was not a "bond" is immaterial, certainly in equity, if the security taken was regarded as "good security" at the time, by the personal representative acting in good faith and with reasonable diligence - that is, acting in the exercise of a fair discretion and in the same manner that a reasonably prudent business man would have acted under the same circumstances had the subject been his own property. Herelick v. Southern Dry Goods & Notion Co., 139 Va. 121 , 123 S.E. 529 (1924).

Executor is chargeable for failure to take security. - An administrator selling chattels of his decedent, taking neither cash nor security for the purchase money, is chargeable therewith. Clark v. Wells' Adm'r, 47 Va. (6 Gratt.) 475 (1850).

Improper surety. - A partner in trade of the buyer is not such a person as the executor or administrator can properly take as surety on a note given for the price of the property sold. Southall's Adm'r v. Taylor, 55 Va. (14 Gratt.) 269 (1858).

Devastavit in giving credit. - An administrator sold the stock of goods and store fixtures of his decedent for a sum, terms cash. The purchaser paid part cash and told the administrator he could not pay the rest but that a bank had agreed to loan him the remaining amount on condition that the administrator would deposit the same in the bank and allow it to remain there for thirty days. The judge before whom the administrator qualified was a director in this bank and solicited him to make this deposit. The administrator had never heard any rumors to the effect that the bank was not financially sound, though there were such rumors. It was held that under this section the administrator was not guilty of a devastavit in giving the credit he gave the purchaser in this manner for the balance. Herelick v. Southern Dry Goods & Notion Co., 139 Va. 121 , 123 S.E. 529 (1924).

Personalty is primary fund for payment of debts. - The plain interpretation of this section is that the personal estate of a decedent is the natural and primary fund for the payment of his debts and legacies, and, as a general rule, must be first exhausted before the real estate can be made liable; and the personal estate will not be exonerated in charging the real estate, even when there is a specific lien for a debt on the real estate, unless there are express words or a plain intent in the will to make such exoneration. New v. Bass, 92 Va. 383 , 23 S.E. 747 (1895).

§ 64.2-527. Estate held for another's life; inclusion in personal estate.

Any estate for the life of another shall go to the personal representative of the party entitled to the estate and shall be applied and distributed as the personal estate of such party.

(Code 1950, § 64-146; 1968, c. 656, § 64.1-156; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 52.

§ 64.2-528. Order in which debts and demands of decedents to be paid.

When the assets of the decedent in his personal representative's possession are not sufficient to satisfy all debts and demands against him, they shall be applied to the payment of such debts and demands in the following order:

  1. Costs and expenses of administration;
  2. The allowances provided in Article 2 (§ 64.2-309 et seq.) of Chapter 3;
  3. Funeral expenses not to exceed $4,000;
  4. Debts and taxes with preference under federal law;
  5. Medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him not to exceed $2,150 for each hospital and nursing home and $425 for each person furnishing services or goods;
  6. Debts and taxes due the Commonwealth;
  7. Debts due as trustee for persons under disabilities; as receiver or commissioner under decree of court of the Commonwealth; as personal representative, guardian, conservator, or committee when the qualification was in the Commonwealth; and for moneys collected by anyone to the credit of another and not paid over, regardless of whether or not a bond has been executed for the faithful performance of the duties of the party so collecting such funds;
  8. Debts for child support arrearages;
  9. Debts and taxes due localities and municipal corporations of the Commonwealth; and
  10. All other claims.

    No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over a claim not due.

    (Code 1950, § 64-147; 1956, c. 231; 1966, c. 274; 1968, c. 656, § 64.1-157; 1972, c. 96; 1981, c. 580; 1986, c. 109; 1993, c. 259; 1996, c. 84; 1997, c. 801; 2007, c. 735; 2008, cc. 666, 817; 2012, c. 614; 2014, c. 532; 2017, c. 591.)

The 2014 amendments. - The 2014 amendment by c. 532, in subdivision 3, substituted "$4,000" for "$3,500"; and in subdivision 5, substituted "$2,150" for "$400" and "$425" for "$150."

The 2017 amendments. - The 2017 amendment by c. 591 inserted subdivision 8 and redesignated remaining subsections accordingly.

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 3 The Writ Firea Facies: Execution. § 3.2 Execution. Rendleman.

Virginia Forms (Matthew Bender). No. 5-823 General Creditor's Complaint Against Estate of Decedent; No. 15-401 Checklist for Probate and Administration.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 91, 106, 110.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Provisions of this section are mandatory; they cannot be changed or disregarded by the court. Trevillian's Ex'rs v. Guerrant's Ex'rs, 72 Va. (31 Gratt.) 525 (1879); Deering & Co. v. Kerfoot, 89 Va. 491 , 16 S.E. 671 (1892).

They are binding upon the testator. - Wills must conform to this section as to the order in which personalty shall be applied in the payment of a decedent's debts; and it is beyond the power of a testator to affect the legal order of payment by a direction in his will. Deering & Co. v. Kerfoot, 89 Va. 491 , 16 S.E. 671 (1892).

And upon the personal representative. - It is the duty of a personal representative to pay the debts of the decedent in their order of priority as prescribed by law, and if he pays an inferior debt, leaving a debt of a preferred class unpaid, the payment constitutes a devastavit in case of a deficiency of assets. Mayo v. Bentley, 8 Va. (4 Call) 528 (1800); Nimmo's Ex'r v. Commonwealth, 14 Va. (4 Hen. & M.) 57, 4 Am. Dec. 488 (1809); McCormick v. Wright, 79 Va. 524 (1884).

When a will contains no specific directions for the payment of funeral expenses and debts, the provisions of this section control. Moon v. Norvell, 184 Va. 842 , 36 S.E.2d 632 (1946).

Section applies only to debts of decedent. - This section applies to debts of the decedent, not to debts for someone else. Hall v. Stewart, 135 Va. 384 , 116 S.E. 469 (1923).

Funeral expenses and costs of administration have priority. - This section in effect declares that no part of a decedent's estate shall be applied to his debts until the costs of administration of his estate and his funeral expenses have been paid. Hall v. Stewart, 135 Va. 384 , 116 S.E. 469 (1923).

Executors and administrators ought to be allowed all reasonable charges and disbursements for the benefit of the estate they represent, and a reasonable recompense for their personal trouble, in preference to the claim of any creditor of the decedent. Nimmo's Ex'r v. Commonwealth, 14 Va. (4 Hen. & M.) 57 (1809).

Fees paid counsel. - An executor or administrator ought to be credited in his administration account for fees paid to counsel, notwithstanding those fees were more than the law allowed. Lindsay v. Howerton, 12 Va. (2 Hen. & M.) 9 (1807).

Claim of State against estate of defaulting officer. - The fourth clause of this section (see now subdivision 6), referring to taxes and levies assessed on a decedent prior to his death does not apply to the claim of the State against the estate of a deceased defaulting sheriff for taxes collected and unaccounted for by him. Spilman v. Payne, 84 Va. 435 , 4 S.E. 749 (1888).

Subdivision preferring fiduciary debts was only prospective in its operation, and will not authorize the placing of decedent's debts as trustee in the preferred class, where the decedent died before the passage of the act though the estate is not distributed until afterwards. Price's Ex'r v. Harrison's Ex'r, 72 Va. (31 Gratt.) 114 (1878).

It accords priority only when fiduciary has qualified. - The wards of a guardian de son tort are not entitled, under this section, to any priority over the general creditors of such guardian in the distribution of his personal estate after his death. The language of this section plainly accords priority only where there has been a qualification, and that qualification has been in this State, and the section cannot be extended by construction. Watts v. Newberry, 107 Va. 233 , 57 S.E. 657 (1907).

Term "trustee" must be understood in the restricted sense of an express trustee, as distinguished from trustee in a general sense, by construction or implication of law. But a trustee de facto, by qualifying, becomes an express trustee, and liable as such for the amount which he owed the estate while acting as trustee de facto, and should have paid to himself. Brown v. Lambert's Adm'r, 74 Va. (33 Gratt.) 256 (1880).

It does not include a constructive trustee. - When a commissioner received the proceeds of the sale of an infant's lands under such circumstances as to make him a constructive or de facto trustee for the infant, the claim for these funds does not, upon his death, become a preferred debt under this section, as the statute does not contemplate a preference in favor of the debts of constructive trustees. Pope v. Prince, 105 Va. 209 , 52 S.E. 1009 (1906).

Character of debt is not changed by giving bond. - B was the guardian of J, and upon J's coming of age had a settlement with J of his account as guardian, and being found indebted on the account, executed bonds, for the amount of the balance due. B paid the interest during his life, and a part of the principal, and was up to the war able to pay the whole. It was held that the giving and taking of these bonds was not a novation of the debt, but the debt due from B to J continued to be a fiduciary debt, and was entitled to rank as such in the administration of B's estate. Smith v. Blackwell, 72 Va. (31 Gratt.) 291 (1879). See also Hamlin's Adm'r v. Atkinson, 27 Va. (6 Rand.) 574 (1828); Yerby v. Lynch, 44 Va. (3 Gratt.) 460 (1847).

Fiduciary obligation has priority over partnership debts. - Where a deceased partner's separate assets are insufficient to pay all his debts, those due by him in a fiduciary capacity are to be paid before firm debts. Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 (1889).

Debt attributable to decedent's estate. - The estate was liable to pay the mortgage debt based on two questions: (1) whether the decedent had a personal obligation to pay the debt; and (2) whether the mortgage debt was secured by real property owned by the decedent upon his death. The answer to the first question was that the decedent was personally and solely liable for the note that he signed, and therefore, the mortgage debt was a debt of his estate. In answer to the second question, the mortgage debt was not secured by real property owned by the decedent upon his death. The decedent's ownership interest did not survive his death. The spouses owned the property as tenants by the entirety with the right of survivorship. Therefore, the property passed to the surviving spouse by operation of law and was not part of the estate. Dolby v. Dolby, 280 Va. 132 , 694 S.E.2d 635 (2010).

CIRCUIT COURT OPINIONS

Priority of claims for elective share and exempt property. - Estate and a surety company were ordered to pay claims by the wife of a decedent under §§ 64.1-151.1 and 64.1-151.2, as the executor breached her duties by paying claims against the estate other than death taxes and administrative costs prior to paying the wife's claims, as the wife's claims had priority under § 64.1-157. Hill v. Clarke, 71 Va. Cir. 377, 2006 Va. Cir. LEXIS 260 (Hopewell 2006).

Priority of claims. - Because the parties stipulated that the Category 7 creditor had priority under § 64.1-157, the executor improperly paid credit card debts, business expenses, and funeral expenses exceeding $2,000 [now $3,500], which had a lower priority; however, the county personal property tax payment and an autopsy were properly paid as Category 1 and 5 claims. Estate of Wisemiller,, 2006 Va. Cir. LEXIS 217 (Fairfax County Nov. 13, 2006).

§ 64.2-529. Creditors to be paid in order of their classification; class paid ratably; when representative not liable for paying debt.

No payment shall be made to creditors of any one class until all those of the preceding class have been fully paid, and if the assets are not sufficient to pay all the creditors of any one class, the creditors of such class shall be paid ratably; but a personal representative who, after 12 months from his qualification, pays a debt or demand of his decedent is not personally liable for any debt or demand against the decedent of an equal or superior class, whether it is of record or not, unless he had notice of such debt or demand before making such payment.

(Code 1950, § 64-148; 1968, c. 656, § 64.1-158; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 108, 350.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Representative may not prefer one creditor over another. - The representative's right to prefer one creditor over another is generally abolished and all debts of the same class are made payable pro rata in case of deficiency of assets. Scott v. Cheatham, 78 Va. 82 (1883).

He must take notice of judgments. - An executor was required at his peril, to take notice of a judgment against his testator, and if he exhausts the assets by paying inferior debts (now within 12 months of his qualification), he must satisfy such judgment de bonis propriis. Mayo v. Bentley, 8 Va. (4 Call) 528 (1800); Nimmo's Ex'r v. Commonwealth, 14 Va. (4 Hen. & M.) 57 (1809).

Debts waiving homestead exemptions. - After the exempted property has been set apart, the residue shall be applied towards paying all the decedent's debts ratably, unless there be some entitled to priority under § 64.1-157, and after the residue has been exhausted the exempted property may be subjected to pay such portions of the homestead-waived debts as remain unpaid. Strange v. Strange, 76 Va. 240 (1882).

§ 64.2-530. Lien acquired during lifetime of decedent not affected.

The provisions of §§ 64.2-528 and 64.2-529 shall not affect any lien acquired during the lifetime of the decedent.

(Code 1950, § 64-149; 1968, c. 656, § 64.1-159; 2012, c. 614.)

CASE NOTES

Judgment lien takes priority over funeral expenses. - It is clear that the liens obtained in the lifetime of a decedent, whether upon his real or personal property, are paramount to all other claims whatsoever attaching thereon after his death. Consequently judgment liens acquired on the decedent's property during his lifetime have priority over the funeral expenses of the decedent. Wood v. Wood's Adm'r, 5 Va. L. Reg. 395 (1899) (decided under prior law).

Lien of fieri facias upon choses in action. - The lien of an execution of fieri facias upon the debtor's choses in action, though not enforced in his lifetime, continues after his death as against the other creditors of the debtor. Trevillian's Ex'rs v. Guerrant's Ex'rs, 72 Va. (31 Gratt.) 525 (1879) (decided under prior law).

§ 64.2-531. Nonexoneration; payment of lien if granted by agent.

  1. Unless a contrary intent is clearly set out in the will or in a transfer on death deed, (i) real or personal property that is the subject of a specific devise or bequest in the will or (ii) real property subject to a transfer on death deed passes, subject to any mortgage, pledge, security interest, or other lien existing at the date of death of the testator, without the right of exoneration. A general directive in the will to pay debts shall not be evidence of a contrary intent that the mortgage, pledge, security interest, or other lien be exonerated prior to passing to the legatee.
  2. The personal representative may give written notice to the creditor holding any debt to which subsection A applies that there is no right of exoneration for such debt pursuant to this section. Such notice shall include a copy of this section. Any such notice shall be sent by certified mail (i) to the address the creditor last provided to the debtor as the address to which notices to the creditor are to be sent; (ii) if the personal representative cannot reasonably determine the address to which notices to the creditor are to be sent, to the address the creditor last provided to the debtor as the address at which payments to the creditor are to be made; or (iii) if the personal representative cannot reasonably determine either the address to which notices to the creditor are to be sent or at which payments to the creditor are to be made, to (a) the address of the creditor's registered agent on file with the Virginia State Corporation Commission or (b) if there is no such registered agent on file, to the creditor's last known address. The creditor holding such debt may file a claim for such debt with the commissioner of accounts pursuant to § 64.2-552 on or before the later of one year after the qualification of the personal representative of the decedent's estate or six months after the personal representative gives such written notice to the creditor. Once the personal representative has given notice to the creditor as provided in this section, unless the creditor files a timely claim against the estate as set forth in this subsection, the liability of a personal representative or his surety for such debt shall not exceed the assets of the decedent remaining in the possession of the personal representative and available for application to the debt pursuant to § 64.2-528 at the time the creditor presents a demand for payment of such debt to the personal representative. Nothing in this section shall affect either the liability of the estate for such debt to the extent of the decedent's assets remaining at the time a claim is filed or the liability of the beneficiaries that receive the decedent's assets to the extent of such receipt. In the event that any such claim is timely filed with the commissioner of accounts, the personal representative shall give the specific beneficiary receiving such real or personal property written notice, within 90 days after such claim is filed, to obtain from the creditor the release of the estate from such claim. The notice to a beneficiary may be made to the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian or conservator of an incapacitated beneficiary, a committee of a convict or insane beneficiary, or the duly qualified guardian of a minor or, if none exists, a custodial parent of a minor. If the estate has not been released from such claim after the later of 180 days from such notice or one year from qualification, the personal representative may (a) sell the real or personal property that is the subject of a specific devise or bequest and that is also subject to the claim, (b) apply the proceeds of sale to the satisfaction of the claim, and (c) distribute any excess proceeds from such sale of the specific beneficiary of such property. If the proceeds of such sale are insufficient to satisfy the debt in full, the deficiency shall remain a debt of the estate to be satisfied from the other assets of the estate in accordance with applicable law. If such real property is subject to a transfer on death deed and is also subject to the claim, the personal representative may proceed as provided in § 64.2-634 to enforce the liability for such claim against such property.
  3. Subsection A shall not apply to any mortgage, pledge, security interest, or other lien existing at the date of death of the testator against any specifically devised or bequeathed real or personal property, or any real property subject to a transfer on death deed, that was granted by an agent acting within the authority of a durable power of attorney for the testator while the testator was incapacitated. For the purposes of this section, (i) no adjudication of the testator's incapacity is necessary, (ii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator, and (iii) an incapacitated testator is one who is impaired by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause creating a lack of sufficient understanding or capacity to make or communicate responsible decisions. This subsection shall not apply (a) if the mortgage, pledge, security interest, or other lien granted by the agent on the specific property is thereafter ratified by the testator while he is not incapacitated or (b) if the durable power of attorney was limited to one or more specific purposes and was not general in nature.
  4. Subsection A shall not apply to any mortgage, pledge, security interest, or other lien existing at the date of the death of the testator against any specific devise or bequest of any real or personal property, or any real property subject to a transfer on death deed, that was granted by a conservator, guardian, or committee of the testator. This subsection shall not apply if, after the mortgage, pledge, security interest, or other lien granted by the conservator, guardian, or committee, there is an adjudication that the testator's disability has ceased and the testator survives that adjudication by at least one year.
  5. Nothing in this section shall affect the priority of a secured debt with respect to the collateral securing such debt.

    (2007, c. 341, § 64.1-157.1; 2012, cc. 476, 507, 614; 2013, c. 390; 2017, cc. 34, 139.)

Editor's note. - Acts 2012, cc. 476 and 507 amended former § 64.1-157.1, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 476 and 507 have been given effect in this section by substituting "intellectual disability" for "mental deficiency" in subsection B.

The 2013 amendments. - The 2013 amendment by c. 390 substituted "or in a transfer on death deed, (i) real or personal property that is the subject of a specific devise or bequest in the will or (ii) real property subject to a transfer on death deed" for "a specific devise or bequest of real or personal property" in the first paragraph in subsection A; inserted "or any real property subject to a transfer on death deed" in the first sentence in subsections B and C.

The 2017 amendments. - The 2017 amendments by cc. 34 and 139 are identical, added subsections B and E, and redesignated remaining subsections accordingly; and made minor stylistic changes.

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For annual survey article, see "Taxation," 48 U. Rich. L. Rev. 169 (2013).

Research References. - Virginia Forms (Matthew Bender). No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-204 Payment of Expenses, Debts and Taxes, et seq.

Article 6. Liability of Real Estate to Debts.

§ 64.2-532. Real estate of decedent as assets for payment of debts.

If a decedent's personal estate is insufficient to satisfy the decedent's debts and lawful demands against his estate, all real estate of the decedent, including such real estate that remains after satisfying the debts with which the real estate was charged or was subject to under the decedent's will, are assets for the payment of the decedent's debts and all lawful demands against his estate. A decedent's real estate shall be applied to his debts and lawful demands against his estate in the same order that the personal estate of a decedent is applied pursuant to § 64.2-528 .

(Code 1950, § 64-171; 1968, c. 656, § 64.1-181; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970). For comment on a personal representative's power to sell realty in Virginia, see 15 Wm. & Mary L. Rev. 949 (1974).

Research References. - Virginia Forms (Matthew Bender). No. 5-823 General Creditor's Complaint Against Estate of Decedent; No. 15-219 Clause Charging Debts and Legacies Against Real Property, et seq.; No. 16-2006 Indemnity and Escrow Agreement for Sale of Real Estate by Heirs of Intestate Decedent, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 54, 88, 92, 120, 130, 139; 14A M.J. Partition, § 50.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Purpose. - The object of this section was to do away with the distinction between debts chargeable on decedent's lands at common law and simple contract debts, and not to disarrange the order of liability of the assets of a decedent's estate, which had been firmly established by a long line of adjudication. McCandlish v. Keen, 54 Va. (13 Gratt.) 615 (1857); Peirce v. Graham, 85 Va. 227 , 7 S.E. 189 (1888); Frasier v. Littleton, 100 Va. 9 , 40 S.E. 108 (1901).

Personal estate primary fund for payment of debts. - The Supreme Court has held repeatedly since this section, making real estate of a decedent assets for the payment of his debts, went into effect that personal estate is the primary fund for the payment of debts. Duerson's Adm'r v. Alsop, 68 Va. (27 Gratt.) 229 (1876); Lewis v. Overby's Adm'r, 72 Va. (31 Gratt.) 601 (1879); Ryan's Adm'r v. McLeod, 73 Va. (32 Gratt.) 367 (1879); Edmunds v. Scott, 78 Va. 720 (1884).

This section recognizes the common-law right of the ancestor to indicate the charges he wishes to make upon the land for such of his debts as he may prefer, but it does not alter or enlarge the common-law liability of the personalty of a decedent as the primary fund for the payment of his debts, or give to a testator the right to prefer his creditors out of his personal assets, as it does in the case of realty. Deering & Co. v. Kerfoot, 89 Va. 491 , 16 S.E. 671 (1892).

Hence, there can be no resort to decedent's real estate to pay his debts until his personalty has been exhausted. When that has been exhausted, whether by devastavit or distribution, the real estate in the hands of his heirs may be subjected. Scott v. Ashlin, 86 Va. 581 , 10 S.E. 751 (1890).

This section makes real estate assets merely, to be disposed of as personal assets; and a creditor has no lien upon the assets. He has a right to have the whole applied in a due course of administration. Peirce v. Graham, 85 Va. 227 , 7 S.E. 189 (1888).

But need not be distributed as personalty. - Real assets often come to the hands of the personal representative and it is his duty when he receives such to pay the same to such persons as are entitled thereto. They are, however, assets in his hands, the same as personal assets for the payment of the decedent's debts and need not be distributed as personalty. Johnson v. Coleman, 1 Va. L. Reg. (n.s.) 191 (1915).

Under this section the words "all lawful demands against his estate" mean charges or lawful demands against the decedent and not those incurred as expenses in the administration of the estate. United States v. Willcox, 73 F.2d 781 (4th Cir. 1934).

Debts need not be reduced to judgment. - Under this section the real estate of a decedent is an asset for the payment of his debts regardless of whether such debts have been reduced to judgment. Morrison v. Morrison, 177 Va. 417 , 14 S.E.2d 322 (1941).

This section does not apply to real estate on which debtor has created a lien. - This section does not apply, except subject to the encumbrance, to the real estate on which the debtor has created a bona fide lien, which is good against himself. Hence, where the decedent has subjected his whole estate to the payment of his debts, his general creditors must take the real estate under the charge in the will and must take it in the plight and condition in which he held it; and it is equitable assets, though the statute would have subjected it to the payment of his debts if there had been no such charge in the will. McCandlish v. Keen, 54 Va. (13 Gratt.) 615 (1857).

This section does not alter the rule that no judgment against the personal representative can bind the heirs, or in any manner affect them. It makes real estate descended or devised (not charged by the will with debts) legal assets in the hands of the heirs and devisees; but there would seem to be the same lack of privity now as before between the personal representatives and the heir or devisee. Peirce v. Graham, 85 Va. 227 , 7 S.E. 189 (1888); Brewis v. Lawson, 76 Va. 36 (1881); Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 (1887).

Lack of privity between personal representative and heirs or devisees unaffected. - Under this section there would seem to be lack of privity as before between the personal representatives and the heirs or devisees. The executor is charged as such with the administration of the personal assets and such real assets as may be charged with the payment of debts by the will; but otherwise his relations to the land descended or devised remain as heretofore; that is, as such he has no concern with them whatever. Peirce v. Graham, 85 Va. 227 , 7 S.E. 189 (1888); Brewis v. Lawson, 76 Va. 36 (1881); McCandlish v. Keen, 54 Va. (13 Gratt.) 615 (1857). See also Scott v. Ashlin, 86 Va. 581 , 10 S.E. 751 (1890).

Executor may not maintain suit against heirs to sell realty. - An executor, who is given no power as to the realty under the will, is not authorized by this section to maintain a suit against the heirs to sell the realty to pay debts, nor, as next friend to the infant heirs, uniting the widow, to compel the creditors to have the realty sold to pay debts. Peirce v. Graham, 85 Va. 227 , 7 S.E. 189 (1888). See also Tennent's Heirs v. Pattons, 33 Va. (6 Leigh) 196 (1835); McCandlish v. Keen, 54 Va. (13 Gratt.) 615 (1857); Brewis v. Lawson, 76 Va. 36 (1881); Litterall v. Jackson, 80 Va. 64 (1885); Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 (1887); Beckham v. Duncan, 1 Va. Dec. 694, 9 S.E. 1002 (1889); Catron v. Bostic, 123 Va. 355 , 96 S.E. 845 (1918).

The creditors have their remedy against the heirs to subject the real estate which is made assets for the payment of their debts by this section, but the administrator has no such right. Catron v. Bostic, 123 Va. 355 , 96 S.E. 845 (1918).

And creditors claiming under this section are not included in § 55-96. McCandlish v. Keen, 54 Va. (13 Gratt.) 615 (1857).

Dower lands exempt as assets. - After exhaustion of decedent's personalty, his lands in possession of his heirs or devisees are liable for his debts, but not his land in possession of his widow as her dower during her estate therein. Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 (1889).

Sufficiency of rents not an issue. - In a suit to subject the lands of a decedent to the payment of his debts, under this section, the sufficiency of the rents to discharge a judgment debt is not an issue. Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203 (1943).

CIRCUIT COURT OPINIONS

This section does not make a decedent's real property part of the estate. - While § 64.1-181 allows a creditor to maintain a suit against a devisee or heir to subject a decedent's real property to the decedent's debts, it does not make the decedent's real property part of the estate. In re Estate of Trent, 58 Va. Cir. 83, 2001 Va. Cir. LEXIS 395 (Richmond 2001).

Agreement to provide care to decedent in exchange for decedent's home. - Sister's agreement to return to a decedent's city and care for the decedent in the decedent's waning years in exchange for the decedent to convey to the sister the decedent's home was made (as corroborated, under § 8.01-397 , by three witnesses to the decedent's statements), substantially performed, and specifically enforceable against the executor of the decedent's estate (even though the decedent made no provision for the sister in the decedent's most recent will). Fauntleroy v. Borden, 63 Va. Cir. 144, 2003 Va. Cir. LEXIS 342 (Richmond 2003).

Decedent a joint tenant. - Creditor was not entitled to proceed against the real estate of a deceased joint tenant to satisfy the balance due on a note held bythe creditor when the creditor's complaint was filed subsequent to the tenant's death because the tenant's previously held joint interest had left the tenant's estate almost a year earlier. First Nat'l Bank v. Sowers,, 2020 Va. Cir. LEXIS 506 (Floyd County Nov. 17, 2020).

§ 64.2-533. Administration of assets for payment of debts.

The circuit court in which a report of the accounts of a decedent's personal representative and of the debts and demands against the decedent's estate is or may be filed may administer the real estate of the decedent in the possession of the decedent's personal representative that is an asset for the payment of the decedent's debts and demands against the decedent's estate, or any circuit court may administer such real estate.

(Code 1950, § 64-172; 1968, c. 656, § 64.1-182; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 54.

§ 64.2-534. Liability of heir or devisee for value of real estate sold and conveyed; validity of premature conveyances.

  1. Any heir or devisee who sells and conveys any real estate that is an asset for the payment of a decedent's debts or lawful demands against his estate pursuant to § 64.2-532 is liable for the value of such real estate, with interest, to those persons entitled to be paid out of the real estate.
  2. Notwithstanding the provisions of subsection A, the real estate sold or conveyed is not liable to those persons entitled to be paid out of the real estate provided that (i) the sale was made more than one year after the death of the decedent, (ii) the conveyance was bona fide, and (iii) at the time of such conveyance, no action has been commenced for the administration of the real estate and no reports have been filed of the debts and demands of such creditors.
  3. No sale and conveyance of such real estate made by an heir or devisee within one year after the death of the decedent is valid against creditors of such decedent, except as otherwise provided in § 64.2-535 , provided that any sale and conveyance made within one year after the death of a decedent is valid against creditors as if it were made more than one year after the death of the decedent if no action has been commenced for the administration of the real estate and no report of the debts and demands has been filed within one year after the death of the decedent. (Code 1950, § 64-173; 1950, p. 606; 1968, c. 656, § 64.1-183; 2012, c. 614; 2015, c. 332.)

The 2015 amendments. - The 2015 amendment by c. 332 substituted subsection B for the second sentence of subsection A, which read "However, the heir or devisee is not liable to such persons provided that (i) the conveyance was bona fide, and (ii) at the time of such conveyance, no action has been commenced for the administration of the real estate and no reports have been filed of the debts and demands of such creditors."; redesignated former subsection B as subsection C and deleted "Notwithstanding the provisions of subsection A," at the beginning; and substituted " § 64.2-535 , provided that any sale" for " § 64.2-535 . C. Any sale."

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 120, 130.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

This section is to be read in connection with §§ 8.01-268 , 8.01-269 , and the commencement of a suit for administration of assets will not carry notice unless the required memorandum of lis pendens has been filed. Easley v. Barksdale, 75 Va. 274 (1881).

It was intended by the legislature that lands sold and conveyed by an heir or devisee, after report filed, shall be liable in the hands of the purchaser for the debts of the decedent, while lands sold and conveyed pendente lite to a purchaser, without actual notice of the lis pendens, shall not be bound by such lis pendens, unless the provisions of §§ 8.01-268 , 8.01-269 are complied with. Easley v. Barksdale, 75 Va. 274 (1881).

Purpose and effect. - The object and effect of this section are twofold: First, to protect the creditor or other person entitled to be paid out of the real estate declared to be assets, by making the heir or devisee personally liable for the value, with interest, of such estate when sold and conveyed of him; second, to protect a bona fide purchaser of such estate under a conveyance made before the commencement of suit for the administration of the assets, or the filing of any such report as is described. Easley v. Barksdale, 75 Va. 274 (1881).

Creditor has quasi lien. - The provision that no alienation of estate within one year after death of decedent shall be valid gives the creditor a quasi lien on the realty of the decedent for a period of one year. Heeke v. Allan, 127 Va. 65 , 102 S.E. 655 (1920).

It is not affected by partition in kind. - Under this section a partition in kind, in pais, among the parties could not defeat the valid lien of the creditors, nor could the lien be affected by a partition in kind ordered by the court. Lowry v. Noell, 177 Va. 238 , 13 S.E.2d 312 (1941).

Effect of conveyance within one year as between the parties thereto. - Although the heir or devisee cannot within one year make a valid conveyance, as against creditors of the decedent, he can make a conveyance which is valid as between the parties, and the alienee can, after the expiration of the year, transfer title to a bona fide purchaser free from the claim of the decedent's creditors, if no suit is pending and no report of debts has been filed. Heeke v. Allan, 127 Va. 65 , 102 S.E. 655 (1920).

§ 64.2-535. When sale and conveyance within one year valid against creditors; proceeds paid to special commissioner; bond to obtain proceeds.

  1. For purposes of this section:

    "Net proceeds" means the purchase price for the real estate, including money, deferred purchase money obligations, and other securities, remaining after the payment of the expenses of sale ordinarily paid by the seller in sales of such real estate and the discharge of indebtedness and encumbrances that the real estate is primarily liable for by law.

  2. Any sale and conveyance of real estate that is an asset for the payment of a decedent's debts or lawful demands against his estate pursuant to § 64.2-532 made within one year after the death of the decedent is valid against creditors of such decedent, if such real estate is sold and conveyed pursuant to a decree of a court of competent jurisdiction in an action for partition, sale of lands of persons under a disability, or other judicial sale, and the net proceeds of sale are paid to a special commissioner appointed by the court.
  3. The special commissioner shall hold the net proceeds paid to him in lieu of the real estate subject to the claims of the decedent's creditors in the same manner and to the same extent as such real estate would have been if not sold until at least one year after the death of the decedent. If no claim has been asserted against the net proceeds, the special commissioner shall distribute the net proceeds to those creditors entitled thereto in proportion to their interest in the real estate upon (i) the expiration of the one-year period or (ii) at any time within the one-year period upon posting bond with such surety as may be prescribed by the court to secure any claims against the real estate or net proceeds.
  4. A purchaser of any real estate sold and conveyed in accordance with this section is not required to see to the application of the purchase money.
  5. The special commissioner who receives and holds such net proceeds or refunding bond shall give such bond as required by the court appointing him.

    (Code 1950, § 64-173.1; 1968, c. 656, § 64.1-184; 1996, c. 65; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 5-515 Decree Confirming Sale - On Private Offer; No. 15-465 Refunding Bond; No. 16-512 Deed by Heirs.

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 50.

§ 64.2-536. Liability of heir or devisee; action by personal representative or creditor; recording notice of lis pendens; evidence.

An heir or devisee may be sued by the personal representative or any creditor to whom a claim is due for which the estate descended or devised is liable, or for which the heir or devisee is liable with regard to such estate. Any judgment for such a claim entered against the personal representative of the decedent is prima facie evidence of the claim against the heir or devisee in a suit against the heir or devisee by the personal representative or any creditor. In any suit by the personal representative or any creditor pursuant to this article, he shall record a notice of lis pendens as required by § 8.01-268 at the time of filing such suit. The personal representative or creditor has the burden to show to the satisfaction of the court that there are not sufficient personal assets in the estate to satisfy all claims against the estate.

(Code 1950, § 64-174; 1968, cc. 515, 656, § 64.1-185; 2012, c. 614.)

Law review. - For comment on a personal representative's power to sell realty in Virginia, see 15 Wm. & Mary L. Rev. 949 (1974).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 120, 130, 140, 143, 144.

CASE NOTES

Proceeding under this section is in the nature of a proceeding in rem, and there is no personal liability upon the heir or devisee unless real estate of decedent has come into his possession and then only to the extent of its value. Kidwell v. Henderson, 150 Va. 829 , 143 S.E. 336 (1928) (decided under prior law).

Only judgments rendered since February 19, 1884 can be used as evidence. - Only judgments rendered since February 19, 1884, against personal representatives could be used as evidence against decedent's heirs and devisees. Staples v. Staples, 85 Va. 76 , 7 S.E. 199 (1888), citing Brewis v. Lawson, 76 Va. 36 (1881) (decided under prior law).

§ 64.2-537. Action to enforce claim of less than $100; notice.

No action may be brought pursuant to this article where the amount of the claim does not exceed $100, unless, at least 30 days before the action was filed, the person or estate that is liable has been given notice that such action would be brought if the amount of the claim was not paid within such time.

(Code 1950, § 64-175; 1968, c. 656, § 64.1-186; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$100" for "$20."

§ 64.2-538. Lien acquired during lifetime of decedent not affected.

This article shall not affect any lien acquired during the lifetime of the decedent.

(Code 1950, § 64-176; 1968, c. 656, § 64.1-187; 2012, c. 614.)

Article 7. Apportionment of Estate Taxes.

§ 64.2-539. Definitions.

For the purposes of this article:

"Gross estate" includes any property or interest that is required to be included in the gross estate of the decedent under the estate tax law of the United States, increased by any "adjusted taxable gifts" as defined in § 2001(b) of the Internal Revenue Code.

"Persons interested in the estate" includes all persons, firms, and corporations who may be entitled to receive or who have received any property or interest that is required to be included in the gross estate of the decedent or any benefit whatsoever with respect to any such property or interest, whether under a will, by intestacy, or by reason of any transfer, trust, estate, interest, right, power, or relinquishment of power taxable under any estate tax law of the Commonwealth, any other state, or the United States heretofore or hereafter enacted.

(Code 1950, § 64-150; 1968, c. 656, § 64.1-160; 1979, c. 559; 1981, c. 98; 1994, c. 917; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 165.

§ 64.2-540. Apportionment required.

  1. Except as provided in subsection B, whenever it appears upon any settlement of accounts or in any other appropriate action or proceeding that an executor, administrator, curator, trustee, or other person acting in a fiduciary capacity has paid an estate tax levied or assessed under the provisions of any estate tax law of the Commonwealth, any other state, or the United States, upon or with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the tax so paid, together with any interest and penalty required by the taxing authority to be paid, shall be prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. Such apportionment shall be made in the proportion that the value of the property, interest, or benefit of each such person bears to the total value of the property, interests, and benefits received by all such persons interested in the estate. However, in making such proration each person shall have the benefit of any exemptions, deductions, and exclusions allowed by law in respect of the person or the property passing to him, and where a trust is created or other provision is made giving a person an interest in income, an estate for years, an estate for life, or any other temporary interest or estate in any property or fund, the tax on such temporary interest or estate shall be charged against and paid out of the corpus of such property or fund without apportionment between the temporary interests or estates and any remainder interests, and any interest and penalty required by the taxing authority to be paid may be charged against either the temporary interest, estate, or corpus, or partially against the temporary interest, estate, or corpus, as determined by the fiduciary paying the tax, provided that the determination is made so as to fairly balance all interests in the property or fund.
  2. The amount of tax paid upon or with respect to property included in the decedent's gross estate under § 2044 of the Internal Revenue Code, as amended, or any successor provision relating to certain property for which the marital deduction was previously allowed, shall be the excess of (i) the total estate tax levied or assessed under the provisions of the estate tax laws of the Commonwealth, any other state, and the United States over (ii) the estate tax that would have been levied or assessed under those provisions if the § 2044 property had not been included in the gross estate. The tax paid upon or with respect to the § 2044 property shall be prorated according to subsection A as if no other estate tax were payable under the laws of the Commonwealth, any other state, and the United States, and as if the § 2044 property constituted the entire gross estate; but it shall be prorated only among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit of such property accrues. The tax determined under clause (ii) shall be prorated according to subsection A as if no other estate tax were payable under the laws of the Commonwealth, any other state, and the United States, and as if the § 2044 property were not included in the gross estate. This subsection shall apply only to estates of persons dying on or after July 1, 1986.
  3. The personal representative of an estate which for tax purposes includes § 2044 property owes a duty of good faith and fair dealing to all persons interested in the estate to whom or for whom the § 2044 property may be transferred or held. The duty of good faith includes a duty to keep such persons or their designated representative reasonably informed as to the contents of the returns to be filed and as to all administrative and judicial proceedings that concern the taxes to be paid with respect to the § 2044 property, and to provide copies of the relevant portions of all returns to be filed with respect to such taxes. The designated representative of such persons shall be invited to attend any administrative conference or proceeding where valuation issues may be discussed that would have a bearing on the taxes to be paid with respect to the § 2044 property. This subsection shall apply only to estates of persons for which a federal estate tax return is required to be filed on or after July 1, 1994.

    (Code 1950, § 64-151; 1952, c. 294; 1954, c. 664; 1968, c. 656, § 64.1-161; 1979, c. 559; 1986, c. 399; 1994, c. 917; 1997, c. 254; 2012, c. 614.)

Law review. - For survey of Virginia law on taxation for the year 1972-1973, see 59 Va. L. Rev. 1584 (1973). For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Purpose. - The Virginia apportionment statute was designed to give to the widow the benefit of any exemptions, deductions and exclusions allowed by federal law. However, § 64.1-165 expressly preserves the right of a testator to designate such part of his assets as he desires to bear the burden of all taxes. Baylor v. National Bank of Commerce, 194 Va. 1 , 72 S.E.2d 282 (1952).

The Virginia apportionment statutes were designed to give a widow the benefit of any exemptions, deductions and exclusions allowed by federal law, unless the decedent directs otherwise as provided in § 64.1-165. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Estate taxes should be equitably apportioned among taxable legatees. - This section is based on the principle that estate taxes should be equitably apportioned among the taxable legatees. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Without an apportionment statute, the burden of estate taxes, unless otherwise directed by the testator, would fall upon the residuary estate, which ordinarily benefits the natural objects of the testator's generosity. To correct this apparent inequity, Virginia, along with a number of other states, has enacted an apportionment statute. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Taxes are paid by fund bearing administration expenses where there is no express designation of the fund to be burdened with the taxes. Testator's command, "I desire," is implicitly addressed to the executors, and, therefore, where there is no express designation of the fund to be burdened with taxes, there is an implied direction that the taxes are to be paid from the fund which bears the burden of debts and administration expenses. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

This section is subsequent in time to the passage of § 64.1-11, and when a later act of the legislature is clear and unambiguous in its terms and deals fully and completely with the subject, if there is any repugnancy between it and an earlier statute the earlier yields to the later expression of the legislative will. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Legislature intended to give a surviving spouse the benefit of the marital deduction allowed under the federal estate tax law. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

Thus, statutory share of widow not burdened by federal estate taxes. - See Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

This section is based on the principle that federal estate taxes should be borne by those who receive property which has been included in the taxable estate, and that property which has not been included in determining the tax shall not bear any part of the tax burden. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723 (1973).

When determining whether a will falls under the apportionment or anti-apportionment statute, the pertinent inquiry is whether the will discloses an intention by the testator that the burden of estate taxes should fall entirely upon the probate estate, contrary to the statutory rule of apportionment. In responding to this query, courts apply ordinary rules of construction relating to wills. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Language of will held to relieve executors from the necessity of complying with the apportionment statute. - The trial court correctly ruled that the language of the testator's will demonstrated the testator's intention to relieve the executors from the necessity of complying with the requirements of the apportionment statute where the will provided: "I desire my just debts and all expenses of the administration of my estate, including such taxes . . . paid as soon after my death as practicable." Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Testator demonstrated intent that charges not be apportioned. - By specifying in will that estate taxes, debts, funeral expenses, and administration costs be paid from the residuary estate, testator demonstrated his intent that all these charges be treated in the same manner, thus satisfying the requirements of the anti-apportionment statute. Any estate taxes outstanding after exhaustion of the residuary estate, therefore, should not be apportioned but should be charged generally against the probate estate. Stickley v. Stickley, 255 Va. 405 , 497 S.E.2d 862 (1998).

CIRCUIT COURT OPINIONS

Estate taxes should be equitably appportioned among taxable legatees. - Testator did not manifest an intention regarding how the payment of taxes for his estate should be apportioned, and, thus, payment of the estate taxes was to be apportioned to all beneficiaries under § 64.1-161 based on the principle that estate taxes should be equitably apportioned among the taxable legatees in proportion that the value of the interest of each such person bore to the interest received by all such persons interested in the estate. In re King, 63 Va. Cir. 362, 2003 Va. Cir. LEXIS 210 (Fairfax County 2003) (decided under prior law).

§ 64.2-541. Recovery by executor when part of estate not in his possession.

If any property required to be included in the gross estate is not in the possession of the executor, administrator, or other fiduciary, he shall recover from the person who is in possession of such property, or from the persons interested in the estate, the amount of tax payable by the persons interested in the estate that is chargeable to such persons under the provisions of this article.

(Code 1950, § 64-152; 1968, c. 656, § 64.1-162; 1986, c. 399; 2012, c. 614.)

§ 64.2-542. Transfers not required until tax ascertained or security given.

An executor, administrator, or other fiduciary is not required to transfer, pay over, or distribute any fund or property subject to an estate tax imposed by the Commonwealth, any other state, or the United States until the devisee, legatee, distributee, or other person to whom such property is transferred pays such fiduciary the amount of such tax due, or, if the apportionment of tax has not been determined, furnishes adequate security for such payment.

(Code 1950, § 64-153; 1968, c. 656, § 64.1-163; 1994, c. 917; 2012, c. 614.)

§ 64.2-543. Contrary provisions of will or other instrument to govern.

  1. For purposes of this section:

    "Includable beneficial interest" means any property, interest, or benefit included in a person's estate for estate tax purposes that passes pursuant to an instrument other than such person's will.

  2. The provisions of this article shall not impair the right or power of any person by will or by written instrument executed inter vivos to make direction for the payment of estate taxes and to designate the fund or property out of which such payment shall be made. Such designated funds or property may, in addition to any property passing by testate or intestate succession, include any includable beneficial interest. Unless a larger amount is charged to a specific includable beneficial interest by the instrument creating the interest, the maximum amount of tax that each such includable beneficial interest may be charged shall be limited to its share, as determined pursuant to § 64.2-540 for the apportionment of taxes. (Code 1950, § 64-155; 1968, c. 656, § 64.1-165; 1994, c. 917; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

Apportionment statutes preserve testator's right to designate assets to bear tax burden. - The statutes dealing with apportionment, found in this article, expressly preserve the right of a testator to designate such parts of his assets as he desires to bear the burden of all taxes. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Taxes are paid by fund bearing administration expenses where there is no express designation of the fund to be burdened with the taxes. Testator's command, "I desire," is implicitly addressed to the executors and therefore where there is no express designation of the fund to be burdened with taxes, there is an implied direction that the taxes are to be paid from the fund which bears the burden of debts and administration expenses. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

When determining whether a will falls under the apportionment or anti-apportionment statute, the pertinent inquiry is whether the will discloses an intention by the testator that the burden of estate taxes should fall entirely upon the probable estate, contrary to the statutory rule of apportionment. In responding to this query, courts apply ordinary rules of construction relating to wills. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Precatory words expressing desire, recommendation, or request are uniformly considered imperative when addressed to an executor. Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Language of will held to relieve executors from necessity of complying with apportionment statute. - Trial court correctly ruled that the language of testator's will demonstrated the testator's intention to relieve the executors from the necessity of complying with the requirements of the apportionment statute where the will provided: "I desire my just debts and all expenses of the administration of my estate, including such taxes . . . paid as soon after my death as practicable." Lynchburg College v. Central Fid. Bank, 242 Va. 292 , 410 S.E.2d 617 (1991).

Intent contrary to statutory rule shown. - Will held to disclose intention that payment of taxes should be made contrary to the statutory rule. Simeone v. Smith, 204 Va. 860 , 134 S.E.2d 281 (1964).

Testator demonstrated intent that charges not be apportioned. - By specifying in will that estate taxes, debts, funeral expenses, and administration costs be paid from the residuary estate, testator demonstrated his intent that all these charges be treated in the same manner, thus satisfying the requirements of the anti-apportionment statute. Any estate taxes outstanding after exhaustion of the residuary estate, therefore, should not be apportioned but should be charged generally against the probate estate. Stickley v. Stickley, 255 Va. 405 , 497 S.E.2d 862 (1998).

CIRCUIT COURT OPINIONS

Language contained in both will and pour over trust showed that a testator intended that federal and state estate taxes should be paid by the non-charitable beneficiaries of the pour over trust rather than from the residuary estate prior to its transfer to the trust. Johnson v. Trust Co., 61 Va. Cir. 306, 2003 Va. Cir. LEXIS 153 (Roanoke County 2003).

Where testator did not demonstrate intent regarding apportionment of estate taxes. - Testator did not manifest an intention regarding how the payment of taxes for his estate should be apportioned, and, thus, payment of the estate taxes was to be apportioned to all beneficiaries under § 64.1-161 based on the principle that estate taxes should be equitably apportioned among the taxable legatees in proportion that the value of the interest each such person bore to the interest received by all such persons interested in the estate. In re King, 63 Va. Cir. 362, 2003 Va. Cir. LEXIS 210 (Fairfax County 2003).

§ 64.2-544. Construction of direction to pay all taxes imposed on account of testator's death.

  1. A general direction in a will, trust instrument, or other document to pay all taxes imposed on account of a testator's or settlor's death or similar language shall not be construed to include the following taxes unless the testator or settlor expressly manifests an intention that such taxes be paid out of his estate, trust, or other property by reference to the particular chapter, title, or section of the Internal Revenue Code providing for such taxes:
    1. Additional tax imposed upon disposition or cessation of qualified use by the qualified heir with respect to qualified use property under § 2032A;
    2. Taxes on general power of appointment property includable in the estate of the testator or settlor under § 2041;
    3. Taxes on qualified terminable interest property includable in the estate of the testator or settlor under § 2044;
    4. Taxes payable under § 2056A, upon a taxable event with respect to a qualified domestic trust as defined in that section;
    5. Any generation-skipping transfer tax under Chapter 13 except direct skips occurring at death for estates of decedents dying on or after July 1, 1994; and
    6. Taxes payable under § 4980A, on excess retirement accumulation.
  2. Unless a contrary intention is manifest, such taxes shall be apportioned and charged to each item of funds or property generating them in the manner provided in this article.
  3. The reference in subsection A to any section or chapter is to the Internal Revenue Code of 1986, as amended, and shall be deemed to refer to any corresponding successor sections, chapters, or Code.

    (1994, c. 917, § 64.1-165.1; 2012, c. 614.)

Editor's note. - Section 4980A of the Internal Revenue Code was repealed Aug. 5, 1997.

Article 8. Liability of Representatives; Administrators de Bonis Non.

§ 64.2-545. Transfer of assets to administrator de bonis non; administration of assets.

  1. If the powers of a personal representative have ceased and there is an administrator de bonis non of the decedent's estate, the personal representative may pay and deliver to such administrator de bonis non, with the consent of the court or clerk before which the administrator de bonis non qualified, the assets of the decedent, whether converted or not, for which such former personal representative is responsible. The court or clerk shall not consent to the payment and delivery of such assets to the administrator de bonis non unless the administrator de bonis non gives a bond sufficient to cover the additional assets to be paid or delivered to him. The administrator de bonis non shall administer such assets paid or delivered to him as assets received in due course of administration. The administrator de bonis non shall provide a receipt for such assets in the form of a voucher in the settlement of the accounts of the former personal representative. The former personal representative shall not be liable for the assets lawfully paid or delivered to the administrator de bonis non.
  2. The administrator de bonis non may bring an action against the former personal representative or his estate for mismanagement or to compel the payment and delivery to the administrator de bonis non of the assets of the decedent that were wrongfully converted by the former personal representative.
  3. Nothing contained in this section shall (i) limit the liability of the former personal representative and his sureties for any breach of duty committed by him with respect to the assets of the decedent's estate before they were paid over and delivered to the administrator de bonis non by him or (ii) bar the beneficiaries, creditors, or any other parties in interest from bringing any action against the former personal representative for his acts or omissions while serving as the personal representative.

    (Code 1950, § 64-156; 1968, c. 656, § 64.1-166; 1991, c. 58; 2012, c. 614.)

Law review. - For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).

§ 64.2-546. Action against representative of executor for waste.

An action may be maintained for waste of a decedent's estate against (i) the personal representative of a person who, without any lawful authority, assumes to act as an executor or (ii) the personal representative of a rightful executor or administrator.

(Code 1950, § 64-157; 1968, c. 656, § 64.1-167; 2012, c. 614.)

Law review. - For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 84.

§ 64.2-547. Revival of judgment by administrator de bonis non.

If an action is pending or a judgment has been rendered in the Commonwealth in favor of a personal representative upon a contract made during or for a cause of action that accrued in the lifetime of the decedent, the administrator de bonis non of the decedent may petition for execution upon such judgment, or to revive the pending action if the personal representative who brought the action could have maintained the same.

(Code 1950, § 64-158; 1968, c. 656, § 64.1-168; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 336.

CASE NOTES

Right of revival is a statutory right; therefore, in the absence of statute authorizing it, no suit can be revived. Ashby v. Harrison's Comm., 1 Pat. & H. 1 (1855) (decided under prior law).

§ 64.2-548. Action against surety of personal representative; procedure.

  1. An action may be brought against the surety of the personal representative for failure of the personal representative to discharge his duties faithfully if an execution on a judgment against a personal representative is returned unsatisfied.
  2. The surety may plead any pleas and offer any evidence that the personal representative could have made or offered in an action against the surety of the personal representative for a devastavit.

    (Code 1950, §§ 64-159, 64-160; 1968, c. 656, §§ 64.1-169, 64.1-170; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 271, 274.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

This section is retrospective as to the issuing and return of the execution, as well as the recovery of judgment. Allen v. Cunningham, 30 Va. (3 Leigh) 395 (1831).

Creditor of decedent may sue. - A creditor of a decedent, who has obtained a decree de bonis testatoris against the executor, on which an execution has issued, and has been returned nulla bona, may maintain an action against the executor, and his sureties on the executorial bond. Kent's Adm'r v. Cloyd's Adm'r, 71 Va. (30 Gratt.) 555 (1878); Braxton v. Winslow, 8 Va. (4 Call) 308 (1791); Meade v. Brooking, 17 Va. (3 Munf.) 548 (1811); Bush v. Beale, 42 Va. (1 Gratt.) 229 (1844).

This section applies to creditors by decree, as well as those by judgment. Bush v. Beale, 42 Va. (1 Gratt.) 229 (1844).

Administrator de bonis non. - Where an administrator recovers judgment against an administratrix on a debt due plaintiffs' intestate, and sues out a fieri facias which is returned nulla bona, and plaintiff dies and administrator de bonis non is granted, an action of debt lies at the relation of the administrator de bonis non on defendant's administration bond, and not at the relation of the representative of plaintiff's administrator. Allen v. Cunningham, 30 Va. (3 Leigh) 395 (1831).

The administrator de bonis non need not, in order to entitle himself to put the administration bond in suit, bring scire facias or action of debt on the judgment recovered by the first administrator. Allen v. Cunningham, 30 Va. (3 Leigh) 395 (1831).

Assignee of legatee. - An action cannot be maintained on an executor's bond at the relation of an assignee of a legatee of a decree for a legacy, such action only being maintainable at the relation of the person who has the legal right to the debt. Burnett v. Harwell, 30 Va. (3 Leigh) 89 (1831).

Uniform practice in Virginia permits a legatee to join in one suit, an executor and his surety wherever there is an attempt to discover assets or to surcharge and falsify an ex parte settlement. Koteen v. Bickers, 163 Va. 676 , 177 S.E. 904 (1934).

Necessity for demand on executor. - Although in the case of a creditor, a demand must be established against an executor before a suit can be brought on the administration bond, yet in the case of a legatee, a suit in equity may be brought upon it in the first instance, because the decree can be made so as to operate against the executor in the first instance, and an account of the assets can be taken at once. Koteen v. Bickers, 163 Va. 676 , 177 S.E. 904 (1934).

Proof of devastavit may be supplied by an ex parte settlement, for such settlement is prima facie evidence of matters there set out. Koteen v. Bickers, 163 Va. 676 , 177 S.E. 904 (1934).

Return of nulla bona. - A fieri facias on judgment against an administrator was returned "no unadministered or unencumbered effects found"; this was a return nulla bona, to entitle the plaintiff to an action on the administrator's bond. Allen v. Cunningham, 30 Va. (3 Leigh) 395 (1831).

Equitable relief against judgment. - Notwithstanding a judgment against administrators, as such, in an action of debt, to which they pleaded "payment by the intestate," and a subsequent judgment, against them personally, in an action suggesting a devastavit, to which they pleaded "no waste," relief in equity was granted them on the grounds that the peculiar and perplexed state of the assets made it difficult, if not impracticable, to plead in relation thereto, at law; and that, at the trial of the second action, their principal counsel was absent, and their assistant counsel withdrew from the cause, in consequence whereof they were wholly undefended, and a verdict, perhaps contrary to justice, was obtained against them, without any negligence or default on their part. Pendleton's Adm'rs v. Stuart, 20 Va. (6 Munf.) 377 (1819).

For unexpected depreciation of property. - Where an executor confesses judgments, and gives forthcoming bonds, for debts due by his testator, under the belief that the assets of the estate are amply sufficient to pay all claims against it, but afterwards, by an unexpected depreciation of property, the amount of assets proves inadequate, the executor will be relieved in equity. Miller's Ex'rs v. Rice, 22 Va. (1 Rand.) 438 (1823).

§ 64.2-549. Liability of personal representative or his surety.

The liability of a personal representative or his surety shall not exceed the assets of the decedent by reason of any omission or mistake in pleading or false pleading by such representative.

(Code 1950, § 64-160; 1968, c. 656, § 64.1-170; 2012, c. 614.)

CASE NOTES

For unexpected depreciation of property. - Where an executor confesses judgments, and gives forthcoming bonds, for debts due by his testator, under the belief that the assets of the estate are amply sufficient to pay all claims against it, but afterwards, by an unexpected depreciation of property, the amount of assets proves inadequate, the executor will be relieved in equity. Miller's Ex'rs v. Rice, 22 Va. (1 Rand.) 438 (1823)(decided under prior law).

For recovery of assets by paramount title. - An executor against whom judgments have been obtained may be relieved in equity upon showing that assets sufficient to pay all the debts came into his hands, but that a large portion of them has since been recovered by paramount title. Royall's Adm'rs v. Johnson, 22 Va. (1 Rand.) 421 (1823)(decided under prior law).

Article 9. Settlement of Accounts and Distribution.

§ 64.2-550. Proceedings for receiving proof of debts by commissioners of accounts.

  1. A commissioner of accounts who has for settlement the accounts of a personal representative of a decedent shall, when requested to so do by a personal representative or any creditor, legatee, or distributee of a decedent, or may at any other time determined by the commissioner of accounts, even though no accounting is pending, conduct a hearing for receiving proof of debts and demands against the decedent or the decedent's estate. The commissioner of accounts shall publish notice of the hearing at least 10 days before the date set for the hearing in a newspaper published or having general circulation in the jurisdiction where the personal representative qualified. and shall also post a notice of the time and place of the hearing at the front door of the courthouse of the court of the jurisdiction where the personal representative qualified. The commissioner of accounts may adjourn the hearing from time to time as necessary.
  2. The personal representative shall give written notice by personal service or by regular, certified, or registered mail at least 10 days before the date set for the hearing to any claimant of a disputed claim that is known to the personal representative at the last address of the claimant known to the personal representative. The notice shall inform the claimant of his right to attend the hearing and present his case, his right to obtain another hearing date if the commissioner of accounts finds the initial date inappropriate, and the fact that the claimant will be bound by any adverse ruling. The personal representative shall also inform the claimant of his right to file exceptions with the circuit court in the event of an adverse ruling. The personal representative shall file proof of any mailing or service of notice with the commissioner of accounts.
  3. The commissioner of accounts may direct the personal representative, the claimant, or both of them to institute a proceeding in the circuit court to establish the validity or invalidity of any claim or demand that the commissioner of accounts deems not otherwise sufficiently proved.

    (Code 1950, §§ 64-161, 64-162; 1966, c. 335; 1968, cc. 385, 656, §§ 64.1-171, 64.1-172; 1981, c. 484; 1989, c. 492; 2012, c. 614.)

Law review. - For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982). For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 104.

CASE NOTES

Purpose. - The object of §§ 64.1-171 through 64.1-173 is to afford a prompt, certain, efficient and inexpensive method for the settlement of accounts of personal representatives and the distribution of estates. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957) (decided under prior law).

Claim based on lost instrument. - There was no merit in the contention that because the note evidencing a debt of a decedent was lost the creditor was required to bring an action under § 8.01-32 against the executor, and precluded from proving her claim before a commissioner of accounts under §§ 64.1-171 through 64.1-173. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957) (decided under prior law).

§ 64.2-551. Account of debts by commissioners of accounts.

The commissioner of accounts, within 60 days from the date of the hearing for receiving proof of debts and demands against the decedent or the decedent's estate or the date of the last adjournment of any such hearing, shall make out an account of all such debts or demands as have been sufficiently proved, stating separately the debts and demands of each class.

(Code 1950, § 64-162; 1966, c. 335; 1968, c. 656, § 64.1-172; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 104.

§ 64.2-552. How claims filed before commissioners of accounts; tolling of limitations period.

  1. Any person who seeks to prove that he has a debt or demand against the decedent or the decedent's estate shall file his claim in writing with the commissioner of accounts, who shall endorse upon it the date of the filing and sign the endorsement in his official character.
  2. If the commissioner of accounts recommends in writing the recovery or enforcement of a claim for a debt or demand against the decedent or the decedent's estate, the filing of such claim with the commissioner of accounts pursuant to subsection A shall toll any limitations period that would otherwise bar an action for the recovery or enforcement of the claim or bar the filing of such claim until the termination of the proceedings commenced under § 64.2-550 . (Code 1950, § 64-163; 1968, c. 656, § 64.1-173; 1989, c. 492; 2012, c. 614.)

Law review. - For survey on wills, trusts, and estates in Virginia for 1989, see 23 U. Rich. L. Rev. 859 (1989).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 104.

§ 64.2-553. When court to order payment of debts.

  1. Upon confirmation of a report of the accounts of any personal representative and of the debts and demands against the decedent's estate pursuant to Chapter 12 (§ 64.2-1200 et seq.), the court shall order that so much of the estate in the possession of the personal representative as is proper be applied to the payment of such debts and demands. The court, in its discretion, may order that a portion of the estate be reserved to pay all or a proportion of a claim of a surety for the decedent or any other contingent claim against the estate, or to pay all or a proportion of any other claim not finally passed upon, provided that creditors of the same class shall be paid in the same proportion.
  2. For any claim allowed subsequent to any dividend where the court ordered that a portion of the estate be reserved to pay such a claim, the court shall order that the claim be paid from the estate in the possession of the personal representative, regardless of the existence of any debt or demand of superior dignity for which no reservation has been ordered. The claim shall be paid in the same proportion as creditors of the same class, provided, however, that whether there be enough reserved to pay the claim pursuant to this subsection shall not affect any dividend already paid.
  3. If there are assets remaining in the possession of the personal representative after claims are paid pursuant to subsections A and B, or if further assets come into the possession of the personal representative, such surplus shall be divided among all the decedent's creditors who have proved debts and demands against the decedent's estate in the order and proportion in which they may be entitled.

    (Code 1950, §§ 64-164, 64-165, 64-166; 1968, c. 656, §§ 64.1-174, 64.1-175, 64.1-176; 2012, c. 614.)

Law review. - For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

§ 64.2-554. When distribution may be required; refunding bond.

A personal representative shall not be compelled to pay any legacy made in the will or to distribute the estate of the decedent for six months from the date of the order conferring authority on the first executor or administrator of such decedent and, except when it is otherwise specifically provided for in the will, the personal representative shall not be compelled to make such payment or distribution until the legatee or distributee gives a bond, executed by himself or some other person, with sufficient surety, to refund a due proportion of any debts or demands subsequently proved against the decedent or the decedent's estate and of the costs of the recovery of such debts or demands. Such bond shall be filed and recorded in the clerk's office of the court that may have decreed such payment or distribution or in which the accounts of such representative may be recorded.

(Code 1950, § 64-167; 1968, c. 656, § 64.1-177; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 162, 182.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

This article is full, ample and complete, and protects every interest as amply as could be done by a formal suit in chancery. Carter v. Skillman, 108 Va. 204 , 60 S.E. 775 (1908).

Personal representative has the right to waive a refunding bond, but the intention to do so must be very clear. He does not waive bond by assenting to a specific legacy. Nelson's Adm'r v. Cornwell, 52 Va. (11 Gratt.) 724 (1854).

But waiver may render him personally liable to creditors. - Where the assets in the hands of an executor are insufficient to pay all the debts of the estate and he makes distribution of the estate without requiring a refunding bond from the legatees or distributees, he is personally liable to creditors for the funds so improperly distributed. Lewis v. Overby's Adm'r, 72 Va. (31 Gratt.) 601 (1879); Morrison v. Lavell, 81 Va. 519 (1886).

Where there is insufficient personal estate to pay all debts, the administrator, although he may have no actual notice of their existence, takes the risk of personal liability for payment of debts if he distributes the personal estate before awaiting the 12 (now six) months allowed by statute for presentation of debts and before then obtaining protection from personal liability therefor by refunding bonds, or before such protection is afforded him by order of court under § 64.1-179, unless the creditor's laches or other conduct thereafter should bar the demand. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919); Herelick v. Southern Dry Goods & Notion Co., 139 Va. 121 , 123 S.E. 529 (1924).

Where there are creditors, and where the administrator has not, but merely expects to have in hand, or expects that there will be from some other source, sufficient assets to pay all debts, and, from any cause whatever, other than vis major, there is not such sufficiency of assets, the rule in the above paragraph is applicable. Herelick v. Southern Dry Goods & Notion Co., 139 Va. 121 , 123 S.E. 529 (1924).

Section sets time when legacies and interest payable. - Pursuant to this section, a general legacy payable in no special manner, where the will is silent as to time of payment and as to when interest is to begin to run, is not payable until one year (now six months) after the executor's qualification, and does not bear interest until payable. Moorman v. Crockett, 90 Va. 185 , 17 S.E. 875 (1893). See Rosenberger v. Rosenberger, 184 Va. 1024 , 37 S.E.2d 55 (1946).

Representative may distribute estate as soon as all debts are paid. - It is the duty of an administrator to distribute the personal estate after the payment of debts. It is also right so to do. It is out of regard for creditors only that administrators cannot be "compelled" to make distribution of the estate within the year (now six months) from their qualification. So that where there are no creditors there is nothing in our statute law to forbid an administrator from distributing the personal estate within the year (now six months). And the true policy of the law, in the absence of such a statute, would seem to favor a reasonably prompt distribution amongst those entitled under the statute of distributions, rather than a holding of the estate by the fiduciary for the year (now six months). Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

Distribution before will discovered. - If an administrator acts with reasonable diligence to ascertain whether a will exists, and when acting with reasonable prudence in that regard, does not think and has no reasonable ground to think that a will exists, he may safely distribute the estate, so far as persons taking under a then unknown and unrecorded will are concerned, whether it be within the year (now six months) of, or after the expiration of the year (now six months) from, the qualification. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

§ 64.2-555. When fiduciaries are protected by refunding bonds.

If any personal representative pays any legacy made in the will or distributes any of the estate of the decedent and a proper refunding bond for what is so paid or distributed, with sufficient surety at the time it was made, is filed and recorded pursuant to § 64.2-554 , such personal representative shall not be personally liable for any debt or demand against the decedent, whether it be of record or not, unless, within six months from his qualification or before such payment or distribution, he had notice of such debt or demand. However, if any creditor of the decedent establishes a debt or demand against the decedent's estate by judgment therefor or by confirmation of a report of the commissioner of accounts that allows the debt or demand, a suit may be maintained on such refunding bond, in the name of the obligee or his personal representative, for the benefit of such creditor, and a recovery shall be had thereon to the same extent that would have been had if such obligee or his personal representative had satisfied such debt or demand.

(Code 1950, § 64-168; 1968, c. 656, § 64.1-178; 2012, c. 614.)

§ 64.2-556. Order to creditors to show cause against distribution of estate to legatees or distributees; liability of legatees or distributees to refund.

  1. When a report of the accounts of any personal representative and of the debts and demands against the decedent's estate has been filed in the office of a clerk of a court, whether under §§ 64.2-550 and 64.2-551 or in a civil action, the court, after six months from the qualification of the personal representative, may, on motion of the personal representative, or a successor or substitute personal representative, or on motion of a legatee or distributee of the decedent, enter an order for the creditors and all other persons interested in the estate of the decedent to show cause on the day named in the order against the payment and delivery of the estate of the decedent to his legatees or distributees. A copy of the order shall be published once a week for two successive weeks, in one or more newspapers, as the court directs; the costs of such publication shall be paid by the petitioner or applicant. On or after the day named in the order, the court may order the payment and delivery to the legatees or distributees of the whole or a part of the money and other estate not before distributed, with or without a refunding bond, as it prescribes. However, every legatee or distributee to whom any such payment or delivery is made, and his representatives, may, in a suit brought against him within five years after such payment or delivery is made, be adjudged to refund a due proportion of any claims enforceable against the decedent or his estate that have been finally allowed by the commissioner of accounts or the court, or that were not presented to the commissioner of accounts, and the costs of the recovery of such claim. In the event any claim becomes known to the fiduciary after the notice for debts and demands but prior to the entry of an order of distribution, the claimant, if the claim is disputed, shall be given notice in the form provided in § 64.2-550 and the order of distribution shall not be entered until after expiration of 10 days from the giving of such notice. If the claimant, within such 10-day period, indicates his desire to pursue the claim, the commissioner of accounts shall schedule a date for hearing the claim and for reporting thereon if action thereon is contemplated under § 64.2-550.
  2. Any personal representative who has in good faith complied with the provisions of this section and has, in compliance with or, as subsequently approved by, the order of the court, paid and delivered the money or other estate in his possession to any party that the court has adjudged entitled thereto shall not be liable for any demands of creditors and all other persons.
  3. Any personal representative who has in good faith complied with the provisions of this section and has, in compliance with, or as subsequently approved by, the order of the court, paid and delivered the money or other estate in his possession to any party that the court has adjudged entitled thereto, even if such distribution shall be prior to the expiration of the period of one year provided in § 64.2-302 , Article 1.1 (§ 64.2-308.1 et seq.) of Chapter 3, or § 64.2-313 , 64.2-448 , or 64.2-457 , shall not be liable for any demands of spouses, persons seeking to impeach the will or establish another will, or purchasers of real estate from the personal representative, provided that the personal representative has contacted any surviving spouse known to it having rights of renunciation and ascertained that the surviving spouse had no plan to renounce the will, such intent to be stated in writing in the case of renunciation under § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.) of Chapter 3, as applicable, and that the personal representative has not been notified in writing of any person's intent to impeach the will or establish a later will in the case of persons claiming under § 64.2-448 or 64.2-457 or under a later will.
  4. In the case of such distribution prior to the expiration of such one-year period, the personal representative shall take refunding bonds, without surety, to the next of kin or legatees to whom distribution is made, to protect against the contingencies specified in this section.

    (Code 1950, § 64-169; 1966, c. 335; 1968, c. 656, § 64.1-179; 1980, c. 439; 1982, c. 588; 1989, c. 492; 1991, c. 527; 1996, c. 352; 2005, c. 681; 2012, c. 614; 2016, cc. 187, 269.)

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "Article 1.1 ( § 64.2-308.1 et seq.) of Chapter 3, or § " and "or Article 1.1 ( § 64.2-308.1 et seq.) of Chapter 3, as applicable," in subsection C.

Law review. - For note, "Constitutionality of Notice in Virginia Probate and Estate Administration," see 42 Wash. & Lee L. Rev. 1325 (1985).

For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 3 The Writ Firea Facies: Execution. § 3.2 Execution. Rendleman.

CASE NOTES

This section did not apply to the Internal Revenue Service (IRS) because it was not a creditor of the decedent's estate. Instead, the IRS was a creditor of the taxpayer, a legatee under the will. United States v. Cameron, 248 Va. 290 , 448 S.E.2d 410 (1994)(decided under prior law).

Section protects representative against subsequent claims of distributees. - An administrator who has acted in good faith, and complied with every requirement of this chapter, and, in obedience to an order of the court of his appointment, has paid over (without a refunding bond) the funds in his hands to one whom the court has adjudged to be the sole distributee of the estate, will be protected against the demands of those who come in several years thereafter claiming to be entitled to share in the distribution of the estate. While this chapter does not expressly mention distributees, the legal effect of compliance therewith is to give protection as fully as though the chapter had so declared in express terms. This chapter is full, ample and complete, and guards and protects every interest as amply as could be done by a formal suit in chancery. Carter v. Skillman, 108 Va. 204 , 60 S.E. 775 (1908) (decided under prior law).

CIRCUIT COURT OPINIONS

Estate never closed and action was available against adminstratrix who was also a legatee of the estate. - Action was available against adminstratrix since she was also legatee of the estate of a decedent and even though the estate funds had been disbursed; an estate was never "closed" in Virginia. Martirosov v. Shenandoah Flight Servs., 64 Va. Cir. 163, 2004 Va. Cir. LEXIS 165 (Rockingham County 2004)(decided under prior law).

§ 64.2-557. Form for notice to show cause under § 64.2-556.

Any notice to show cause published or posted in pursuance of the requirements of § 64.2-556 may be substantially in the form following: Virginia: In the .................... Court of .......................... the ...... day of ..... Re: .........., deceased. SHOW CAUSE ORDER It appearing that a report of the accounts of .........., Personal Representative of the estate of .........., deceased, and of the debts and demands against (his)(her) estate has been filed in the Clerk's Office, and that six months have elapsed since the qualification, on motion of .........., (a distributee;) (a legatee;)(the personal representative;) IT IS ORDERED that the creditors of, and all others interested in, the estate do show cause, if any they can, on the ........ day of .......... (before this Court at its courtroom) at .......... .......... against the payment and delivery of the Estate of .........., deceased, to (the distributees) (the legatees) (without requiring refunding bonds) (with or without refunding bonds as the Court prescribes). A Copy - Teste: .................. Clerk .............., p.q.

(Code 1950, § 64-170; 1968, c. 656, § 64.1-180; 2012, c. 614.)

§ 64.2-558. Distribution to persons standing in loco parentis to certain beneficiaries.

Notwithstanding any provision of law to the contrary, a distribution to a person standing in loco parentis to an incapacitated person or an infant pursuant to authorization under subdivision B 17 of § 64.2-105 or a comparable provision in a will or trust instrument may be approved by the commissioner of accounts without regard to the amount or value of the fund or property.

(1980, c. 507, § 64.1-180.1; 1997, c. 801; 2012, c. 614.)

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

Chapter 6. Transfers Without Qualification.

Virginia Small Estate Act.

Payments, Settlements, or Administration Without Appointment of Representative.

Uniform Transfers on Death (TOD) Security Registration Act.

Nonprobate Transfers on Death.

Uniform Real Property Transfer on Death Act.

Article 1. Virginia Small Estate Act.

§ 64.2-600. Definitions.

For the purposes of this article, the following definitions apply:

"Designated successor" means one or more successors who are designated pursuant to subdivision A 7 of § 64.2-601 .

"Person" means any individual, corporation, business trust, fiduciary, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

"Small asset" means any indebtedness owed to or any asset belonging or presently distributable to the decedent, other than real property, having a value, on the date of the decedent's death, of no more than $50,000. A small asset includes any bank account, savings institution account, credit union account, brokerage account, security, deposit, tax refund, overpayment, item of tangible personal property, or an instrument evidencing a debt, obligation, stock, or chose in action.

"Successor" means any person, other than a creditor, who is entitled under the decedent's will or the laws of intestacy to part or all of a small asset.

(1981, c. 281, § 64.1-132.1; 2010, c. 269; 2012, c. 614.)

Law review. - For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 32 Summary Administration of Small Estates. § 32.02 In Virginia. Cox.

Virginia Forms (Matthew Bender). No. 15-401 Checklist for Probate and Administration.

§ 64.2-601. Payment or delivery of small asset by affidavit.

  1. Any person having possession of a small asset shall pay or deliver the small asset to the designated successor of the decedent upon being presented an affidavit made by all of the known successors stating:
    1. That the value of the decedent's entire personal probate estate as of the date of the decedent's death, wherever located, does not exceed $50,000;
    2. That at least 60 days have elapsed since the decedent's death;
    3. That no application for the appointment of a personal representative is pending or has been granted in any jurisdiction;
    4. That the decedent's will, if any, was duly probated;
    5. That the claiming successor is entitled to payment or delivery of the small asset, and the basis upon which such entitlement is claimed;
    6. The names and addresses of all successors, to the extent known;
    7. The name of each successor designated to receive payment or delivery of the small asset on behalf of all successors; and
    8. That the designated successor shall have a fiduciary duty to safeguard and promptly pay or deliver the small asset as required by the laws of the Commonwealth.
  2. The designated successor may discharge his fiduciary duty to promptly pay or deliver the small asset to a successor who is, or is reasonably believed to be, incapacitated or under a legal disability, by paying or delivering the asset directly to the incapacitated or disabled successor or applying it for such successor's benefit, or by:
    1. Paying it to such successor's conservator or, if no conservator exists, guardian;
    2. Paying it to such successor's custodian under the Virginia Uniform Transfers to Minors Act (§ 64.2-1900 et seq.) or custodial trustee under the Uniform Custodial Trust Act (§ 64.2-900 et seq.), and, for that purpose, creating a custodianship or custodial trust;
    3. If the designated successor does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of such successor to be expended on such successor's behalf; or
    4. Managing it as a separate fund on such successor's behalf, subject to such successor's continuing right to withdraw the asset.
  3. Any successor may be represented and bound under virtual representation provisions of §§ 64.2-714 , 64.2-716 , and 64.2-717 with respect to affidavits required and designations of persons to receive payment or delivery of a small asset under this article.
  4. A transfer agent of any security, upon the surrender of the certificates, if any, evidencing the security, shall change the registered ownership on the books of a corporation from the decedent to the designated successor upon the presentation of an affidavit as provided in subsection A.
  5. Upon the presentation of an affidavit as provided in subsection A, the designated successor may endorse or negotiate any small asset that is a check, draft, or other negotiable instrument that is payable to the decedent or the decedent's estate. Notwithstanding the provisions of §§ 8.3A-403 , 8.3A-417 , and 8.3A-420 , a financial institution accepting such check, draft, or other negotiable instrument presented for deposit in such manner is discharged from all claims for the amount accepted. (1981, c. 281, § 64.1-132.2; 1996, c. 549; 2001, c. 368; 2006, c. 280, 2010, c. 269; 2012, c. 614; 2013, c. 68; 2015, c. 617; 2019, c. 360.)

The 2013 amendments. - The 2013 amendment by c. 68 added subsection E.

The 2015 amendments. - The 2015 amendment by c. 617 inserted "or the decedent's estate" in subsection E.

The 2019 amendments. - The 2019 amendment by c. 360 added the second sentence in subsection E.

Law review. - For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

§ 64.2-602. Payment or delivery of small asset valued at $25,000 or less without affidavit.

  1. Notwithstanding the provisions of § 64.2-601 , any person having possession of a small asset valued at $25,000 or less may pay or deliver the small asset to any successor provided that:
    1. At least 60 days have elapsed since the decedent's death; and
    2. No application for the appointment of a personal representative is pending or has been granted in any jurisdiction.
  2. The designated successor shall have a fiduciary duty to safeguard and promptly pay or deliver the small asset as required by the laws of the Commonwealth to the other successors, if any.

    (1981, c. 281, § 64.1-132.3; 2010, c. 269; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection A, substituted "$25,000" for "$15,000."

§ 64.2-603. Discharge and release of payor.

Any person paying or delivering a small asset pursuant to § 64.2-601 or 64.2-602 is discharged and released to the same extent as if that person dealt with the personal representative of the decedent. Such person is not required to see the application of the small asset or to inquire into the truth of any statement in any affidavit presented pursuant to subsection A of § 64.2-601 . If any person to whom such an affidavit is presented refuses to pay or deliver any small asset, it may be recovered, or its payment or delivery compelled, and damages may be recovered, on proof of rightful claim in a proceeding brought for that purpose by or on behalf of the person entitled thereto. Any person to whom payment or delivery of a small asset has been made is answerable and accountable therefor to any personal representative of the decedent's estate or to any other successor having an equal or superior right.

(1981, c. 281, § 64.1-132.4; 2010, c. 269; 2012, c. 614.)

§ 64.2-604. Payment or delivery of small asset; funeral expenses.

Thirty days after the death of a decedent upon whose estate there shall have been no application for the appointment of a personal representative pending or granted in any jurisdiction, any person holding a small asset belonging to the decedent may, at the request of a successor, pay or deliver so much of the small asset as does not exceed the amount given priority by § 64.2-528 to the undertaker or mortuary handling the funeral of the decedent, and a receipt of the payee shall be a full and final release of the payor as to such sum.

(2010, c. 269, § 64.1-132.5; 2012, c. 614.)

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

§ 64.2-605. Construction of article.

The remedies provided by this article shall be in addition to, and not in exclusion of, any other remedies provided by law.

(2010, c. 269, § 64.1-132.6; 2012, c. 614.)

Article 2. Payments, Settlements, or Administration Without Appointment of Representative.

§ 64.2-606. Transfer of certain vessels registered with U.S. Coast Guard and transfer of motor vehicles.

  1. When a resident of the Commonwealth owning a vessel registered with the U.S. Coast Guard dies and there has been no qualification on the decedent's estate, a transfer of ownership may be made by a legatee or distributee if he presents a statement made by him to the U.S. Coast Guard stating that (i) there has not been and there is not expected to be a qualification on the estate and (ii) the decedent's debts have been paid in full or that the proceeds from the sale of such vessel will be used to apply against the decedent's debts. The statement shall state the decedent's name, residence at the time of death, and date of death, and the names of all other persons, if any, having an interest in the vessel who, if they have reached the age of majority, shall signify in writing their consent to such transfer of title.
  2. A transfer of ownership of a motor vehicle may be made by a legatee or distributee pursuant to § 46.2-634 . (1980, c. 731, § 64.1-123.2; 1994, c. 399; 2012, c. 614.)

§ 64.2-607. Transfer of evidences of indebtedness, securities, and stock held in decedents' estates.

When any executor or administrator duly appointed and qualified under this title has completed the distribution of the estate with the exception of transferring any evidences of indebtedness, securities, or stock in any corporation constituting a portion of such estate, such executor or administrator may file with the clerk of the court in which such executors or administrators qualified, a petition describing any such evidences of indebtedness, securities, and stock, stating that all debts of the decedent have been paid, and stating that a final accounting has been filed and approved. Upon receipt of the petition, the clerk shall issue a certificate certifying that the powers of such executor or administrator continue in full force and effect.

(Code 1950, § 64-121.1; 1952, c. 329; 1968, c. 656, § 64.1-128; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 36.

§ 64.2-608. Transfer of securities of nonresident decedents.

The stocks, bonds, or evidences of indebtedness issued by (i) the Commonwealth or any corporation created by the Commonwealth or (ii) any national bank or any other corporation created pursuant to federal law that has its principal office in the Commonwealth that are held in the name of a decedent domiciled outside of the Commonwealth at the time of his death and who is not known by the officer or agent charged with the duty of transferring such stocks, bonds, or evidences of indebtedness to have a personal representative qualified as such within the Commonwealth, may be transferred by the executor or administrator of the decedent qualified according to the laws of the decedent's domicile.

(Code 1950, § 64-122; 1950, c. 895; 1968, c. 656, § 64.1-129; 2012, c. 614.)

§ 64.2-609. Money and personal property belonging to nonresident decedents.

  1. When any person, at the time of his death domiciled outside of the Commonwealth, owned stocks, bonds, securities, money, or tangible personal property located in the Commonwealth or was entitled to any debts, choses in action, or tangible personal property in the Commonwealth, the person, firm, or corporation holding such stocks, bonds, securities, money, debts, tangible personal property, and choses in action shall retain such assets for 90 days from the death of such decedent. After the 90-day period, the person, firm, or corporation shall pay over or deliver on demand such portion of the assets for which the person, firm, or corporation has received no legal notice of any lien or encumbrance to an executor, administrator, or other personal representative, qualified according to the laws of the decedent's domicile if the value of such assets in the Commonwealth is, to the knowledge of the person holding or owing such assets, less than $25,000. When the value of such stocks, bonds, securities, money, debts, tangible personal property, and choses in action is $25,000 or more, the holder may pay or deliver such assets to an executor, administrator, or other personal representative, qualified in accordance with the law of the decedent's domicile, 30 days after the holder gives public notice of his intention to make such a transfer by publication thereof once a week for four successive weeks in a newspaper of general circulation in the city, town, or county wherein the holder resides or has his principal place of business, provided that at the time of such payment or delivery, the holder has no actual notice of the appointment of a personal representative for such decedent in the Commonwealth and has received no legal notice of any lien or encumbrance upon such assets.
  2. This section shall be construed as providing, as to the payment of money and the delivery of personal property belonging to nonresident decedents or their estates, optional methods of procedure in addition to those otherwise permitted or provided by law, including a comparable law of the state in which the nonresident decedents were domiciled, and shall not as to such matters add any limitations or restrictions to existing law.

    (Code 1950, § 64-123; 1956, c. 536; 1968, c. 656, § 64.1-130; 1970, c. 244; 1988, c. 370; 1996, c. 549; 2001, c. 368; 2009, c. 250; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection A, substituted "$25,000" for "$15,000" twice.

Law review. - For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).

For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For survey article, "Wills, Trusts, and Estates," see 44 U. Rich. L. Rev. 631 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Satisfaction of legal requirement of other state. - Personal property of a nonresident decedent may be transferred to the decedent's personal representative or other appropriate recipient provided any requirements of Virginia law have been satisfied by a comparable legal requirement of another state. See opinion of Attorney General to The Honorable Patricia S. Ticer, Member, Senate of Virginia, 07-102 (1/10/08) (decided under prior law).

§ 64.2-610. When court may allow another to qualify on estate.

  1. Except during the pendency of a suit to contest the decedent's will or during the infancy or absence of the executor, the court where the will was admitted to probate or that has jurisdiction to grant administration on the decedent's estate, or the clerk of such court, shall, if there has been no executor or administrator on the decedent's estate for more than two months and on the motion of any person, order any person of the county or city to take into his possession the estate of such decedent and administer the same after requiring such person post a proper bond. However, any sheriff so ordered may decline the appointment if the appointment interferes with his current duties or obligations. The person ordered to take possession of the decedent's estate shall be the administrator, or administrator de bonis non, of the decedent, with his will annexed, if there be a will, and shall be entitled to all the rights and bound to perform all the duties of such administrator.
  2. The court may, on reasonable notice to the person appointed, revoke the order made by it or its clerk and the court may, after reasonable notice to the parties in interest, permit the person to resign and allow any other person to qualify as executor or administrator.
  3. When an estate is committed to a person pursuant to subsection A on the motion of a creditor or other person, the state tax due for such administration shall be paid by the party who made the motion and such tax shall be repaid to him by the administrator so appointed out of the first funds received by him for such estate.

    (Code 1950, § 64-124; 1968, c. 656, § 64.1-131; 1971, Ex. Sess., c. 155; 1980, c. 438; 1996, c. 317; 2012, c. 614.)

Editor's note. - Some of the cases below were decided under prior law.

CASE NOTES

Legality of this section has never been questioned. Drake v. National Bank of Commerce, 168 Va. 230 , 190 S.E. 302 (1937).

Commitment cannot be attacked collaterally. - Where the court has general jurisdiction to grant administration to public administrators, the act of the court in committing the estate to the sheriff (now any person) cannot be questioned in any collateral proceeding. Hutcheson v. Priddy, 53 Va. (12 Gratt.) 85 (1855).

It is not imperative on the court to grant administration to a distributee after the estate has been committed to the sheriff (now any person); there is a legal discretion in the court. Hutcheson v. Priddy, 53 Va. (12 Gratt.) 85 (1855).

Notice of transfer. - An estate having been committed to the sheriff (now any person), the court cannot grant the administration to a distributee without notice to the sheriff (now any person) of the application. Hutcheson v. Priddy, 53 Va. (12 Gratt.) 85 (1855).

Extent of power and authority. - One of the executors having died and the other having been removed, and the administration with the will annexed having been committed to the sheriff (now any person), he was authorized as such administrator to execute the power and trust, and is therefore bound to account for the rents and profits. The case, though not within the letter of the statute, is within its spirit and meaning. Mosby's Adm'r v. Mosby's Adm'r, 50 Va. (9 Gratt.) 584 (1853).

Applied in Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

§ 64.2-611. Disposition by sheriff of property when no person entitled thereto.

If any sheriff has in his possession any money or personal property of a decedent and, after reasonable diligence, is unable to ascertain the identity of any person entitled to such property, the sheriff shall sell such property at public auction within two years of coming into possession of such property. The sheriff shall post notices of the date, time, and place of the sale at least 10 days before the sale in three or more public places in his jurisdiction, or shall advertise the date, time, and place of the sale at least 10 days before the sale in a newspaper published or having general circulation in his jurisdiction. The proceeds of the sale of personal property, together with any such money of the decedent in the sheriff's possession, after the payment of all necessary expenses, shall be paid into the state treasury to the credit of the Literary Fund.

(Code 1950, § 64-125; 1968, c. 656, § 64.1-132; 1971, Ex. Sess., c. 155; 2012, c. 614.)

Article 3. Uniform Transfers on Death (TOD) Security Registration Act.

§ 64.2-612. Definitions.

In this article, unless the context otherwise requires:

"Beneficiary form" means a registration of a security that indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.

"Devisee" means any person designated in a will to receive a disposition of real or personal property.

"Heirs" means those persons, including the surviving spouse, who are entitled under the laws of intestate succession to the property of a decedent.

"Personal representative" includes an executor, administrator, successor, personal representative, special administrator, and a person who performs substantially the same function under the law governing his status.

"Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

"Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.

"Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.

"Security" means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account.

"Security account" means (i) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death, or (ii) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.

(1994, c. 422, § 64.1-206.1; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 8-6-140 to 8-6-151.

Alaska: Alaska Stat. §§ 13.33.301 to 13.33.310.

Arkansas: A.C.A. §§ 28-14-101 to 28-14-112.

California: Cal. Prob. Code §§ 5500 to 5512.

Colorado: C.R.S. §§ 15-15-301 to 15-15-311.

Connecticut: Conn. Gen. Stat. §§ 45a-468 to 45a-470.

Delaware: 12 Del. C. §§ 801 to 812.

District of Columbia: D.C. Code §§ 19-603.01 to 19-603.11.

Florida: Fla. Stat. §§ 711.50 to 711.512.

Georgia: O.C.G.A. §§ 53-5-60 to 53-5-71.

Guam: 15 GCA §§ 851 through 863.

Hawaii: HRS §§ 539-1 to 539-12.

Idaho: Idaho Code §§ 15-6-301 to 15-6-312.

Illinois: 815 ILCS 10/0.01 to 10/12.

Iowa: Iowa Code §§ 633D.1 to 633D.12.

Kansas: K.S.A. §§ 17-49a01 to 17-49a12.

Kentucky: KRS §§ 292.6501 to 292.6512.

Maine: 18-A M.R.S. §§ 6-301 to 6-312.

Maryland: Md. Estates and Trusts Code Ann. §§ 16-101 to 16-112.

Massachusetts: Mass. ALM GL ch. 190B, §§ 6-301 through 6-311.

Michigan: MCLS §§ 700.6301 to 700.6310.

Minnesota: Minn. Stat. §§ 524.6-301 to 524.6-311.

Mississippi: Miss. Code Ann. §§ 91-21-1 to 91-21-25.

Montana: Mont. Code Ann. §§ 72-6-301 to 72-6-311.

Nebraska: R.R.S. Neb. §§ 30-2734 to 30-2746.

New Hampshire: R.S.A. §§ 563-C:1 to 563-C:12.

New Jersey: N.J. Stat. §§ 3B:30-1 to 3B:30-12.

North Carolina: N.C. Gen. Stat. §§ 41-40 to 41-51.

Ohio: O.R.C. Ann. §§ 1709.01 to 1709.11.

Oklahoma: 71 Okl. St. §§ 901 to 913.

Oregon: ORS §§ 59.535 to 59.585.

Rhode Island: R.I. Gen. Laws §§ 7-11.1-1 to 7-11.1-12.

South Carolina: S.C. Code §§ 35-6-10 to 35-6-100.

South Dakota: S.D. Codified Laws §§ 29A-6-301 through 29A-6-311.

Tennessee: Tenn. Code Ann. §§ 35-12-101 to 35-12-113.

Utah: Utah Code Ann. §§ 75-6-301 to 75-6-313.

Virgin Islands: 9 V.I.C. §§ 681 through 691.

Washington: Rev. Code Wash. §§ 21.35.005 to 21.35.901.

West Virginia: W. Va. Code §§ 36-10-1 to 36-10-12.

Wyoming: Wyo. Stat. §§ 2-16-101 to 2-16-112.

Law review. - For 1994 survey of Virginia wills, trusts, and estates law, see 28 U. Rich. L. Rev. 1145 (1994).

§ 64.2-613. Registration in beneficiary form; sole or joint tenancy ownership; applicable law.

  1. Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
  2. A security may be registered in beneficiary form if the form is authorized by this article or a similar law of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent, or its office making the registration, or by a similar law of the state listed as the owner's address at the time of registration.

    A registration governed by the law of a jurisdiction in which this article or a similar law is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

    (1994, c. 422, § 64.1-206.2; 2012, c. 614.)

§ 64.2-614. Origination of registration in beneficiary form.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

(1994, c. 422, § 64.1-206.3; 2012, c. 614.)

§ 64.2-615. Form of registration in beneficiary form; effect.

  1. Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of the beneficiary.
  2. The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.

    (1994, c. 422, § 64.1-206.4; 2012, c. 614.)

§ 64.2-616. Ownership on death of owner.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to any beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the names of any beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

(1994, c. 422, § 64.1-206.5; 2012, c. 614.)

§ 64.2-617. Protection of registering entity.

  1. A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protection given to the registering entity by this article.
  2. By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this article.
  3. A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with § 64.2-616 and does so in good faith reliance (i) on the registration, (ii) on this article, and (iii) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representative, or on other information available to the registering entity. The protections of this article do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this article.
  4. The protection provided by this article to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

    (1994, c. 422, § 64.1-206.6; 2012, c. 614.)

§ 64.2-618. Nontestamentary transfer on death.

A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this article, and is not testamentary.

This article does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of the Commonwealth.

(1994, c. 422, § 64.1-206.7; 2012, c. 614.)

§ 64.2-619. Terms, conditions, and forms for registration; examples.

  1. A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form and (ii) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death.

    Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for "lineal descendants per stirpes." This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.

  2. The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
    1. Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. Brown, Jr.
    2. Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr.
    3. Multiple owners-primary and secondary (substituted) beneficiaries: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr. SUB BENE Peter Q. Brown or John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr. LDPS.

      (1994, c. 422, § 64.1-206.8; 2012, c. 614.)

Article 4. Nonprobate Transfers on Death.

§ 64.2-620. Nonprobate transfers on death.

  1. A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary.

    Nontestamentary transfers also include writings stating that (i) money or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later; (ii) money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or (iii) any property controlled by or owned by the decedent before death that is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.

  2. This section does not limit rights of creditors under other laws of the Commonwealth.

    (2001, c. 583, § 64.1-45.3; 2012, c. 614.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

Article 5. Uniform Real Property Transfer on Death Act.

§ 64.2-621. Definitions.

As used in this article:

"Beneficiary" means a person that receives property under a transfer on death deed.

"Designated beneficiary" means a person designated to receive property in a transfer on death deed.

"Joint owner" means an individual who owns property concurrently with one or more other individuals with a right of survivorship. "Joint owner" includes a joint tenant with the right of survivorship and tenant by the entirety with the right of survivorship. "Joint owner" does not include a tenant in common.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Property" means an interest in real property located in the Commonwealth that is transferable on the death of the owner.

"Transfer on death deed" means a deed authorized under this article.

"Transferor" means an individual who makes a transfer on death deed.

(2013, c. 390.)

Law review. - For annual survey article, see "Taxation," 48 U. Rich. L. Rev. 169 (2013).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 23 Assets of the Estate. § 23.20 Virginia Uniform Real Property Transfer on Death Act. Cox.

Virginia Forms (Matthew Bender). No. 15-125 Transfer on Death Deed, et seq.; No. 16-599.1 Transfer on Death Deed; No. 16-1206 To Beneficiaries Under Transfer on Death Deed.

§ 64.2-622. Applicability.

This article applies to a transfer on death deed made before, on, or after July 1, 2013, by a transferor dying on or after July 1, 2013.

(2013, c. 390.)

§ 64.2-623. Nonexclusivity.

This article does not affect any method of transferring property otherwise permitted under the law of the Commonwealth.

(2013, c. 390.)

§ 64.2-624. Transfer on death deed authorized.

An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed.

(2013, c. 390.)

§ 64.2-625. Transfer on death deed revocable.

A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.

(2013, c. 390.)

§ 64.2-626. Transfer on death deed nontestamentary.

A transfer on death deed is nontestamentary.

(2013, c. 390.)

Law review. - For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

§ 64.2-627. Capacity of transferor.

The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.

(2013, c. 390.)

§ 64.2-628. Requirements.

A transfer on death deed:

  1. Except as otherwise provided in subdivision 2, shall contain the essential elements and formalities of a properly recordable inter vivos deed;
  2. Shall state that the transfer to the designated beneficiary is to occur at the transferor's death;
  3. Shall be recorded before the transferor's death in the land records of the clerk's office of the circuit court in the jurisdiction where the property is located;
  4. Shall comply with the requirements for recordation set forth in Chapter 6 (§ 55.1-600 et seq.) of Title 55.1 and shall be indexed by the clerk of court under the name of the transferor as grantor;
  5. Unless the transfer is for consideration, shall be exempt from recordation tax as provided by subsection J of § 58.1-811 ;
  6. For property owned by joint owners to be effective, shall be executed by all joint owners; and
  7. Shall be considered a deed for purposes of complying with the requirements of § 17.1-223 . (2013, c. 390.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 6 ( § 55.1-600 et seq.) of Title 55.1" for "Chapter 6 ( § 55-106 et seq.) of Title 55."

§ 64.2-629. Notice, delivery, acceptance, consideration not required.

A transfer on death deed is effective without:

  1. Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or
  2. Consideration.

    (2013, c. 390.)

§ 64.2-630. Revocation by instrument authorized; revocation by act not permitted.

  1. Subject to subsection B, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:
    1. Is one of the following:
      1. A transfer on death deed that revokes the transfer on death deed or part of the transfer on death deed expressly;
      2. A transfer on death deed that names a designated beneficiary that is inconsistent with the designated beneficiary in a prior transfer on death deed;
      3. An instrument of revocation that expressly revokes the transfer on death deed or part of the transfer on death deed; or
      4. An inter vivos deed that expressly revokes the transfer on death deed or part of the transfer on death deed.
    2. Is acknowledged by the transferor after the acknowledgment of the transfer on death deed being revoked and recorded before the transferor's death in the land records of the clerk's office of the circuit court where the deed is recorded.
  2. If a transfer on death deed is made by more than one transferor:
    1. Revocation by a transferor does not affect the transfer on death deed as to the interest of another transferor; and
    2. A transfer on death deed of joint owners is revoked only if it is revoked by all of the living joint owners.
  3. After a transfer on death deed is recorded, it can be revoked only by an effective revocatory instrument recorded prior to the death of the transferor and may not be revoked by a revocatory act taken against or on the original or a copy of the recorded transfer on death deed.
  4. This section does not limit the effect of an inter vivos transfer of the property.

    (2013, c. 390.)

§ 64.2-631. Effect of transfer on death deed during transferor's life.

During a transferor's life, a transfer on death deed does not:

  1. Affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;
  2. Affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed;
  3. Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;
  4. Affect the transferor's or designated beneficiary's eligibility for any form of public assistance;
  5. Create a legal or equitable interest in favor of the designated beneficiary; or
  6. Subject the property to claims or process of a creditor of the designated beneficiary.

    (2013, c. 390.)

§ 64.2-632. Effect of transfer on death deed at transferor's death.

  1. Except as otherwise provided in the transfer on death deed, in this section, in § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.) of Chapter 3, as applicable, or in Chapter 22 (§ 64.2-2200 et seq.) or 25 (§ 64.2-2500 et seq.), on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death:
    1. Subject to subdivision 2, the interest in the property is transferred to and vests in the designated beneficiary at the death of the transferor in accordance with the deed.
    2. The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.
    3. Subject to subdivision 4, concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.
    4. If the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property, the share of one that lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.
    5. If, after making a transfer on death deed, the transferor is divorced a vinculo matrimonii or his marriage is annulled, the divorce or annulment revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise.
  2. Subject to Chapter 6 (§ 55.1-600 et seq.) of Title 55.1, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor's death. For purposes of this subsection and Chapter 6 (§ 55.1-600 et seq.) of Title 55.1, the transfer and conveyance of the property subject to the transfer on death deed shall be deemed to be effective at the transferor's death.
  3. If a transferor is a joint owner and is:
    1. Survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship but remains subject to the naming of the designated beneficiary in the transfer on death deed; or
    2. The last surviving joint owner, the transfer on death deed is effective.
  4. A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.

    (2013, c. 390; 2016, cc. 187, 269.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 6 ( § 55.1-600 et seq.) of Title 55.1" for "Chapter 6 ( § 55-106 et seq.) of Title 55."

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "or Article 1.1 ( § 64.2-308.1 et seq.) of Chapter 3, as applicable," in subsection A.

§ 64.2-633. Disclaimer.

A beneficiary may disclaim all or part of the beneficiary's interest as provided by Chapter 26 (§ 64.2-2600 et seq.).

(2013, c. 390.)

CIRCUIT COURT OPINIONS

Applicability. - In a case alleging the mismanagement of irrevocable trusts, co-beneficiaries were necessary parties to the litigation, and they were unable to steer clear of the litigation by a disclaimer because this statute was part of the Virginia Real Property Transfer on Death Act, rather than the Virginia Uniform Trust Code. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-634. Liability for creditor claims and statutory allowances.

  1. After the death of the transferor, and subject to the transferor's right to direct the source from which liabilities will be paid, property transferred at the transferor's death by a transfer on death deed is subject to claims of the transferor's creditors, costs of administration of the transferor's estate, the expenses of the transferor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children of the transferor including the family allowance, the right to exempt property, and the homestead allowance to the extent the transferor's probate estate is inadequate to satisfy those claims, costs, expenses, and allowances.
  2. If more than one property is transferred by one or more transfer on death deeds, the liability under subsection A is apportioned among the properties in proportion to their net values at the transferor's death.
  3. A proceeding to enforce the liability under this section shall be commenced not later than one year after the transferor's death.

    (2013, c. 390.)

§ 64.2-635. Optional form of transfer on death deed.

The following form may be used to create a transfer on death deed. The other sections of this article govern the effect of this or any other instrument used to create a transfer on death deed: THIS DEED MUST BE RECORDED BEFORE THE DEATH OF THE OWNER(S), OR IT WILL NOT BE EFFECTIVE. THIS DEED IS EXEMPT FROM RECORDATION TAXES UNDER § 58.1-811 (J) OF THE CODE OF VIRGINIA OF 1950, AS AMENDED. REVOCABLE TRANSFER ON DEATH DEED THIS REVOCABLE TRANSFER ON DEATH DEED, dated as of the ________ day of __________________, is made by TRANSFEROR or TRANSFERORS (the Grantor(s)), whose address is ____________________________________________________________. This Revocable Transfer on Death Deed is made pursuant to the provisions of the Uniform Real Property Transfer on Death Act, Virginia Code § 64.2-621 et seq. In accordance with the provisions of the Uniform Real Property Transfer on Death Act, at my death, I transfer and convey my interest in the below described property to my designated beneficiaries as follows: PRIMARY BENEFICIARY I designate ______________________________ as the designated beneficiary of the property if ______________________________ survives me. ALTERNATE BENEFICIARY - Optional If my primary designated beneficiary does not survive me, I designate ____________________________________________________________ as my alternate designated beneficiary if my alternate designated beneficiary survives me. PROPERTY: The legal description of the real property that shall be transferred at my death pursuant to this Revocable Transfer on Death Deed is as follows: INSERT LEGAL DESCRIPTION RIGHT TO REVOKE AND METHOD TO REVOKE DEED: Before my death, I have the right to revoke this deed. Under the Uniform Real Property Transfer on Death Act, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument: 1. Is one of the following: a. A transfer on death deed that revokes the transfer on death deed or part of the transfer on death deed expressly; b. A transfer on death deed that names a designated beneficiary that is inconsistent with the designated beneficiary in a prior transfer on death deed; c. An instrument of revocation that expressly revokes the transfer on death deed or part of the transfer on death deed; or d. An inter vivos deed that expressly revokes the transfer on death deed or part of the transfer on death deed. 2. Is acknowledged by the transferor after the acknowledgment of the transfer on death deed being revoked and recorded before the transferor's death in the land records of the clerk's office of the circuit court where the deed is recorded. After this transfer on death deed is recorded, it can be revoked only by an effective revocatory instrument recorded prior to the death of the transferor and may not be revoked by a revocatory act taken against or on the original or a copy of the recorded transfer on death deed. The execution and recordation of this transfer on death deed does not limit the effect of an inter vivos transfer of the property. At my death, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at my death. Witness the following signature and seals: ____________________ (SEAL) TRANSFEROR COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________________________, to wit: The foregoing instrument was acknowledged before me in the City/County of ______________________________, Virginia this ________ day of __________________, by TRANSFEROR. __________________________________________________________________ Notary Public My commission expires: ______________________________ Registration number: ________________________________

(2013, c. 390.)

§ 64.2-636. Optional form of revocation.

The following form may be used to create an instrument of revocation under this article. THIS REVOCATION MUST BE RECORDED BEFORE YOU DIE OR IT WILL NOT BE EFFECTIVE. THIS REVOCATION IS EFFECTIVE ONLY AS TO THE INTERESTS IN THE PROPERTY OF OWNERS WHO SIGN THIS REVOCATION. THIS DEED IS EXEMPT FROM RECORDATION TAXES UNDER § 58.1-811 (J) OF THE CODE OF VIRGINIA OF 1950, AS AMENDED. REVOCATION OF TRANSFER ON DEATH DEED THIS REVOCATION OF TRANSFER ON DEATH DEED, dated as of the ________ day of __________________, is made by TRANSFEROR OR TRANSFERORS (the Grantor(s)), whose address is ____________________________________________________________. This Revocation of Transfer on Death Deed is made pursuant to the provisions of the Uniform Real Property Transfer on Death Act, Virginia Code, § 64.2-621 et seq. In accordance with the provisions of the Uniform Real Property Transfer on Death Act, I revoke all my previous transfers of the below described property by transfer on death deed: INSERT LEGAL DESCRIPTION Witness the following signature and seals: ____________________ (SEAL) TRANSFEROR COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________________________, to wit: The foregoing instrument was acknowledged before me in the City/County of ______________________________, Virginia this ________ day of __________________, by TRANSFEROR. __________________________________________________________________ Notary Public My commission expires: ______________________________ Registration number: ________________________________

(2013, c. 390.)

Research References. - Virginia Forms (Matthew Bender). No. 15-126 Revocation of Transfer on Death Deed; No. 16-599.2 Revocation of Transfer on Death Deed.

§ 64.2-637. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

(2013, c. 390.)

Law review. - For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

§ 64.2-638. Relation to federal Electronic Signatures in Global and National Commerce Act.

This article modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that Act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that Act, 15 U.S.C. § 7003(b).

(2013, c. 390.)

SUBTITLE III. TRUSTS.

Chapter 7. Uniform Trust Code.

General Provisions and Definitions.

Judicial Proceedings.

Representation.

Creation, Validity, Modification, and Termination of Trust.

Creditor's Claims; Spendthrift and Discretionary Trusts.

Revocable Trusts.

Office of Trustee.

Duties and Powers of Trustee.

Uniform Trust Decanting Act.

Uniform Directed Trust Act.

Uniform Prudent Investor Act.

Liability of Trustees and Rights of Persons Dealing with Trustee.

Miscellaneous Provisions.

Article 1. General Provisions and Definitions.

§ 64.2-700. Scope.

  1. This chapter applies to express inter vivos trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust. This chapter also applies to testamentary trusts, except to the extent that specific provision is made for them in Part A (§ 64.2-1200 et seq.) of Subtitle IV or elsewhere in the Code of Virginia, or to the extent it is clearly inapplicable to them. Section 64.2-775 , which provides the duties of a trustee to inform and report to the trust's beneficiaries, shall apply to testamentary trusts. For purposes of this subsection, the word "trust" and the words "trustee" or "fiduciary," as used in Part A (§ 64.2-1200 et seq.) of Subtitle IV, shall be deemed to refer to testamentary trusts and testamentary trustees, except to the extent that the use of such words is clearly inapplicable to testamentary trusts and testamentary trustees. This chapter shall not apply to:
    1. A trust that is primarily used for business, investment, or commercial transactions, including business trusts, land trusts (§ 55.1-117 ), deeds of trusts (Article 2 (§ 55.1-316 et seq.) of Chapter 3 of Title 55.1), voting trusts, common trust funds, security arrangements, liquidation trusts, trusts created by deposit arrangement in a financial institution, and trusts created for paying debts, dividends, interest, or profits.
    2. A trust that is used primarily for employment including trusts created for paying salaries, wages, pensions, or employee benefits of any kind.
    3. A trust under which a person is a nominee or escrowee for another.
    4. Other special purpose trusts governed by particular statutes, including trusts under Title 57.
  2. Notwithstanding subsection A, a court, in exercising jurisdiction over the supervision or administration of trusts, may determine that application of the policies, procedures, or rules of the Code is appropriate to resolution of particular issues.

    (2005, c. 935, § 55-541.02; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 19-3B-101 to 19-3B-1305.

Arkansas: A.C.A. § 28-73-101 et seq.

District of Columbia: D.C. Code §§ 19-1301.01 to 19-1311.03.

Kansas: K.S.A. §§ 58a-101 to 58a-1107.

Kentucky: KRS § 386B.1-010 et seq.

Maine: 18-B M.R.S. §§ 101 to 1104.

Massachusetts: ALM GL ch. 203E, § 101 et seq.

Mississippi: Miss. Code Ann. § 91-8-101 et seq.

Missouri: §§ 456.1-101 to 456.11-1106 R.S. Mo.

Montana: § 72-38-101 et seq., MCA.

Nebraska: R.R.S. Neb. §§ 30-3801 to 30-38,110.

New Jersey: N.J. Stat. § 3B:31-1 et seq.

New Mexico: N.M. Stat. Ann. §§ 46A-1-101 to 46A-11-1105.

North Carolina: N.C. Gen. Stat. §§ 36C-1-101 to 36C-11-1106.

North Dakota: N.D. Cent. Code §§ 59-09-01 to 59-19-02.

Oregon: ORS §§ 130.001 to 130.910.

Pennsylvania: 20 Pa.C.S. §§ 7701 to 7790.3.

South Carolina: S.C. Code Ann. §§ 62-7-101 to 62-7-1106.

Tennessee: Tenn. Code Ann. §§ 35-15-101 to 35-15-1206.

Utah: Utah Code Ann. §§ 75-7-101 to 75-7-1201.

Vermont: 14A V.S.A. §§ 101 to 1204.

West Virginia: W. Va. Code §§ 44D-1-101 to 44D-11-1105.

Wyoming: Wyo. Stat. §§ 4-10-101 to 4-10-1103.

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "land trusts ( § 55.1-117 ), deeds of trusts (Article 2 ( § 55.1-316 et seq.) of Chapter 3 of Title 55.1)" for "land trusts ( § 55-17.1), deeds of trusts (Article 2 ( § 55-58 et seq.) of Chapter 4 of Title 55)."

Law review. - For annual survey of Virginia law article, "Wills, Trusts, and Estates," see 47 U. Rich. L. Rev. 343 (2012).

For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 4 Garnishment. § 4.8 Other Property Subject to Garnishment. Rendleman.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 21 Conditions, Trusts and Powers. § 21.21 Virginia and West Virginia Uniform Trust Code. Cox.

Virginia Forms (Matthew Bender). No. 15-201 Preamble to Will, et seq.; No. 15-301 Revocable Inter Vivos Trust Agreement, et seq.; No. 15-473 Account for Trust (Testamentary), et seq.

Michie's Jurisprudence. - For related discussion, see 3B M.J. Charitable Trusts, §§ 2, 4.

Editor's note. - Most of the annotations below were decided under prior law.

CASE NOTES

Applicability. - Subsection A of § 55-541.02, which was part of the Uniform Trust Code, had no application to a college, which was not an express inter vivos trust, charitable trust, or noncharitable trust created pursuant to a statute, judgment, or decree. Section 2.2-507.1 did not transform every nonstock charitable corporation in Virginia, or that did business in Virginia, into a trust that was subject to the Uniform Trust Code. Dodge v. Trs. of Randolph-Macon Woman's College, 276 Va. 10 , 661 S.E.2d 805 (2008).

Nonstock charitable corporation. - Students who had donated money to a college were not beneficiaries of a charitable trust; the college was a nonstock charitable corporation and was not converted into a charitable trust that was subject to subsection B of § 55-541.02. Dodge v. Trs. of Randolph-Macon Woman's College, 276 Va. 10 , 661 S.E.2d 805 (2008).

Authority of a circuit court. - Although a circuit court could exercise jurisdiction over the supervision or administration of trusts, subsection B of § 55-541.02 did not authorize a circuit court to declare by judicial fiat that a nonstock charitable corporation was a trust. Dodge v. Trs. of Randolph-Macon Woman's College, 276 Va. 10 , 661 S.E.2d 805 (2008).

Self-settled trusts ineffective to shield assets. - The restriction that a trust can not "operate to the prejudice of any existing creditor of the creator of such trust" is the self-settled rule and has been consistently interpreted to prevent a self-settled trust from being exempt from the settlor-beneficiary's creditors; a spendthrift trust cannot be created by the beneficiary to shield his own assets from claims of his own creditors. In re Bissell, 255 Bankr. 402 (Bankr. E.D. Va. 2000).

Trust must be used for support and maintenance of beneficiary. - The statutory language protects the corpus of a spendthrift trust, the income of a trust, or both, from the beneficiaries' creditors only if the moneys of the trust are to be used for the support and maintenance of the beneficiary. Levey v. First Va. Bank, 845 F.2d 80 (4th Cir. 1988).

§ 64.2-701. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Action," with respect to an act of a trustee, includes a failure to act.

"Appointive property" means the property or property interest subject to a power of appointment.

"Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of § 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986 and any applicable regulations.

"Authorized fiduciary" means (i) a trustee or other fiduciary, other than a settlor, that has discretion to distribute or direct a trustee to distribute part or all of the income or principal of the first trust to one or more current beneficiaries and that is not (a) a current beneficiary of the first trust or a beneficiary to which the net income or principal of the first trust would be distributed if the first trust were terminated, (b) a trustee of the first trust that may be removed and replaced by a current beneficiary who has the power to remove the existing trustee of the first trust and designate as successor trustee a person that may be a related or subordinate party, as defined in 26 U.S.C. § 672(c), with respect to such current beneficiary, or (c) an individual trustee whose legal obligation to support a beneficiary may be satisfied by distributions of income and principal of the first trust; (ii) a special fiduciary appointed under § 64.2-779.6 ; or (iii) a special-needs fiduciary under § 64.2-779.10 .

"Beneficiary" means a person that (i) has a present or future, vested or contingent, beneficial interest in a trust; (ii) holds a power of appointment over trust property; or (iii) is an identified charitable organization that will or may receive distributions under the terms of the trust.

"Charitable interest" means an interest in a trust that (i) is held by an identified charitable organization and makes the organization a qualified beneficiary; (ii) benefits only charitable organizations and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary; or (iii) is held solely for charitable purposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.

"Charitable organization" means (i) a person, other than an individual, organized and operated exclusively for charitable purposes or (ii) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose.

"Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, a municipal or other governmental purpose, or another purpose the achievement of which is beneficial to the community.

"Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in § 64.2-723 .

"Conservator" means a person appointed by the court to administer the estate of an adult individual.

"Court" means the court of the Commonwealth having jurisdiction in matters related to trusts.

"Current beneficiary" means a beneficiary that on the date the beneficiary's qualification is determined is a distributee or permissible distributee of trust income or principal. "Current beneficiary" includes the holder of a presently exercisable general power of appointment but does not include a person that is a beneficiary only because the person holds any other power of appointment.

"Decanting power" means the power of an authorized fiduciary under the Uniform Trust Decanting Act (§ 64.2-779.1 et seq.) to distribute property of a first trust to one or more second trusts or to modify the terms of the first trust.

"Directed trustee" means a trustee that is subject to a trust director's power of direction.

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

"Expanded distributive discretion" means a discretionary power of distribution that is not limited to an ascertainable standard or a reasonably definite standard.

"First trust" means a trust over which an authorized fiduciary may exercise the decanting power.

"First-trust instrument" means the trust instrument for a first trust.

"General power of appointment" means a power of appointment exercisable in favor of a powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

"Guardian" means a person appointed by the court to make decisions regarding the support, care, education, health, and welfare of a minor or adult individual. The term does not include a guardian ad litem.

"Guardian of the estate" means a person appointed by the court to administer the estate of a minor.

"Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust.

"Jurisdiction," with respect to a geographic area, includes a state or country.

"Person" means an individual; estate; business or nonprofit entity; government; governmental subdivision, agency, or instrumentality; public corporation; or other legal entity.

"Powerholder" means a person in which a donor creates a power of appointment.

"Power of appointment" means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. "Power of appointment" does not include a power of attorney.

"Power of direction" means a power over a trust granted to a person by the terms of the trust to the extent the power is exercisable while the person is not serving as a trustee. The term includes a power over the investment, management, or distribution of trust property or other matters of trust administration. The term excludes the powers described in subsection A of § 64.2-779.28 .

"Power of withdrawal" means a presently exercisable general power of appointment other than a power exercisable by a trustee that is limited by an ascertainable standard, or that is exercisable by another person only upon consent of the trustee or a person holding an adverse interest.

"Presently exercisable power of appointment" means a power of appointment exercisable by the powerholder at the relevant time. "Presently exercisable power of appointment" includes a power of appointment exercisable only after the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time, only after (i) the occurrence of the specified event, (ii) the satisfaction of the ascertainable standard, or (iii) the passage of the specified time. "Presently exercisable power of appointment" does not include a power exercisable only at the powerholder's death.

"Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.

"Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined, (i) is a distributee or permissible distributee of trust income or principal; (ii) would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in clause (i) terminated on that date without causing the trust to terminate; or (iii) would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

"Reasonably definite standard" means a clearly measurable standard under which a holder of a power of distribution is legally accountable within the meaning of § 674(b)(5)(A) of the Internal Revenue Code of 1986 and any applicable regulations.

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"Revocable," as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.

"Second trust" means (i) a first trust after modification, including a restatement of the first trust, under the Uniform Trust Decanting Act (§ 64.2-779.1 et seq.) or (ii) a trust to which a distribution of property from a first trust is or may be made under the Uniform Trust Decanting Act (§ 64.2-779.1 et seq.).

"Second-trust instrument" means the trust instrument for a second trust.

"Settlor," except as otherwise provided in § 64.2-779.22 , means a person, including a testator, who creates or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.

"Sign" means, with present intent to authenticate or adopt a record, (i) to execute or adopt a tangible symbol or (ii) to attach to or logically associate with the record an electronic symbol, sound, or process.

"Spendthrift provision" means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.

"Terms of a trust" means:

  1. Except as otherwise provided in subdivision 2, the manifestation of the settlor's intent regarding a trust's provisions as (i) expressed in the trust instrument or (ii) established by other evidence that would be admissible in a judicial proceeding; or
  2. The trust's provisions as established, determined, or amended by (i) a trustee or trust director in accordance with applicable law, (ii) court order, or (iii) a nonjudicial settlement agreement under § 64.2-709 . "Trust director" means a person that is granted a power of direction by the terms of a trust to the extent the power is exercisable while the person is not serving as a trustee. The person is a trust director whether or not the terms of the trust refer to the person as a trust director and whether or not the person is a beneficiary or settlor of the trust. "Trust instrument" means a record executed by the settlor to create a trust or by any person to create a second trust that contains some or all of the terms of the trust, including any amendments. "Trustee" includes an original, additional, and successor trustee and a cotrustee. (2005, c. 935, § 55-541.03; 2012, c. 614; 2017, c. 592; 2018, c. 476; 2020, c. 768.)

Editor's note. - Acts 2018, c. 476, cl. 2 provides: "That the provisions of this act apply to any trust created before, on, or after the effective date of this act [March 23, 2018]."

Acts 2018, c. 476, cl. 3 provides: "That no provision of this act shall affect any valid exercise of decanting power under a trust by an authorized fiduciary prior to the effective date of this act [March 23, 2018], and such exercise shall be governed by the laws in force at the time the decanting power was exercised by the authorized fiduciary."

The 2017 amendments. - The 2017 amendment by c. 592 rewrote the section.

The 2018 amendments. - The 2018 amendment by c. 476, effective March 23, 2018, in the definition of "Authorized fiduciary," added the language beginning "and that is not (a)" at the end of clause (i). For applicability date, see Editor's note.

The 2020 amendments. - The 2020 amendment by c. 768, inserted the definitions for "Directed trustee," "Power of direction," and "Trust director" and rewrote the definition for "Terms of a trust," which had read " 'Terms of a trust' means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by (i) other evidence that would be admissible in a judicial proceeding or (ii) court order, or nonjudicial settlement agreement."

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

CIRCUIT COURT OPINIONS

Charitable trust. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-702. Knowledge.

  1. Subject to subsection B, a person has knowledge of a fact if the person:
    1. Has actual knowledge of it;
    2. Has received a notice or notification of it; or
    3. From all the facts and circumstances known to the person at the time in question, has reason to know it.
  2. An organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act for the trust, or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the employee having responsibility to act for the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows a matter involving the trust would be materially affected by the information.

    (2005, c. 935, § 55-541.04; 2012, c. 614.)

§ 64.2-703. Default and mandatory rules.

  1. Except as otherwise provided in the terms of the trust, this chapter governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.
  2. The terms of a trust prevail over any provision of this chapter except:
    1. The requirements for creating a trust;
    2. Subject to subsection I of § 64.2-756 and §§ 64.2-779.32 and 64.2-779.34 , the duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries;
    3. The requirement that a trust and its terms be for the benefit of its beneficiaries, and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve;
    4. The power of the court to modify or terminate a trust under §§ 64.2-728 through 64.2-734 ;
    5. The effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in Article 5 (§ 64.2-742 et seq.);
    6. The power of the court under § 64.2-755 to require, dispense with, or modify or terminate a bond;
    7. The power of the court under subsection B of § 64.2-761 to adjust a trustee's compensation specified in the terms of the trust that is unreasonably low or high;
    8. The effect of an exculpatory term under § 64.2-799 ;
    9. The rights under §§ 64.2-801 through 64.2-804 of a person other than a trustee or beneficiary;
    10. Periods of limitation for commencing a judicial proceeding; and
    11. The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice. (2005, c. 935, § 55-541.05; 2007, c. 216; 2012, c. 614; 2020, c. 768.)

The 2020 amendments. - The 2020 amendment by c. 768, substituted "Subject to subsection I of § 64.2-756 and §§ 64.2-779.32 and 64.2-779.34 , the duty" for "The duty" in subdivision B 2.

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

CASE NOTES

Intent. - Uniform Trust Code has not altered the fundamental principles that in construing, enforcing and administrating wills and trusts, the testator's or settlor's intent prevails over the desires of the beneficiaries, and that intent is to be ascertained by the language the testator or settlor used in creating the will or trust because the Uniform Trust Code has not so altered the law as to permit beneficiaries, after the death of a testator, to defeat the terms of his will that postpone their enjoyment of his bounty, merely because they would rather have their money today than wait. Ladysmith Rescue Squad, Inc. v. Newlin, 280 Va. 195 , 694 S.E.2d 604 (2010)(decided under prior law).

No-contest clause. - Circuit court did not err when it denied a trustee's demurrer and ruled that it was proper for the circuit court to determine whether the trustee acted in conformity with the authority granted under the terms of the trust. There was sufficient evidence upon which a court could determine that the trustee's decision to find the testator's sons in violation of the trust's no contest clause was not motivated by a desire to carry out the testator's intent or to protect the beneficiaries and was therefore done in bad faith. Rafalko v. Georgiadis, 777 S.E.2d 870 (2015).

CIRCUIT COURT OPINIONS

Trust provision prevailed. - In a case alleging a mismanagement of irrevocable trusts, a demurrer was sustained on a claim that a trustee breached a duty by failing to file causes of action for legal malpractice and conversion because the language of the trust provision at issue made it clear that the trustee retained the option of instituting litigation until it was indemnified against all costs and liabilities, and the complaint failed to allege that the trustee was ever indemnified in such a manner. The trust provision prevailed over statutory law. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-704. Common law of trusts; principles of equity.

The common law of trusts and principles of equity supplement this chapter, except to the extent modified by this chapter or another statute of the Commonwealth.

(2005, c. 935, § 55-541.06; 2012, c. 614.)

CASE NOTES

Intent. - Uniform Trust Code has not altered the fundamental principles that in construing, enforcing and administrating wills and trusts, the testator's or settlor's intent prevails over the desires of the beneficiaries, and that intent is to be ascertained by the language the testator or settlor used in creating the will or trust because the Uniform Trust Code has not so altered the law as to permit beneficiaries, after the death of a testator, to defeat the terms of his will that postpone their enjoyment of his bounty, merely because they would rather have their money today than wait. Ladysmith Rescue Squad, Inc. v. Newlin, 280 Va. 195 , 694 S.E.2d 604 (2010)(decided under prior law).

CIRCUIT COURT OPINIONS

Derivative action. - In a case alleging mismanagement of irrevocable trusts, a beneficiary had standing to bring a derivative malpractice action against an attorney where a trustee failed to bring the claim. This was not prohibited by the Virginia Uniform Trust Code, and doing so was consistent with the statute that called upon on common-law principles to supplement the statutory provisions of the Code. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-705. Governing law.

The meaning and effect of the terms of a trust are determined by:

  1. The law of the jurisdiction designated in the terms unless the designation of that jurisdiction's law is contrary to a strong public policy of the jurisdiction having the most significant relationship to the matter at issue; or
  2. In the absence of a controlling designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue.

    (2005, c. 935, § 55-541.07; 2012, c. 614.)

§ 64.2-706. Principal place of administration.

  1. Without precluding other means for establishing a sufficient connection with the designated jurisdiction, terms of an inter vivos trust designating the principal place of administration are valid and controlling if:
    1. A trustee's principal place of business is located in or a trustee is a resident of the designated jurisdiction;
    2. A trust director's principal place of business is located in or a trust director is a resident of the designated jurisdiction; or
    3. All or part of the administration occurs in the designated jurisdiction.
  2. Without precluding the right of the court to order, approve, or disapprove a transfer, the trustee of an inter vivos trust may transfer the trust's principal place of administration to another state or to a jurisdiction outside of the United States that is appropriate to the trust's purposes, its administration, and the interests of the beneficiaries.
  3. When the proposed transfer of a trust's principal place of administration is to another state or to a jurisdiction outside of the United States, the trustee shall notify the qualified beneficiaries of the proposed transfer not less than 60 days before initiating the transfer. 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 and beneficiaries shall not be deemed to have transferred its principal place of administration if all or significant portions of the administration of the trust are performed outside the Commonwealth. The notice of proposed transfer shall include:
    1. The name of the jurisdiction to which the principal place of administration is to be transferred;
    2. The address and telephone number at the new location at which the trustee can be contacted;
    3. An explanation of the reasons for the proposed transfer;
    4. The date on which the proposed transfer is anticipated to occur; and
    5. The date, not less than 60 days after the giving of the notice, by which the qualified beneficiary shall notify the trustee of an objection to the proposed transfer.
  4. The authority of a trustee under this section to transfer a trust's principal place of administration to another state or to a jurisdiction outside of the United States terminates if a qualified beneficiary notifies the trustee of an objection to the proposed transfer on or before the date specified in the notice.
  5. In connection with a transfer of the trust's principal place of administration, the trustee may transfer some or all of the trust property to a successor trustee designated in the terms of the trust or appointed pursuant to § 64.2-757 .
  6. The court, for good cause shown, may transfer the principal place of administration of a testamentary trust to another state or to a jurisdiction outside of the United States upon such conditions, if any, as it may deem appropriate.

    (2005, c. 935, § 55-541.08; 2012, c. 614; 2020, c. 768.)

The 2020 amendments. - The 2020 amendment by c. 768, inserted a new subdivision A 2, renumbered former subdivision A 2 as subdivision A 3 and made stylistic changes.

§ 64.2-707. Methods and waiver of notice.

  1. Notice to a person under this chapter or the sending of a document to a person under this chapter shall be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person's last known place of residence or place of business, or a properly directed electronic message.
  2. Notice otherwise required under this chapter or a document otherwise required to be sent under this chapter need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.
  3. Notice under this chapter or the sending of a document under this chapter may be waived by the person to be notified or sent the document.
  4. Notice of a judicial proceeding shall be given as provided in § 64.2-713 . (2005, c. 935, § 55-541.09; 2012, c. 614.)

§ 64.2-708. Others treated as qualified beneficiaries.

  1. Whenever notice to qualified beneficiaries of a trust is required under this chapter, the trustee shall also give notice to any other beneficiary who has sent the trustee a request for notice.
  2. A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary under this chapter if the charitable organization, on the date of the charitable organization's qualification is being determined:
    1. Is a distributee or permissible distributee of trust income or principal;
    2. Would be a distributee or permissible distributee of trust income or principal upon the termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions; or
    3. Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
  3. A person appointed to enforce a trust created for the care of an animal or another noncharitable purpose as provided in § 64.2-726 or 64.2-727 has the rights of a qualified beneficiary under this chapter.
  4. The Attorney General has the rights of a qualified beneficiary with respect to a charitable trust having its principal place of administration in the Commonwealth but need not be given notices or information required under §§ 64.2-758 and 64.2-775 unless otherwise requested. (2005, c. 935, § 55-541.10; 2012, c. 614.)

Law review. - For essay, "The Will to Prevail: Inside the Legal Battle to Save Sweet Briar," see 51 U. Rich. L. Rev. 227 (2016).

Michie's Jurisprudence. - For related discussion, see 3B M.J. Charitable Trusts, § 7.

CIRCUIT COURT OPINIONS

Beneficiary. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-709. Nonjudicial settlement agreements.

  1. For purposes of this section, "interested persons" means persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court.
  2. Except as otherwise provided in subsection C, interested persons may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.
  3. A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court under this chapter or other applicable law.
  4. Matters that may be resolved by a nonjudicial settlement agreement include:
    1. The interpretation or construction of the terms of the trust;
    2. The approval of a trustee's report or accounting;
    3. Direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power;
    4. The resignation or appointment of a trustee and the determination of a trustee's compensation;
    5. Transfer of a trust's principal place of administration; and
    6. Liability of a trustee for an action relating to the trust.
  5. Any interested person may petition the court to approve a nonjudicial settlement agreement, to determine whether the representation as provided in Article 3 (§ 64.2-714 et seq.) was adequate, and to determine whether the agreement contains terms and conditions the court could have properly approved. (2005, c. 935, § 55-541.11; 2012, c. 614.)

Article 2. Judicial Proceedings.

§ 64.2-710. Role of court in administration of trust.

  1. The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.
  2. Except as provided in Part A (§ 64.2-1200 et seq.) of Subtitle IV, a trust is not subject to continuing judicial supervision unless ordered by the court.
  3. A judicial proceeding involving a trust may relate to any matter involving the trust's administration, including a request for instructions and an action to declare rights.

    (2005, c. 935, § 55-542.01; 2012, c. 614.)

CASE NOTES

Court has authority to supervise all trusts. Moore v. Downham, 166 Va. 77 , 184 S.E. 199 (1936) (decided under former § 26-54).

CIRCUIT COURT OPINIONS

Creation of trust. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-711. Jurisdiction over trustee and beneficiary.

  1. By accepting the trusteeship of a trust having its principal place of administration in the Commonwealth or by moving the principal place of administration to the Commonwealth, the trustee submits personally to the jurisdiction of the courts of the Commonwealth regarding any matter involving the trust.
  2. With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in the Commonwealth are subject to the jurisdiction of the courts of the Commonwealth regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of the Commonwealth regarding any matter involving the trust.
  3. This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.

    (2005, c. 935, § 55-542.02; 2012, c. 614.)

§ 64.2-712. Proceedings to appoint or remove trustees.

  1. Proceedings to appoint or remove trustees may be brought by motion pursuant to §§ 64.2-1405 and 64.2-1406 .
  2. Proceedings to appoint or remove trustees also may be brought by petition or complaint. In such a proceeding, beneficiaries who are not qualified beneficiaries shall not be necessary parties, nor shall it be necessary to join (i) a trustee who has declined to accept the trust, resigned or been adjudicated an incapacitated person or (ii) the personal representative of a trustee.

    (2005, c. 935, § 55-542.05; 2012, c. 614.)

§ 64.2-713. Pleadings; parties; orders; notice.

  1. In judicial proceedings involving trusts governed under this chapter, including proceedings to modify or terminate a trust:
    1. Interests to be affected by the proceeding shall be described in pleadings that give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in any other appropriate manner.
    2. Orders shall bind persons as follows:
      1. An order binding the sole holder or all co-holders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, binds other persons to the extent their interests as objects, takers in default or otherwise are subject to such power.
      2. To the extent there is no conflict of interest between or among them:
        1. An order binding a conservator or a guardian of an estate binds the person whose estate he controls;
        2. An order binding a guardian of the person binds the ward if no conservator or guardian of his estate has been appointed;
        3. An order binding a trustee binds beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary, and in proceedings involving creditors or other third parties;
        4. An order binding a personal representative binds persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate; and
        5. An order binding a sole holder or all co-holders of a general testamentary power of appointment binds other persons to the extent their interests as objects, takers in default, or otherwise are subject to the power.
      3. Unless otherwise represented, a minor, an incapacitated, unborn, or unascertained person is bound by an order if his interest is adequately represented by another party having a substantially identical interest in the proceedings.
    3. Notice shall be given:
      1. Pursuant to Chapter 8 (§ 8.01-285 et seq.) of Title 8.01 and the Rules of Supreme Court of Virginia: (i) to every interested party or to a person who can bind an interested party pursuant to subdivision 2 a or 2 b; and (ii) if the proceeding seeks the modification or termination of a charitable trust or the sale of any of its real estate, to the public at large by order of publication published once a week for three consecutive weeks prior to any hearing or trial in a paper of general circulation in the county or city (a) of the trust's principal place of administration and (b) where any affected real estate of the trust is located. This notice provision does not change the common law rule that members of the public at large are not entitled to be parties to such judicial proceedings or to have any right to appear therein. The purpose of the notice, which shall be stated therein, is solely to make the public aware of the nature of such proceedings, the remedy being sought therein, and the opportunity to share their views in regard thereto with the Attorney General. The court shall not conduct any hearing or trial until it has made a finding that the required notice to the public has been given as specified herein.
      2. To unborn or unascertained persons who are not represented pursuant to subdivision 2 a or 2 b by giving notice to all known persons whose interests in the proceeding are substantially identical to those of the unborn or unascertained persons.
    4. Persons under a disability, or unborn or incapacitated persons may be represented during the course of a judicial proceeding as follows:
      1. At any point in a judicial proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. The guardian ad litem may be appointed to represent several persons or interests to the extent there is no conflict of interest among those persons or interests. The reasons for appointing a guardian ad litem shall be stated in the record of the proceedings.
      2. A minor or other person under a disability may be represented by an attorney-at-law duly licensed to practice in the Commonwealth who has entered of record an appearance on his behalf to the extent permitted by § 8.01-9 .
  2. The provisions of this section shall apply notwithstanding the Rules of Supreme Court of Virginia or any applicable provisions in Title 8.01.

    (2005, c. 935, § 55-542.06; 2007, c. 752; 2012, c. 614.)

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Article 3. Representation.

§ 64.2-714. Representation; basic effect.

  1. Notice to a person who may represent and bind another person under this chapter has the same effect as if notice were given directly to the other person.
  2. The consent of a person who may represent and bind another person under this chapter is binding on the person represented unless the person represented objects to the representation by notifying the trustee or the representative before the consent would otherwise have become effective.
  3. Except as otherwise provided in §§ 64.2-729 and 64.2-751 , a person who under this chapter may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor's behalf.
  4. A settlor may not represent and bind a beneficiary under this chapter with respect to the termination or modification of a trust under § 64.2-729 . (2005, c. 935, § 55-543.01; 2012, c. 614.)

§ 64.2-715. Representation by holder of general testamentary power of appointment.

To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.

(2005, c. 935, § 55-543.02; 2012, c. 614.)

§ 64.2-716. Representation by fiduciaries and parents or other ancestors.

To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:

  1. A conservator or guardian of the estate may represent and bind the estate that such fiduciary controls;
  2. A guardian may represent and bind the ward if a conservator or guardian of the ward's estate has not been appointed;
  3. An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
  4. A trustee may represent and bind the beneficiaries of the trust;
  5. A personal representative of a decedent's estate may represent and bind persons interested in the estate;
  6. A parent may represent and bind the parent's minor or unborn child if a guardian of the estate or guardian for the child has not been appointed; and
  7. If a minor or unborn person is not otherwise represented under this section, a grandparent or more remote ancestor may represent and bind that minor or unborn person.

    (2005, c. 935, § 55-543.03; 2012, c. 614.)

§ 64.2-717. Representation by person having substantially identical interest.

Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest with respect to the particular question or dispute between the representative and the person represented.

(2005, c. 935, § 55-543.04; 2012, c. 614.)

§ 64.2-718. Appointment of representative.

  1. If the court determines that an interest is not represented under this chapter, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.
  2. A representative may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.
  3. In making decisions, a representative may consider general benefit accruing to the living members of the individual's family.

    (2005, c. 935, § 55-543.05; 2012, c. 614.)

Article 4. Creation, Validity, Modification, and Termination of Trust.

§ 64.2-719. Methods of creating trust.

  1. A trust may be created by:
    1. Transfer of property to another person as trustee during the settlor's lifetime by the settlor or by the settlor's agent, acting in accordance with § 64.2-1612 , under a power of attorney that expressly authorizes the agent to create a trust on the settlor's behalf or by will or other disposition taking effect upon the settlor's death;
    2. Declaration by the owner of property that the owner holds identifiable property as trustee;
    3. Exercise of a power of appointment in favor of a trustee; or
    4. A conservator acting in accordance with § 64.2-2023 .
  2. A circuit court, upon petition from an interested party, may create and establish a trust with such trustee and such terms as the court determines. In an order creating and establishing the trust, the court shall determine whether the trustee shall have a duty to qualify in the clerk's office; post bond, with or without surety; or file an inventory and annual accounting with the commissioner of accounts as would apply to a testamentary trustee.

    (2005, c. 935, § 55-544.01; 2010, cc. 455, 632; 2012, c. 614; 2013, c. 523; 2016, c. 186.)

Editor's note. - Acts 2016, c. 186, cl. 2 provides: "That the provisions of this act are declarative of existing law."

The 2013 amendments. - The 2013 amendment by c. 523 added subdivision 4 and made a related change.

The 2016 amendments. - The 2016 amendment by c. 186 inserted the subsection A designation and added subsection B.

Law review. - For survey on wills, trusts, and estates in Virginia for 1989, see 23 U. Rich. L. Rev. 859 (1989). For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991). For an article, "Wills, Trusts, and Estates," see 31 U. Rich. L. Rev. 1249 (1997).

Research References. - Virginia Forms (Matthew Bender). No. 1-401 Petition for Approval of Compromise of Infant's Personal Injury Claim; No. 2-1506 Order Approving Compromise of Infant's Personal Injury Claim - Amount More Than $25,000, et seq.

Applied in Jimenez v. Corr, 288 Va. 395 , 764 S.E.2d 115 (2014).

CIRCUIT COURT OPINIONS

Testamentary trust. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-720. Requirements for creation.

  1. A trust is created only if:
    1. The settlor has capacity to create a trust; or when the trust is created by the settlor's agent under a power of attorney, which expressly authorizes the agent to create a trust on the settlor's behalf;
    2. The settlor or his agent indicates an intention to create the trust;
    3. The trust has a definite beneficiary or is:
      1. A charitable trust;
      2. A trust for the care of an animal, as provided in § 64.2-726 ; or
      3. A trust for a noncharitable purpose, as provided in § 64.2-727 ;
    4. The trustee has duties to perform; and
    5. The same person is not the sole trustee and sole beneficiary.
  2. A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.
  3. A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

    (2005, c. 935, § 55-544.02; 2010, cc. 455, 632; 2012, c. 614.)

CASE NOTES

Creation. - Decedent intended to execute trusts in favor of the beneficiaries, a retirement community resident and her daughter, because the decedent did not modify the amended trust, the decedent had a strong and very close relationship with the beneficiaries, he relied on them for assistance with his daily tasks and for the administration of his estate, and he intended to thank them and to express his affection by naming them as beneficiaries. Oliver v. Hines, 965 F. Supp. 2d 708 (E.D. Va. 2013).

CIRCUIT COURT OPINIONS

Creation. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-721. Trusts created in other jurisdictions.

A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation:

  1. The settlor was domiciled, had a place of abode, or was a national;
  2. A trustee was domiciled or had a place of business; or
  3. Any trust property was located.

    (2005, c. 935, § 55-544.03; 2012, c. 614.)

§ 64.2-722. Trust purposes.

A trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve. A trust and its terms shall be for the benefit of its beneficiaries.

(2005, c. 935, § 55-544.04; 2012, c. 614.)

Law review. - For note, "Charitable Trust Enforcement in Virginia," see 56 Va. L. Rev. 716 (1970).

CASE NOTES

State cannot enforce discriminatory provision in will. - A state cannot enforce a provision in the will of the founder of a college restricting enrollment to "white girls and young women," for to require compliance with such a testamentary restriction would constitute state action barred by the Fourteenth Amendment. Sweet Briar Inst. v. Button, 280 F. Supp. 312 (W.D. Va. 1967)(decided under prior law).

§ 64.2-723. Charitable purposes; enforcement.

  1. A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.
  2. If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection shall be consistent with the settlor's intention to the extent it can be ascertained.
  3. The settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.

    (2005, c. 935, § 55-544.05; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 3B M.J. Charitable Trusts, § 7.

Editor's note. - Most of the cases below were decided under prior comparable provisions.

CASE NOTES

Intention of legislature was to broaden scope of charitable trusts. - When the provisions of former § 26-54 are considered, they lend weight to the view that the General Assembly intended by the act to broaden the scope of charitable trusts and prevent their failure even though they are general and indefinite. Under former similar provisions, trusts which depend upon the discretion and personal confidence of the trustee in their exercise, where he refuses or fails to act, may be enforced by a substituted trustee who is given the power to exercise the discretion and personal confidence which was vested in the original trustee. Moore v. Downham, 166 Va. 77 , 184 S.E. 199 (1936).

Factors in determining general charitable intent. - The background of the testator, his interest and spirit in community projects, his education and business acumen, may all be considered in determining his general charitable intent, unless the same is foreclosed by the precise language of the will. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965).

Limiting uses by words "none other" does not foreclose consideration of such intent. - Where the testator devised and bequeathed his estate to his executors "to be held by them for the following uses and purposes and none other," use of the words "none other" does not foreclose any consideration of general charitable intent. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965) (decided under prior law).

The fact that the gift is for an indefinite number of persons is characteristic of a charitable or public trust. McClure v. Carter, 202 Va. 191 , 116 S.E.2d 260 (1958).

Charitable trust upheld. - A trust for "indigent widows and maiden ladies" was a charitable trust notwithstanding a suggestion in the will which created the trust as to who the beneficiaries might be. McClure v. Carter, 202 Va. 191 , 116 S.E.2d 260 (1958).

Trust held not to show charitable intent. - Attempted trust for school children was held to show not charitable but merely benevolent intent creating private express trust which court was not empowered by the predecessor statute to transform into charitable trust to evade rule against perpetuities. Shenandoah Valley Nat'l Bank v. Taylor, 192 Va. 135 , 63 S.E.2d 786 (1951), commented on in 9 Wash. & Lee L. Rev. 310 (1952).

High school converted to residential treatment center. - The trustees of a charitable trust establishing "a Home and School of Arts and Trades for Orphan Boys" had the authority, under the doctrine of cy pres, to cease the operations of the high school created under the trust, and to commence the operation of a residential treatment center directed toward aiding children with educational, emotional, behavioral, or social problems. Campbell v. Board of Trustees, 220 Va. 516 , 260 S.E.2d 204 (1979).

CIRCUIT COURT OPINIONS

Creation of charitable trust. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust. Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

Appointment of successor trustee. - Where the three original testamentary trustees had discretionary powers, the trust could be implemented in accordance with its terms by the surviving trustees pursuant to former § 26-54; the court, therefore, declined to appoint a successor trustee to replace a deceased trustee under § 26-48. In re Trust of Sams, 59 Va. Cir. 322, 2002 Va. Cir. LEXIS 376 (Richmond 2002)(decided under prior law).

§ 64.2-724. Creation of trust induced by fraud, duress, or undue influence.

A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

(2005, c. 935, § 55-544.06; 2012, c. 614.)

§ 64.2-725. Evidence of oral trust.

Except as required by a statute other than this chapter, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

(2005, c. 935, § 55-544.07; 2012, c. 614.)

§ 64.2-726. Trust for care of animal.

  1. A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal. Funds from the trust may be applied to any outstanding expenses of the trust and for burial or other postdeath expenditures for animal beneficiaries as provided for in the instrument creating the trust.
  2. The instrument creating the trust shall be liberally construed to bring the transfer within the scope of trusts governed by this section, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.
  3. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed. The appointed person shall have the rights of a trust beneficiary for the purpose of enforcing the trust, including receiving accountings, notices, and other information from the trustee and providing consents. Reasonable compensation for a person appointed by the court may be paid from the assets of the trust.
  4. Except as ordered by a court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or surety bond shall be required by reason of the existence of the fiduciary relationship of the trustee.
  5. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use shall be distributed to the settlor, if then living. If the settlor is deceased, such property shall be distributed pursuant to the residuary clause of the settlor's will if the trust for the animal was created in a preresiduary clause in the will or pursuant to the residuary provisions of the inter vivos trust if the trust for the animal was created in a preresiduary clause in the trust instrument; otherwise, such property shall be distributed to the settlor's successors in interest.

    (2005, c. 935, § 55-544.08; 2006, c. 666. 2012, c. 614.)

Law review. - For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

For article, "Max's Taxes: A Tax-Based Analysis of Pet Trusts," see 43 U. Rich. L. Rev. 1219 (2009).

Michie's Jurisprudence. - For related discussion, see 3B M.J. Charitable Trusts, §§ 7, 10.1.

§ 64.2-727. Noncharitable trust without ascertainable beneficiary.

Except as otherwise provided in § 64.2-726 or by another statute, the following rules apply:

  1. A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than 21 years.
  2. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court.
  3. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use shall be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

    (2005, c. 935, § 55-544.09; 2012, c. 614.)

Research References. - For related discussion, see 3B M.J. Charitable Trusts, §§ 7, 10.1.

§ 64.2-728. Modification or termination of trust; proceedings for approval or disapproval.

  1. In addition to the methods of termination prescribed by §§ 64.2-729 through 64.2-732 , a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, contrary to public policy, or impossible to achieve.
  2. A proceeding to approve or disapprove a proposed modification or termination under §§ 64.2-729 through 64.2-734 , or trust combination or division under § 64.2-735 , may be commenced by a trustee or beneficiary. The settlor of a charitable trust may maintain a proceeding to modify the trust under § 64.2-731 . (2005, c. 935, § 55-544.10; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1901 Petition to Terminate Testamentary Trust.

§ 64.2-729. Modification or termination of noncharitable irrevocable trust by consent.

  1. If upon petition the court finds that the settlor and all beneficiaries consent to the modification or termination of a noncharitable irrevocable trust, the court shall enter an order approving the modification or termination even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's power to consent to a trust's modification or termination may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust; by the settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or by the settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.
  2. A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
  3. Upon termination of a trust under subsection A or B, the trustee shall distribute the trust property as agreed by the beneficiaries.
  4. If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection A or B, the modification or termination may be approved by the court if the court is satisfied that:
    1. If all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and
    2. The interests of a beneficiary who does not consent will be adequately protected.

      (2005, c. 935, § 55-544.11; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Termination. - As the beneficiaries of the trust consented to the termination of the trust, under the statute the court could terminate if it appeared that continuance was not necessary to achieve any material purpose of the trust. Saunders v. AMG Nat'l Trust Bank (In re Vandeventer Trust), 88 Va. Cir. 389, 2014 Va. Cir. LEXIS 50 (Norfolk June 23, 2014).

Mere inclusion of a spendthrift restriction was insufficient alone to establish a presumption of a material purpose that prevented termination by consent of the beneficiaries; the material purpose of the trust was to provide income for the individual's life, and such purpose was not defeated by termination of the trust, inasmuch as she could enjoy that income at a reduced cost to her if the trust was terminated, and the beneficiaries were entitled to termination of the trust. Saunders v. AMG Nat'l Trust Bank (In re Vandeventer Trust), 88 Va. Cir. 389, 2014 Va. Cir. LEXIS 50 (Norfolk June 23, 2014).

Restatement. - Language of the actual Restatement section is almost identical to the statute, suggesting that Virginia law does not diverge from Restatement principles in this area. Saunders v. AMG Nat'l Trust Bank (In re Vandeventer Trust), 88 Va. Cir. 389, 2014 Va. Cir. LEXIS 50 (Norfolk June 23, 2014).

Modification of trust. - Petition to modify trust to allow the trustee to invade principal to satisfy beneficiary's medical expenses was denied where contingent beneficiaries were not in being, or not sui juris, and hence could not consent. Friedberg v. Tavss, 55 Va. Cir. 140, 2001 Va. Cir. LEXIS 256 (Norfolk 2001)(decided under prior law).

§ 64.2-730. Modification or termination because of unanticipated circumstances or inability to administer trust effectively.

  1. The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification shall be made in accordance with the settlor's probable intention.
  2. The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust's administration.
  3. Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.

    (2005, c. 935, § 55-544.12; 2012, c. 614.)

Law review. - For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

Research References. - Virginia Forms (Matthew Bender). No. 5-1901 Petition to Terminate Testamentary Trust.

CASE NOTES

Modification improper. - Circuit court erred in granting trustees' motions to divide a testamentary trust and to commute and terminate the charitable trust created by the division because under subsection A of § 55-544.12, the burden was upon the trustees to prove that the circumstances upon which they relied to justify modification of the trust were not anticipated by the testator, but they failed to carry that burden; the modifications the circuit court made would not further the purposes of the trust but completely frustrate them. Ladysmith Rescue Squad, Inc. v. Newlin, 280 Va. 195 , 694 S.E.2d 604 (2010)(decided under prior law).

CIRCUIT COURT OPINIONS

Burden of proof. - Moving party did not meet its burden to show that a decedent's trust should be modified to eliminate the requirement that the trust be administered by an institutional trustee. It seemed clear that the decedent intended for the trust to always have a non-individual trustee overseeing the administration of the trust. In re Estate of Brown, 87 Va. Cir. 353, 2013 Va. Cir. LEXIS 139 (Fairfax County Dec. 20, 2013).

§ 64.2-731. Cy pres.

  1. Except as otherwise provided in subsection B, if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful:
    1. The trust does not fail, in whole or in part;
    2. The trust property does not revert to the settlor or the settlor's successors in interest; and
    3. The court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor's charitable purposes.
  2. A provision in the terms of a charitable trust that would result in distribution of the trust property to a noncharitable beneficiary prevails over the power of the court under subsection A to apply cy pres to modify or terminate the trust only if, when the provision takes effect:
    1. The trust property is to revert to the settlor and the settlor is still living; or
    2. Fewer than 21 years have elapsed since the date of the trust's creation.

      (2005, c. 935, § 55-544.13; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 3B M.J. Charitable Trusts, § 12.

CASE NOTES

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

Former version of this section is called the cy pres statute. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965).

Former similar provisions were intended to prevent failure of charitable trusts. - They were enacted to aid in the supervision and enforcement of charitable trusts to prevent their failure occasioned by impossibility of specific performance. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965).

But it did not bring to life a trust that had failed or been declared invalid. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965).

Charitable gifts are viewed with peculiar favor by the courts in Virginia and every presumption consistent with the language contained in the instruments of gift will be employed in order to sustain them. All doubts will be resolved in their favor. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965).

And legislature may authorize courts to apply cy pres doctrine. - The legislature cannot terminate a charitable trust, nor change its administration on the ground of expediency, nor seek to control its disposition under the doctrine of cy pres. However, this does not suggest that the legislature cannot properly reserve to the judicial branch of government the power to do these acts. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965).

Prerequisites for invoking doctrine. - Before invoking the cy pres doctrine, it is necessary that there be (1) a valid charitable trust without a gift over, (2) an existing general charitable intent, and (3) the beneficiaries must be indefinite or uncertain, or (4) the purpose of the trust must be indefinite, impossible to perform, or so impracticable of performance as to characterize the fulfillment of the purpose as "impossible." Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965); United States ex rel. United States Coast Guard v. Cerio, 831 F. Supp. 530 (E.D. Va. 1993).

Cy pres does not require literal impossibility. United States ex rel. United States Coast Guard v. Cerio, 831 F. Supp. 530 (E.D. Va. 1993).

CIRCUIT COURT OPINIONS

Standing. - Because the cy pres doctrine precluded the corpus of a testamentary trust from reverting to the decedent's estate under subdivision A 3 of § 13.1-907 and former § 55-31, the decedent's cousin lacked standing to file a lawsuit to be allowed to inspect the records of the charity. Booker v. Chastain Home for Gentlewomen, Inc., 69 Va. Cir. 299, 2005 Va. Cir. LEXIS 318 (Halifax County 2005)(decided under prior law).

§ 64.2-732. Modification or termination of uneconomic trust.

  1. After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than $100,000 may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.
  2. The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.
  3. Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.
  4. This section does not apply to an easement for conservation or preservation.

    (2005, c. 935, § 55-544.14; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1901 Petition to Terminate Testamentary Trust, et seq.

CASE NOTES

The insufficiency of the fund provided is no good reason for defeating a charitable gift or trust if the intention of the donor can to some extent be carried into effect. Smith v. Moore, 225 F. Supp. 434 (E.D. Va. 1963), modified, 343 F.2d 594 (4th Cir. 1965) (decided under prior law).

§ 64.2-733. Reformation to correct mistakes.

The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.

(2005, c. 935, § 55-544.15; 2012, c. 614.)

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-734. Modification to achieve settlor's tax objectives.

To achieve the settlor's tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intention. The court may provide that the modification has retroactive effect.

(2005, c. 935, § 55-544.16; 2012, c. 614.)

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-735. Combination and division of trusts.

After notice to the qualified beneficiaries, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not materially impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust.

(2005, c. 935, § 55-544.17; 2012, c. 614.)

Law review. - For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

CASE NOTES

Modification improper. - Circuit court erred in granting trustees' motions to divide a testamentary trust and to commute and terminate the charitable trust created by the division because the modifications the circuit court made would not further the purposes of the trust but completely frustrate them; the division of the trust was merely a device to accomplish the desires of the trustees and first charitable beneficiary without having to seek the approval of the second charitable beneficiary, which was the only party expressing a desire to defend the testator's intent, and even that preliminary step adversely affected achievement of the purposes of the trust and contravened the provisions of § 55-544.17. Ladysmith Rescue Squad, Inc. v. Newlin, 280 Va. 195 , 694 S.E.2d 604 (2010)(decided under prior law).

CIRCUIT COURT OPINIONS

Consolidation of trusts. - Where the dispositive provisions of the trusts were substantially similar and there was good cause to consolidate the trusts as it would have prevented duplicative and unnecessary administrative efforts, the trial court found that consolidation was appropriate. In re Rauth, 66 Va. Cir. 315, 2004 Va. Cir. LEXIS 309 (Fairfax County 2004)(decided under prior law).

§ 64.2-736. Amendment of trust where gift, grant, or will establishes private foundation or constitutes a charitable trust or a split-interest trust.

When any such gift, grant, devise, or bequest establishes a private foundation, as defined in § 509 of the Internal Revenue Code, or constitutes a charitable trust, as described in § 4947(a)(1) of the Internal Revenue Code, or a split-interest trust, as described in § 4947(a)(2) of the Internal Revenue Code, the trustee or trustees of such trust, with the concurrence of the creator of the trust, if then living and able to give such consent, and the Attorney General, may, without resort to any court, unless such amendment is inconsistent with an express provision of such trust's governing instrument, amend the terms of such trust to bring such trust into or continue such trust in conformity with requirements for exemption of such trust, or any interest therein, from federal taxes. When such gift, grant, or will is recorded, a copy of such amendment shall be similarly recorded.

(2005, c. 935, § 55-544.18; 2012, c. 614.)

§ 64.2-737. Distribution of income of trust that is a private foundation or a charitable trust; prohibitions as to such private foundation.

Every trust that is a private foundation, as defined in § 509 of the Internal Revenue Code, or a charitable trust, as described in § 4947(a)(1) of the Internal Revenue Code, unless its governing instrument expressly includes specific provisions to the contrary, shall distribute its income, and if necessary principal, for each taxable year at such time and in such manner as not to subject such trust to tax under § 4942 of the Internal Revenue Code, and such trust shall not engage in any act of self-dealing, as defined in § 4941(d) of the Internal Revenue Code, retain any excess business holdings, as defined in § 4943(c) of the Internal Revenue Code, make any investments in such manner as to give rise to liability for the tax imposed by § 4944 of the Internal Revenue Code, or make any taxable expenditures, as defined in § 4945(d) of the Internal Revenue Code.

(2005, c. 935, § 55-544.19; 2012, c. 614.)

§ 64.2-738. Prohibitions as to trust that is deemed a split-interest trust.

Every trust that is a split-interest trust, as described in § 4947(a)(2) of the Internal Revenue Code, unless its governing instrument expressly includes specific provisions to the contrary, shall not engage in any act of self-dealing, as defined in § 4941(d) of the Internal Revenue Code, retain any excess business holdings, as defined in § 4943(c) of the Internal Revenue Code, that would give rise to liability for the tax imposed by § 4943(a) of the Internal Revenue Code, make any investments in such manner as to give rise to liability for the tax imposed by § 4944 of the Internal Revenue Code, or make any taxable expenditures, as defined in § 4945(d) of the Internal Revenue Code. This section shall not apply with respect to:

  1. Any amounts payable under the terms of such trust to income beneficiaries, unless a deduction was allowed under § 170(f)(2)(B), 2055(e)(2)(B), or 2522(c)(2)(B) of the Internal Revenue Code;
  2. Any amounts in trust other than amounts for which a deduction was allowed under § 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522 of the Internal Revenue Code, if such other amounts are segregated from amounts for which no deduction was allowable; or
  3. Any amounts transferred in trust before May 27, 1969.

    (2005, c. 935, § 55-544.20; 2012, c. 614.)

§ 64.2-739. Application of §§ 64.2-737 and 64.2-738.

Sections 64.2-737 and 64.2-738 shall apply to any private foundation, charitable trust, or split-interest trust defined or described therein and established after December 31, 1969; and to any such private foundation, charitable trust, or split-interest trust established before January 1, 1970, only for its taxable years beginning on and after January 1, 1972, unless the exceptions provided in § 508(e)(2)(A) or (B) of the Internal Revenue Code shall apply or unless the trustee or trustees shall elect that this section shall not apply by filing written notice of such election with the Attorney General, and with the clerk of the court in which its governing instrument may be recorded, on or before December 31, 1971.

(2005, c. 935, § 55-544.21; 2012, c. 614.)

§ 64.2-740. Interpretation of references to Internal Revenue Code in §§ 64.2-736 through 64.2-739.

Each reference to a section of the Internal Revenue Code made in §§ 64.2-736 through 64.2-739 shall include future amendments to such Code sections and corresponding provisions of future internal revenue laws.

(2005, c. 935, § 55-544.22; 2012, c. 614.)

§ 64.2-741. Powers of courts not impaired by §§ 64.2-736 through 64.2-740.

Nothing in §§ 64.2-736 through 64.2-740 shall impair the power of a court of competent jurisdiction with respect to any such foundation or trust.

(2005, c. 935, § 55-544.23; 2012, c. 614; 2015, c. 709.)

The 2015 amendments. - The 2015 amendment by c. 709 deleted "and the invalidity of any one or more of such sections shall not be deemed to affect the validity of other sections" at the end.

Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts.

§ 64.2-742. Rights of beneficiary's creditor or assignee.

To the extent a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances.

(2005, c. 935, § 55-545.01; 2007, c. 216; 2012, c. 614.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 4. Garnishment. § 4.8 Other Property Subject to Garnishment, et seq. Rendleman.

Virginia Forms (Matthew Bender). No. 15-106 Will Giving Entire Estate to Spouse with Trust for Children in the Event Spouse Predeceases Testator.

CASE NOTES

Self-settled trusts ineffective to shield assets. - The restriction that a trust can not "operate to the prejudice of any existing creditor of the creator of such trust" is the self-settled rule and has been consistently interpreted to prevent a self-settled trust from being exempt from the settlor-beneficiary's creditors; a spendthrift trust cannot be created by the beneficiary to shield his own assets from claims of his own creditors. In re Bissell, 255 Bankr. 402 (Bankr. E.D. Va. 2000) (decided under prior law).

Trust must be used for support and maintenance of beneficiary. - The statutory language protects the corpus of a spendthrift trust, the income of a trust, or both, from the beneficiaries' creditors only if the moneys of the trust are to be used for the support and maintenance of the beneficiary. Levey v. First Va. Bank, 845 F.2d 80 (4th Cir. 1988) (decided under prior law).

§ 64.2-743. Spendthrift provision.

  1. A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest.
  2. A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust," or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.
  3. A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this article, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.

    (2005, c. 935, § 55-545.02; 2012, c. 614.)

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Spendthrift trusts are recognized as valid in Virginia. Alderman v. Virginia Trust Co., 181 Va. 497 , 25 S.E.2d 333 (1943); Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

It would seem that spendthrift trusts can now be created in Virginia under former version of this section. Dunlop v. Dunlop's Ex'rs, 144 Va. 297 , 132 S.E. 351 (1926). But prior to the enactment of the predecessor section such trusts were not valid in Virginia. Thomas v. House, 145 Va. 742 , 134 S.E. 673 (1926).

Virginia law recognizes as valid a trust held for support and maintenance which the beneficiary cannot assign and his creditors cannot disturb. In re Hersch, 57 Bankr. 667 (Bankr. E.D. Va. 1986).

The purpose of the spendthrift trust is to prevent alienation and to free the income from claims of the beneficiary's creditors. Colonial-American Nat'l Bank v. United States, 243 F.2d 312 (4th Cir. 1957).

This section permits a donor to create such a trust within the statutory limitation, irrespective of the station in life of the beneficiary or his current needs. Alderman v. Virginia Trust Co., 181 Va. 497 , 25 S.E.2d 333 (1943).

Former version of this section contemplates that a testator may provide that the whole of the income or the corpus of a trust estate, not exceeding the statutory amount in actual value, shall be held free from his debts and expended for the support and maintenance of a cestui que trust, whether such amount be reasonably necessary or proper for his support and maintenance or not. Where the trustee is given the power to pay to him the income for such purposes as she may consider proper, but it is plain that the dominant purpose is to provide a support and maintenance for him, as against his creditors, the trustee may expend or pay to him for his support and maintenance only so much of the income as may be reasonably necessary or proper for such purpose. Rountree v. Lane, 155 F.2d 471 (4th Cir. 1946).

Breach of fiduciary duty by beneficiary not an exception to spendthrift protection. - A court cannot add an exception for a beneficiary's breach of fiduciary duty because that decision is solely within the province of the general assembly. Jackson v. Fid. & Deposit Co., 269 Va. 303 , 608 S.E.2d 901 (2005).

Surety that obtained judgment against a testatrix's son after paying a bond due to the son's defalcation as estate administrator was not entitled to garnish his spendthrift trust as (1) the will clearly manifested the testatrix's intent that the trust could not be alienated, and (2) breach of fiduciary duty was not among the exceptions to spendthrift protection set out under former § 55-19. Jackson v. Fid. & Deposit Co., 269 Va. 303 , 608 S.E.2d 901 (2005).

The spendthrift trust statute is not to be given a strict interpretation, especially if the settlor's intent is adduced from the instrument, and the intent may be implied from the instrument itself so long as it is not strictly construed or rigidly applied against the validity of spendthrift provisions. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

Spirit of section must be followed. - The spirit of the spendthrift trust statute must be followed and not simply the letter of the statute because to follow the letter many times would defeat the intent of the legislature when the statute was enacted. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

Requisites of creation and validity. - In order to be a valid spendthrift trust, it is essential that the trust comply with the requisites pertaining to its creation and validity, and these elements include a competent settlor and trustee, an ascertainable trust res, and certain beneficiaries. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

The defining characteristics of a spendthrift trust are three in number. The trust must provide for the support and maintenance of its beneficiary. In addition, the settlor must intend, whether evidenced by express provision or implied from the four corners of the trust instrument, to protect the trust from the beneficiary's creditors. Lastly, the settlor must intend also to prevent the beneficiary's voluntary or involuntary alienation. In re Hersch, 57 Bankr. 667 (Bankr. E.D. Va. 1986).

A spendthrift trust has three defining characteristics: First, the trust must provide for the support and maintenance of its beneficiary; second, the settlor must intend to protect the trust from the beneficiary's creditor; and third, the settlor must intend to prevent the beneficiary's voluntary or involuntary alienation of trust property. Levey v. First Va. Bank, 845 F.2d 80 (4th Cir. 1988).

Instrument construed to carry out intent of settlor. - Once it has been established that the requisite formalities of a spendthrift trust have been complied with, a court must focus its attention on the intent of the settlor when he created the trust at issue, and further, the court is bound to construe the instrument as far as possible to carry out the intention and purpose of the settlor. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

Intent to create trust must be manifest. - The settlor must not only intend to create a trust but must clearly manifest the intention to create it with the applicable spendthrift provisions. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

And may be gleaned from instrument as whole. - The intention to create a spendthrift trust may be based on construction of, and inference from, the trust instrument read as a whole. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

It is immaterial whether the intent is expressed in terms or by implication. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

Spendthrift trusts are not restricted to those where remainder is given to some other person or reverts to creator or his estate. - Former version of this section does not expressly or by necessary implication restrict the trusts for support and maintenance to which provisions against alienation and freedom from debts may lawfully be attached to those in which the remainder in the trust property is given to some other person or reverts to the creator or his estate. There is nothing in the language of the former section which would make such provisions invalid in a devise giving property in trust to a trustee for the support and maintenance of a person either for a term of years or for his life with remainder to him in the trust property upon the termination of the prospective trust. Sheridan v. Krause, 161 Va. 873 , 172 S.E. 508 (1934).

Will creating spendthrift trust need not follow precise terms of statute. - A bequest in trust obviously intended for the support and maintenance of the beneficiary falls within the terms of this section, although the will does not follow the precise terms of the statute and does not require the trustee to apply the income or corpus to the support and maintenance of the beneficiary and directs the trustee to pay the funds directly to the beneficiary. Rountree v. Lane, 155 F.2d 471 (4th Cir. 1946).

A spendthrift trust is not invalid, if the provision of the trust is that the trustee shall pay the income or corpus to the cestui que trust for his support and maintenance instead of providing that it "shall be applied by the trustee" to his support and maintenance. Sheridan v. Krause, 161 Va. 873 , 172 S.E. 508 (1934); Rountree v. Lane, 155 F.2d 471 (4th Cir. 1946).

An equitable fee simple or absolute equitable estate may be given to a person subject to any spendthrift trust for his benefit for his life, or a lesser period, which would be good if the remainder in the trust property were given to another. Sheridan v. Krause, 161 Va. 873 , 172 S.E. 508 (1934); Alderman v. Virginia Trust Co., 181 Va. 497 , 25 S.E.2d 333 (1943).

No distinction is made by the legislature between the policy of protection of income and protection of corpus, nor does there seem to be any logical distinction between either, so long as the trust fund remains in the hands of the trustee subject to the provisions of the trust instrument. Alderman v. Virginia Trust Co., 181 Va. 497 , 25 S.E.2d 333 (1943).

Corpus and income are stated both in the conjunctive and disjunctive. The provision is double-barrelled. Both or either of them may be held and applied for the support and maintenance of beneficiaries "without being subject to their liabilities or to alienation by them." The words "and" and "or either of them" emphasize the inclusion of both within the protection of the predecessor statute. Alderman v. Virginia Trust Co., 181 Va. 497 , 25 S.E.2d 333 (1943).

Language sufficient to create trust. - While mere precatory language such as "with the understanding" is not enough to create a valid spendthrift trust, such language as "for the support and maintenance of my said son without being subject to his liabilities or to alienation by him" has been held valid. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

Where a decedent's intent was clearly stated in a trust instrument that he intended to provide for the support, maintenance, and comfort of his family upon his death, and that he intended to prevent his beneficiaries from assigning their interests in the trust and that they be free from their creditors under the law of Virginia, it was evident that the trust was a spendthrift trust. Allen v. Wilson, 3 Bankr. 439 (Bankr. W.D. Va. 1980).

Mere designation of funds for support and maintenance not sufficient for protective intent. - While no Virginia court has decided the question, other authorities indicate that the mere designation of funds for application to support and maintenance is not a sufficient basis from which the court may infer the requisite protective intent. In re Hersch, 57 Bankr. 667 (Bankr. E.D. Va. 1986).

Keogh retirement trust did not qualify as spendthrift trust. - The revocable nature of a debtor's tax-qualified self-employment Keogh retirement trust was incompatible with the idea of a spendthrift trust. Also, the spendthrift provisions of this trust removing the debtor's assets from the reach of creditors were unenforceable for the reason that the settlor was also the beneficiary. As a result, the trust did not qualify as a valid traditional spendthrift trust under "applicable nonbankruptcy law" and, therefore, the property could not be excluded from the debtor's bankruptcy estate. Parkinson v. Bradford Trust Co. (In re O'Brien), 50 Bankr. 67 (Bankr. E.D. Va. 1985).

Language held not to create spendthrift trust. - Language used in a will, beginning "with the understanding" was held to be nothing more than a request, desire or recommendation, constituting mere precatory words which do not create a spendthrift trust. Carson v. Simmons, 198 Va. 854 , 96 S.E.2d 800 (1957).

An annuity policy set up as a settlement for medical malpractice held not to be a spendthrift trust where there was no evidence of the necessary intent to create such a trust, despite the fact that the beneficiary of the annuity could not cash it in and that he would testify that he used it for his support and maintenance. In re Riley, 91 Bankr. 389 (Bankr. E.D. Va. 1988).

Beneficiary of annuity held to have no rights in the principal. - A debtor who was the beneficiary of an annuity which was set up as settlement for medical malpractice was held to have the interest of a chose in action, and therefore, no rights in the principal paid by the annuity purchaser. In re Riley, 91 Bankr. 389 (Bankr. E.D. Va. 1988).

§ 64.2-744. Exceptions to spendthrift provision.

  1. In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.
  2. Even if a trust contains a spendthrift provision, a beneficiary's child who has a judgment or court order against the beneficiary for support or maintenance, or a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust, may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary.
  3. Subject to the limitations of § 64.2-745 , no spendthrift provision shall operate to the prejudice of the United States, the Commonwealth, or any county, city, or town.
  4. A claimant against which a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of a beneficiary. The court may limit the award of such relief as is appropriate under the circumstances.

    (2005, c. 935, § 55-545.03; 2007, c. 216; 2012, c. 614.)

CASE NOTES

Breach of fiduciary duty by beneficiary not an exception to spendthrift protection. - Surety that obtained judgment against a testatrix's son after paying a bond due to the son's defalcation as estate administrator was not entitled to garnish his spendthrift trust as (1) the will clearly manifested the testatrix's intent that the trust could not be alienated, and (2) breach of fiduciary duty was not among the exceptions to spendthrift protection set out in former § 55-19. Jackson v. Fid. & Deposit Co., 269 Va. 303 , 608 S.E.2d 901 (2005) (decided under prior law).

A court cannot add an exception for a beneficiary's breach of fiduciary duty because that decision is solely within the province of the general assembly. Jackson v. Fid. & Deposit Co., 269 Va. 303 , 608 S.E.2d 901 (2005) (decided under prior law).

§ 64.2-745. Certain claims for reimbursement for public assistance.

  1. Notwithstanding any contrary provision in the trust instrument, if a statute or regulation of the United States or Commonwealth requires a beneficiary to reimburse the Commonwealth or any agency or instrumentality thereof, for public assistance, including medical assistance, furnished or to be furnished to the beneficiary, the Attorney General or an attorney acting on behalf of the state agency responsible for the program may file a petition in the circuit court having jurisdiction over the trustee requesting reimbursement. The petition may be filed prior to obtaining a judgment. The beneficiary, the guardian of his estate, his conservator, or his committee shall be made a party.
  2. Following its review of the circumstances of the case, the court may:
    1. Order the trustee to satisfy all or part of the liability out of all or part of the amounts to which the beneficiary is entitled, whether presently or in the future, to the extent the beneficiary has the right under the trust to compel the trustee to pay income or principal to or for the benefit of the beneficiary; or
    2. Regardless of whether the beneficiary has the right to compel the trustee to pay income or principal to or for the benefit of the beneficiary, order the trustee to satisfy all or part of the liability out of all or part of any future payments that the trustee chooses to make to or for the benefit of the beneficiary in the exercise of discretion under the trust.
  3. A duty in the trustee under the instrument to make disbursements in a manner designed to avoid rendering the beneficiary ineligible for public assistance to which he might otherwise be entitled, however, shall not be construed as a right possessed by the beneficiary to compel such payments.
  4. The court shall not issue an order pursuant to this section if the beneficiary is a person who has a medically determined physical or mental disability that substantially impairs his ability to provide for his care or custody, and constitutes a substantial handicap.

    (2005, c. 935, § 55-545.03:1; 2012, c. 614.)

§ 64.2-745.1. Self-settled spendthrift trusts.

  1. A settlor may transfer assets to a qualified self-settled spendthrift trust and retain in that trust a qualified interest, and, except as otherwise provided in this article, § 64.2-747 shall not apply to such qualified interest.
  2. Section 64.2-747 shall continue to apply with respect to any interest held by a settlor in a qualified self-settled spendthrift trust, other than a qualified interest.
  3. A settlor's transfer to a qualified self-settled spendthrift trust shall not, to the extent of the settlor's qualified interest, be deemed to have been made with intent to delay, hinder, or defraud creditors, for purposes of § 55.1-400 , merely because it is made to a trust with respect to which the settlor retains a qualified interest and merely because it is made without consideration. A settlor's transfer to a qualified self-settled spendthrift trust may, however, be set aside under § 55.1-400 or 55.1-401 on other bases, such as if the transfer renders the settlor insolvent.
  4. A settlor's creditor may bring an action under § 55.1-402 to avoid a transfer to a qualified self-settled spendthrift trust or otherwise to enforce a claim that existed on the date of the settlor's transfer to such trust within five years after the date of the settlor's transfer to such trust to which such claim relates.
  5. A creditor shall have only such rights with respect to a settlor's transfer to a qualified self-settled spendthrift trust as are provided in this section. No creditor and no other person shall have any claim or cause of action against any trustee, trust adviser, trust director, or any person involved in the counseling, drafting, preparation, or execution of, or transfers to a qualified self-settled spendthrift trust.
  6. If a settlor makes more than one transfer to the same qualified self-settled spendthrift trust, the following rules shall apply:
    1. The settlor's making of a subsequent transfer shall be disregarded in determining whether a creditor's claim with respect to a prior transfer is valid under this section;
    2. With respect to each subsequent transfer by the settlor, the five-year limitations period provided in subsection D, with respect to actions brought under Chapter 4 (§ 55.1-400 et seq.) of Title 55.1 with respect to the subsequent transfer, commences on the date of such subsequent transfer; and
    3. Any distribution to a beneficiary is deemed to have been made from the latest such transfer.
  7. The movement to the Commonwealth of the administration of an existing trust, which, after such movement to the Commonwealth, meets for the first time all of the requirements of a qualified self-settled spendthrift trust, shall be treated, for purposes of this section, as a transfer to this trust by the settlor on the date of such movement of all of the assets previously transferred to the trust by the settlor.

    (2012, c. 555, § 55-545.03:2; 2012, c. 614.)

Editor's note. - Acts 2012, c. 555 enacted former § 55-545.03:2, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the enactment by Acts 2012, c. 555 has been given effect in this section as set out above.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "55.1-400" for "55-80," "55.1-400 or 55.1-401 " for "55-80 or 55-81," "55.1-402" for "55-82" and "Chapter 4 ( § 55.1-400 et seq.) of Title 55.1" for "Chapter 5 of Title 55."

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 11. Fraudulent and Voluntary Conveyances. § 11.1 Introduction. Rendleman.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 21 Conditions, Trusts and Powers. § 21.22A Qualified Self-Settled Spendthrift Trust. Cox.

§ 64.2-745.2. Definitions; vacancies; right to withdraw.

  1. As used in this article, unless the context requires a different meaning: "Independent qualified trustee" means a qualified trustee who is not, and whose actions are not, subject to direction by:
    1. The settlor;
    2. Any natural person who is not a resident of the Commonwealth;
    3. Any entity that is not authorized under Title 6.2 to engage in trust business within the Commonwealth;
    4. The settlor's spouse;
    5. A parent of the settlor;
    6. Any issue of the settlor;
    7. A sibling of the settlor;
    8. An employee of the settlor;
    9. A business entity in which the settlor's holdings represent at least 30 percent of the total voting power of all interests entitled to vote;
    10. A subordinate employee of the settlor; or
    11. A subordinate employee of a business entity in which the settlor is an executive. "Qualified interest" means a settlor's interest in a qualified self-settled spendthrift trust, to the extent that such interest entitles the settlor to receive distributions of income, principal, or both, in the sole discretion of an independent qualified trustee. A settlor may have a qualified interest in a qualified self-settled spendthrift trust and also have an interest in the same trust that is not a qualified interest, and the rules of § 64.2-747 shall apply to each interest of the settlor in the same trust other than the settlor's qualified interest. "Qualified self-settled spendthrift trust" means a trust if: 1. The trust is irrevocable; 2. The trust is created during the settlor's lifetime; 3. There is, at all times when distributions could be made to the settlor pursuant to the settlor's qualified interest, at least one beneficiary other than the settlor (i) to whom income may be distributed, if the settlor's qualified interest relates to trust income, (ii) to whom principal may be distributed, if the settlor's qualified interest relates to trust principal, or (iii) to whom both income and principal may be distributed, if the settlor's qualified interest relates to both trust income and principal; 4. The trust has at all times at least one qualified trustee, who may be, but need not be, an independent qualified trustee; 5. The trust instrument expressly incorporates the laws of the Commonwealth to govern the validity, construction, and administration of the trust; 6. The trust instrument includes a spendthrift provision, as defined in § 64.2-743 , that restrains both voluntary and involuntary transfer of the settlor's qualified interest; and 7. The settlor does not have the right to disapprove distributions from the trust. "Qualified trustee" means any person who is a natural person residing within the Commonwealth or a legal entity authorized to engage in trust business within the Commonwealth and who maintains or arranges for custody within the Commonwealth of some or all of the property that has been transferred to the trust by the settlor, maintains records within the Commonwealth for the trust on an exclusive or nonexclusive basis, prepares or arranges for the preparation within the Commonwealth of fiduciary income tax returns for the trust, or otherwise materially participates within the Commonwealth in the administration of the trust. A trustee is not a qualified trustee if such trustee's authority to make distributions of income or principal or both are subject to the direction of someone who, were that person a trustee of the trust, would not meet the requirements to be a qualified trustee.
  2. A vacancy in the position of qualified trustee that occurs for any reason, whether or not there is then serving another trustee, shall be filled in the following order of priority:
    1. By a person eligible to be a qualified trustee and who is designated pursuant to the terms of the trust to act as successor trustee;
    2. By a person eligible to be a qualified trustee and who is designated by unanimous agreement of the qualified beneficiaries; or
    3. By a person eligible to be a qualified trustee and who is appointed by the court pursuant to §§ 64.2-1405 and 64.2-1406 or pursuant to § 64.2-712 .
  3. A vacancy in the position of independent qualified trustee that occurs for any reason, whether or not there is then serving another trustee, shall be filled in the following order of priority:
    1. By a person eligible to be an independent qualified trustee and who is designated pursuant to the terms of the trust to act as successor trustee;
    2. By a person eligible to be an independent qualified trustee and who is designated by unanimous agreement of the qualified beneficiaries; or
    3. By a person eligible to be an independent qualified trustee and who is appointed by the court pursuant to §§ 64.2-1405 and 64.2-1406 or pursuant to § 64.2-712 .
  4. A trust instrument shall not be deemed revocable on account of the inclusion of any one or more of the following rights, powers, and interests:
    1. A power of appointment, exercisable by the settlor by will or other written instrument effective only upon the settlor's death, other than a power to appoint to the settlor's estate or the creditors of the settlor's estate;
    2. The settlor's qualified interest in the trust;
    3. The settlor's right to receive income or principal pursuant to an ascertainable standard;
    4. The settlor's potential or actual receipt of income or principal from a charitable remainder unitrust or charitable remainder annuity trust (each within the meaning of § 664(d) of the Internal Revenue Code) and the settlor's right, at any time, and from time to time, to release, in writing delivered to the qualified trustee, all or any part of the settlor's retained interest in such trust;
    5. The settlor's receipt each year of a percentage, not to exceed five percent, specified in the trust instrument of the initial value of the trust assets or their value determined from time to time pursuant to the trust instrument;
    6. The settlor's right to remove a trustee and to appoint a new trustee;
    7. The settlor's potential or actual use of real property held under a personal residence trust (within the meaning of § 2702(c) of the Internal Revenue Code);
    8. The settlor's potential or actual receipt or use of a qualified annuity interest (within the meaning of § 2702 of the Internal Revenue Code);
    9. The ability of a qualified trustee, whether pursuant to discretion or direction, to pay, after the settlor's death, all or any part of the settlor's debts outstanding at the time of the settlor's death, the expenses of administering the settlor's estate, or any estate inheritance tax imposed on or with respect to the settlor's estate; and
    10. A settlor's potential or actual receipt of income or principal to pay, in whole or in part, income taxes due on trust income, or the direct payment of such taxes to the applicable tax authorities, pursuant to a provision in the trust instrument that expressly provides for the direct payment of such taxes or the reimbursement of the settlor for such tax payments.
  5. A beneficiary who has the right to withdraw his entire beneficial interest in a trust shall be treated as its settlor to the extent of such withdrawal right, when such right to withdraw has lapsed, been released, or otherwise expired, without regard to the limitations otherwise imposed by subsection B of § 64.2-747 . (2012, c. 555, 55-545.03:3; 2012, c. 614.)

Editor's note. - Acts 2012, c. 555 enacted former § 55-545.03:3, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the enactment by Acts 2012, c. 555 has been given effect in this section as set out above.

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 21 Conditions, Trusts and Powers. § 21.22A Qualified Self-Settled Spendthrift Trust. Cox.

§ 64.2-746. Discretionary trusts; effect of standard.

  1. In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.
  2. Except as otherwise provided in subsection C and § 64.2-745 , whether or not a trust contains a spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if:
    1. The discretion is expressed in the form of a standard of distribution; or
    2. The trustee has abused the discretion.
  3. To the extent a trustee has not complied with a standard of distribution or has abused a discretion:
    1. A distribution may be ordered by the court to satisfy a judgment or court order against the beneficiary for support or maintenance of the beneficiary's child; and
    2. The court shall direct the trustee to pay to the child such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion.
  4. This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.
  5. A creditor may not reach the interest of a beneficiary who is also a trustee or cotrustee, or otherwise compel a distribution, if the trustee's discretion to make distributions for the trustee's own benefit is limited by an ascertainable standard.

    (2005, c. 935, § 55-545.04; 2012, c. 614.)

CASE NOTES

Intention of legislature was to broaden scope of charitable trusts. - When the provisions of former § 26-54 are considered, they lend weight to the view that the General Assembly intended by the act to broaden the scope of charitable trusts and prevent their failure even though they are general and indefinite. Trusts which depend upon the discretion and personal confidence of the trustee in their exercise, where he refuses or fails to act, may be enforced by a substituted trustee who is given the power to exercise the discretion and personal confidence that was vested in the original trustee. Moore v. Downham, 166 Va. 77 , 184 S.E. 199 (1936) (decided under former § 26-54) See Roller v. Shaver, 178 Va. 467 , 17 S.E.2d 419 (1941) (decided under prior law).

§ 64.2-747. Creditor's claim against settlor.

  1. Whether or not the terms of a trust contain a spendthrift provision, the following rules apply:
    1. During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors.
    2. With respect to an irrevocable trust, except to the extent otherwise provided in §§ 64.2-745.1 and 64.2-745.2 , a creditor or assignee of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution. A trustee's discretionary authority to pay directly or to reimburse the settlor for any tax on trust income or principal that is payable by the settlor shall not be considered to be an amount that can be distributed to or for the settlor's benefit, and a creditor or assignee of the settlor shall not be entitled to reach any amount solely by reason of this discretionary authority.
    3. After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children including the family allowance, the right to exempt property, and the homestead allowance to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, expenses, and allowances. This section shall not apply to life insurance proceeds under § 38.2-3122 . No proceeding to subject a trustee, trust assets, or distributees of such assets to such claims, costs, and expenses shall be commenced unless the personal representative of the settlor has received a written demand by a surviving spouse, a creditor, or one acting for a minor or dependent child of the settlor, and no proceeding shall be commenced later than two years following the death of the settlor. This section shall not affect the right of a trustee to make distributions required or permitted by the terms of the trust prior to being served with process in a proceeding brought by the personal representative.
  2. For purposes of this section:
    1. During the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power; and
    2. Upon the lapse, release, or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greatest of (i) the amount specified in § 2041(b)(2) or 2514(e) of the Internal Revenue Code of 1986, (ii) the amount specified in § 2503(b) of the Internal Revenue Code of 1986, or (iii) two times the amount specified in § 2503(b) of the Internal Revenue Code of 1986 if the donor was married at the time of the transfer to which the power of withdrawal applies.
    3. The assets in a trust that are attributable to a contribution to an inter vivos marital deduction trust described in either § 2523(e) or (f) of the Internal Revenue Code of 1986, after the death of the spouse of the settlor of the inter vivos marital deduction trust shall be deemed to have been contributed by the settlor's spouse and not by the settlor.

      (2005, c. 935, § 55-545.05; 2011, c. 354; 2012, cc. 555, 614, 718; 2013, c. 784.)

Editor's note. - Acts 2012, c. 555 amended former § 55-545.05, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendment by Acts 2012, c. 555 has been given effect in this section by inserting "except to the extent otherwise provided in §§ 64.2-745.1 and 64.2-745.2 " in subdivision A 2.

Acts 2012, c. 718 amended former § 55-545.05, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendment by Acts 2012, c. 718 has been given effect in this section by inserting the third sentence in subdivision A 2.

Acts 2013, c. 784, effective April 3, 2013, in cl. 2 provides: "That the provisions of this act shall be effective retroactively to October 1, 2012."

The 2013 amendments. - The 2013 amendment by c. 784, effective April 3, 2013, and applicable retroactively to October 1, 2012, in subdivision B 2, inserted the clause (i) and (ii) designators and clause (iii), substituted "the greatest of" for "the greater of" preceding "(i)" and inserted "the amount specified in" following "(ii)"; and added subdivision B 3.

Research References. - Virginia Forms (Matthew Bender). No. 15-338. Sample Clauses for Asset Protection Trust; No. 16-544. Deed of Distribution by Trustees of Inter Vivos Revocable Trust.

CASE NOTES

Chapter 7 debtor trustee. - Chapter 7 debtor, in her capacity as the sole trustee of a self-settled spendthrift trust, subject to former § 55-545.05, was obligated to turnover the trust assets pursuant to 11 U.S.C.S. § 542(a), even though her deceased husband had contributed part of the property to the trust. In re Salahi,, 2012 Bankr. LEXIS 1813 (Bankr. E.D. Va. Apr. 24, 2012) (decided under prior law).

§ 64.2-748. Overdue distribution.

  1. In this section "mandatory distribution" means a distribution of income or principal that the trustee is required to make to a beneficiary under the terms of the trust, including a distribution upon termination of the trust. The term does not include a distribution subject to the exercise of the trustee's discretion even if (i) the discretion is expressed in the form of a standard of distribution or (ii) the terms of the trust authorizing a distribution use language of discretion with language of direction.
  2. Whether or not a trust contains a spendthrift provision, a creditor or assignee of a beneficiary may reach a mandatory distribution of income or principal, including a distribution upon termination of the trust, if the trustee has not made the distribution to the beneficiary within a reasonable time after the designated distribution date.

    (2005, c. 935, § 55-545.06; 2007, c. 216; 2012, c. 614.)

§ 64.2-749. Personal obligations of trustee.

Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.

(2005, c. 935, § 55-545.07; 2012, c. 614.)

Article 6. Revocable Trusts.

§ 64.2-750. Capacity of settlor of revocable trust.

The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

(2005, c. 935, § 55-546.01; 2012, c. 614.)

§ 64.2-751. Revocation or amendment of revocable trust.

  1. Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2006.
  2. If a revocable trust is created or funded by more than one settlor:
    1. To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
    2. To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and
    3. Upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.
  3. The settlor may revoke or amend a revocable trust:
    1. By substantial compliance with a method provided in the terms of the trust; or
    2. If the terms of the trust do not provide a method, by any method manifesting clear and convincing evidence of the settlor's intent.
  4. Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
  5. A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent, acting in accordance with § 64.2-1612 , under a power of attorney that expressly authorizes such action except to the extent expressly prohibited by the terms of the trust.
  6. A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only (i) to the extent expressly authorized by the terms of the trust or (ii) if authorized by the court supervising the conservatorship or guardianship for good cause shown.
  7. A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.

    (2005, c. 935, § 55-546.02; 2010, cc. 455, 632; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Intent to revoke. - Trial court granted partial summary judgment to the trustee after the conservator and trustee battled over the continued viability of their father's revocable trust created approximately 10 years earlier; the trial court found that the trust stated how the trust could be revoked, by written instrument delivered to the trustee, and that neither that type of conduct or any other manifestation of intent in the case occurred that would signal the testator's intent to revoke the trust. McCall v. Elver, 73 Va. Cir. 328, 2007 Va. Cir. LEXIS 128 (Newport News 2007)(decided under prior law).

§ 64.2-752. Settlor's powers; powers of withdrawal.

  1. While a trust is revocable, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
  2. While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust.
  3. During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.

    (2005, c. 935, § 55-546.03; 2012, c. 614; 2020, c. 768.)

The 2020 amendments. - The 2020 amendment by c. 768, inserted a new subsection B and redesignated former subsection B as subsection C.

CASE NOTES

Property held in revocable trust remained marital property. - On appeal from the parties' divorce action, the husband's evidence supported the trial court's determination that a farm was held in a revocable trust. Thus, the parties' retention of the right to revoke the trust supported the conclusion that the property remained marital and subject to equitable distribution. Spreadbury v. Spreadbury, No. 1053-09-4, 2010 Va. App. LEXIS 151 (Ct. of Appeals Apr. 20, 2010)(decided under prior law).

§ 64.2-753. Limitation on action contesting validity of revocable trust; distribution of trust property.

  1. A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of:
    1. Two years after the settlor's death; or
    2. Six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding.
  2. Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
    1. The trustee knows of a pending judicial proceeding contesting the validity of the trust; or
    2. A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent the notification.
  3. A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.

    (2005, c. 935, § 55-546.04; 2007, c. 218; 2012, c. 614.)

Article 7. Office of Trustee.

§ 64.2-754. Accepting or declining trusteeship.

  1. Except as otherwise provided in subsection C, a person designated as trustee accepts the trusteeship:
    1. By substantially complying with a method of acceptance provided in the terms of the trust; or
    2. If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.
  2. A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship.
  3. A person designated as trustee, without accepting the trusteeship, may:
    1. Act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a qualified beneficiary; and
    2. Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.

      (2005, c. 935, § 55-547.01; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Ripeness of suit by beneficiary. - Although the beneficiary of a sub-trust may have had standing to bring a derivative action against the trustee of the primary trust, personally and in the trustee's representative capacity, any claims brought on behalf of the sub-trust were not ripe for a derivative action against the trustee because the beneficiary did not allege that the designated trustee of the sub-trust had improperly refused or neglected to bring an action against a third person. Garcia v. Suda, 94 Va. Cir. 246, 2016 Va. Cir. LEXIS 134 (Fairfax County Sept. 6, 2016).

Acceptance shown. - In a case alleging the mismanagement of irrevocable trusts, a trustee accepted a trusteeship because notifying a beneficiary of her right to withdraw money from a trust fell within the statutory language. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-755. Trustee's bond.

  1. Except as otherwise provided in Part A (§ 64.2-1200 et seq.) of Subtitle IV, a trustee shall give bond, or bond with surety or other security, to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.
  2. The court may specify the amount of a bond, its liabilities, and whether sureties are necessary. The court may modify or terminate a bond at any time.
  3. A regulated financial service institution qualified to do trust business in the Commonwealth need not give bond, even if required by the terms of the trust.

    (2005, c. 935, § 55-547.02; 2012, c. 614.)

§ 64.2-756. Cotrustees.

  1. Cotrustees who are unable to reach a unanimous decision may act by majority decision.
  2. If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust.
  3. Subject to subsection I, a cotrustee shall participate in the performance of a trustee's function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other law, or other temporary incapacity, or the cotrustee has properly delegated the performance of the function to another trustee.
  4. If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.
  5. A trustee may delegate to a cotrustee the performance of any function other than a function that the terms of the trust expressly require to be performed by the trustees jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation previously made.
  6. Except as otherwise provided in subsection G, a trustee who does not join in an action of another trustee is not liable for the action.
  7. Subject to subsection I, each trustee shall exercise reasonable care to:
    1. Prevent a cotrustee from committing a serious breach of trust; and
    2. Compel a cotrustee to redress a serious breach of trust.
  8. A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified any cotrustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust.
  9. The terms of a trust may relieve a cotrustee from duty and liability with respect to another cotrustee's exercise or nonexercise of a power of the other cotrustee to the same extent that in a directed trust a directed trustee is relieved from duty and liability with respect to a trust director's power of direction under §§ 64.2-779.32 , 64.2-779.33 , and 64.2-779.34 . (2005, c. 935, § 55-547.03; 2012, c. 614; 2020, c. 768.)

The 2020 amendments. - The 2020 amendment by c. 768, in subsection C, substituted "Subject to subsection I, a cotrustee" for "A cotrustee"; in subsection G, substituted "Subject to subsection I, each trustee" for "Each trustee" and added subsection I.

CASE NOTES

Bankruptcy. - Where debtor was a co-fiduciary of funds owned by plaintiff and the other co-fiduciary took the funds, debtor owed plaintiff an obligation that was not dischargeable pursuant to 11 U.S.C.S. § 523(a)(4) because the debt resulted from debtor's defalcation, i.e., his failure to protect and to account for the funds, while acting in a fiduciary capacity. Racetrac Petroleum, Inc. v. Ahmed (In re Khan),, 2012 Bankr. LEXIS 5537 (Bankr. E.D. Va. Nov. 29, 2012).

§ 64.2-757. Vacancy in trusteeship; appointment of successor.

  1. A vacancy in a trusteeship occurs if:
    1. A person designated as trustee rejects the trusteeship;
    2. A person designated as trustee cannot be identified or does not exist;
    3. A trustee resigns;
    4. A trustee is disqualified or removed;
    5. A trustee dies; or
    6. An individual serving as trustee is adjudicated an incapacitated person.
  2. If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship shall be filled if the trust has no remaining trustee.
  3. A vacancy in a trusteeship of a noncharitable trust that is required to be filled shall be filled in the following order of priority:
    1. By a person designated pursuant to the terms of the trust to act as successor trustee;
    2. By a person appointed by unanimous agreement of the qualified beneficiaries; or
    3. By a person appointed by the court pursuant to §§ 64.2-1405 and 64.2-1406 , or pursuant to § 64.2-712 .
  4. A vacancy in a trusteeship of a charitable trust that is required to be filled shall be filled in the following order of priority:
    1. By a person designated pursuant to the terms of the trust to act as successor trustee;
    2. By a person selected by the charitable organizations expressly designated to receive distributions under the terms of the trust, subject, however, to the concurrence of the Attorney General in any case in which he has previously requested of an organization so designated that he be consulted regarding the selection of successor; or
    3. By a person appointed by the court pursuant to §§ 64.2-1405 and 64.2-1406 , or pursuant to § 64.2-712 .
  5. Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust.
  6. A successor or surviving trustee shall succeed to all the rights, powers, and privileges, and shall be subject to all the duties, liabilities, and responsibilities imposed upon the original trustee without regard to the nature of discretionary powers conferred by the instrument, unless the trust instrument expressly provides to the contrary, or unless an order appointing the successor trustee provides otherwise.

    (2005, c. 935, § 55-547.04; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Appointment of trustee. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

§ 64.2-758. Resignation of trustee.

  1. A trustee may resign:
    1. Upon at least 30 days' notice to the settlor, if living, to all cotrustees, and to the qualified beneficiaries except those qualified beneficiaries under a revocable trust that the settlor has the capacity to revoke; or
    2. With the approval of the court.
  2. In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.
  3. Any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.

    (2005, c. 935, § 55-547.05; 2012, c. 614.)

§ 64.2-759. Removal of trustee.

  1. The settlor, a cotrustee, or a beneficiary, or, in the case of a charitable trust, the Attorney General may petition the court to remove a trustee, or a trustee may be removed by the court on its own initiative.
  2. The court may remove a trustee if:
    1. The trustee has committed a serious breach of trust;
    2. Lack of cooperation among cotrustees substantially impairs the administration of the trust;
    3. Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or
    4. There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.
  3. Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under subsection B of § 64.2-792 as may be necessary to protect the trust property or the interests of the beneficiaries. (2005, c. 935, § 55-547.06; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Breach of duty. - Brother was removed as executor because his failure to account for, and pursue, his own debts to the estate, and his failure to carry out the provision of the will that required him to distribute the entire estate to the trust upon Father's death, were sufficient cause for his removal as executor. Menefee v. Menefee, 104 Va. Cir. 160, 2020 Va. Cir. LEXIS 21 (Chesapeake Jan. 23, 2020).

§ 64.2-760. Delivery of property by former trustee.

  1. Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.
  2. A trustee who has resigned or been removed shall proceed expeditiously to deliver the trust property within the trustee's possession to the cotrustee, successor trustee, or other person entitled to it.
  3. Title to all trust property shall be owned and vested in any successor trustee, upon acceptance of the trusteeship, without any conveyance, transfer, or assignment by the prior trustee.

    (2005, c. 935, § 55-547.07; 2012, c. 614.)

§ 64.2-761. Compensation of trustee.

  1. If the terms of a trust do not specify the trustee's compensation, a trustee is entitled to compensation that is reasonable under the circumstances.
  2. If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:
    1. The duties of the trustee are substantially different from those contemplated when the trust was created; or
    2. The compensation specified by the terms of the trust would be unreasonably low or high.

      (2005, c. 935, § 55-547.08; 2012, c. 614.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.2 The Mortgage Transaction. Rendleman.

§ 64.2-762. Reimbursement of expenses.

  1. A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for:
    1. Expenses that were properly incurred in the administration of the trust; and
    2. To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.
  2. An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.

    (2005, c. 935, § 55-547.09; 2012, c. 614.)

Article 8. Duties and Powers of Trustee.

§ 64.2-763. Duty to administer trust and invest.

Upon acceptance of a trusteeship, the trustee shall administer the trust and invest trust assets in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this chapter. In administering, managing and investing trust assets, the trustee shall comply with the provisions of the Uniform Prudent Investor Act (§ 64.2-780 et seq.) and the Uniform Principal and Income Act (§ 64.2-1000 et seq.).

(2005, c. 935, § 55-548.01; 2012, c. 614.)

CASE NOTES

Fiduciary duty. - Chapter 7 debtor's contention that she held only legal title to funds and that her mother was the equitable owner was belied by the fact that she purchased a private annuity for herself with the funds and thus, the Chapter 7 trustee was awarded judgment in his action to avoid a transfer and recover the funds under 11 U.S.C.S. §§ 548(a) and 550(b). If the funds were held in trust for her mother as the debtor contended, she would have had fiduciary duties to her mother under §§ 64.2-763 , 64.2-764 , 64.2-765 , and 64.2-766 . Meiburger v. LNDP&G Ultra Trust (In re Woodworth),, 2013 Bankr. LEXIS 483 (Bankr. E.D. Va. Feb. 6, 2013).

Applied in Jimenez v. Corr, 288 Va. 395 , 764 S.E.2d 115 (2014).

§ 64.2-764. Duty of loyalty.

  1. A trustee shall administer the trust solely in the interests of the beneficiaries.
  2. Subject to the rights of persons dealing with or assisting the trustee as provided in § 64.2-803 , a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or that is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:
    1. The transaction was authorized by the terms of the trust;
    2. The transaction was approved by the court;
    3. The beneficiary did not commence a judicial proceeding within the time allowed by § 64.2-796 ;
    4. The beneficiary consented to the trustee's conduct, ratified the transaction, or released the trustee in compliance with § 64.2-800 ; or
    5. The transaction involves a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee.
  3. A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with:
    1. The trustee's spouse;
    2. The trustee's descendants, siblings, parents, or their spouses;
    3. An agent or attorney of the trustee; or
    4. A corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee's best judgment.
  4. A transaction between a trustee and a beneficiary that does not concern trust property but that occurs during the existence of the trust or while the trustee retains significant influence over the beneficiary and from which the trustee obtains an advantage beyond the normal commercial advantage from such transaction is voidable by the beneficiary unless the trustee establishes that the transaction was fair to the beneficiary.
  5. A transaction not concerning trust property in which the trustee engages in the trustee's individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust.
  6. An investment by a trustee in securities of an investment company, investment trust, mutual fund, or other investment or financial product to which the trustee, or an affiliate of the trustee, sponsors, sells, or provides services in a capacity other than as trustee is not presumed to be affected by a conflict between personal and fiduciary interests if the investment otherwise complies with the Uniform Prudent Investor Act (§ 64.2-780 et seq.) and § 64.2-1506 . The trustee may be compensated by the investment company, investment trust, mutual fund, or other investment or financial product, or by the affiliated entity sponsoring, selling, or providing such service, and such compensation may be in addition to the compensation the trustee is receiving as a trustee if the trustee notifies the persons entitled to receive a copy of the trustee's annual report under § 64.2-775 of the rate and method by which that compensation was determined and of any subsequent changes to such rate or method of compensation.
  7. In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.
  8. This section does not preclude the following transactions, if fair to the beneficiaries:
    1. An agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee;
    2. Payment of reasonable compensation to the trustee;
    3. A transaction between a trust and another trust, decedent's estate, or conservatorship of which the trustee is a fiduciary or in which a beneficiary has an interest;
    4. A deposit of trust money in a regulated financial service institution operated by the trustee; or
    5. An advance by the trustee of money for the protection of the trust.
  9. The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee.

    (2005, c. 935, § 55-548.02; 2012, c. 614.)

CASE NOTES

Use of stipulation of violation in subsequent federal criminal case. - State bar investigation led to a stipulation that defendant had mismanaged client trust accounts in violation of Va. Sup. Ct. R. pt. 6, § II, R. 1.7, subsection A of § 55-548.02 [now this section], and § 55-525.24, as well as an agreement to surrender his law license, an FBI investigation, and criminal charges; in the criminal case, the district court thoughtfully balanced the probative value of the stipulation to revocation of defendant's law license against its potential for prejudice, and the appellate court declined to second-guess that balancing. United States v. Titus, 475 Fed. Appx. 826, 2012 U.S. App. LEXIS 7507 (4th Cir. 2012), cert. denied, 568 U.S. 903, 133 S. Ct. 316, 184 L. Ed. 2d 187 (2012).

Fiduciary duty. - Chapter 7 debtor's contention that she held only legal title to funds and that her mother was the equitable owner was belied by the fact that she purchased a private annuity for herself with the funds and thus, the Chapter 7 trustee was awarded judgment in his action to avoid a transfer and recover the funds under 11 U.S.C.S. §§ 548(a) and 550(b). If the funds were held in trust for her mother as the debtor contended, she would have had fiduciary duties to her mother under §§ 64.2-763 , 64.2-764 , 64.2-765 , and 64.2-766 . Meiburger v. LNDP&G Ultra Trust (In re Woodworth),, 2013 Bankr. LEXIS 483 (Bankr. E.D. Va. Feb. 6, 2013).

CIRCUIT COURT OPINIONS

Beneficiary as trustee. - Lifetime income beneficiary of a spendthrift trust could also serve as the sole trustee of the trust; the trustee had a fiduciary obligation to the remaindermen, and the trustee assumed the burden of proving the fairness of transactions that benefitted himself. Estate of Liebman, 56 Va. Cir. 381, 2001 Va. Cir. LEXIS 475 (Norfolk 2001) (decided under prior law).

Compensation. - Trustee violated subsection A of § 64.2-764 in that the trusts were not administered solely to the interests of the beneficiaries. The amount of compensation taken by the trustee amounted to 38% of the total distributed to the beneficiary, and there was no reason for the trustee to assess fees in the amounts that he did. Higgerson v. Farthing, 96 Va. Cir. 58, 96 Va. Cir. 58, 2017 Va. Cir. LEXIS 118 (Chesapeake June 20, 2017).

Complaint sufficient. - In a case alleging the mismanagement of irrevocable trusts, a complaint sufficiently alleged that a trustee and a de facto trustee breached the duty to administer the trusts in the beneficiaries' favor by taking action to deny them policy proceeds, failed to protect the trust property by allowing the policies to lapse, and failed to provide notice of the impending lapse. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-765. Impartiality.

If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries' respective interests.

(2005, c. 935, § 55-548.03; 2012, c. 614.)

CASE NOTES

Fiduciary duty. - Chapter 7 debtor's contention that she held only legal title to funds and that her mother was the equitable owner was belied by the fact that she purchased a private annuity for herself with the funds and thus, the Chapter 7 trustee was awarded judgment in his action to avoid a transfer and recover the funds under 11 U.S.C.S. §§ 548(a) and 550(b). If the funds were held in trust for her mother as the debtor contended, she would have had fiduciary duties to her mother under §§ 64.2-763 , 64.2-764 , 64.2-765 , and 64.2-766 . Meiburger v. LNDP&G Ultra Trust (In re Woodworth),, 2013 Bankr. LEXIS 483 (Bankr. E.D. Va. Feb. 6, 2013).

§ 64.2-766. Prudent administration.

A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

(2005, c. 935, § 55-548.04; 2012, c. 614.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.23 In What Securities May Invest. Cox.

CASE NOTES

Fiduciary duty. - Chapter 7 debtor's contention that she held only legal title to funds and that her mother was the equitable owner was belied by the fact that she purchased a private annuity for herself with the funds and thus, the Chapter 7 trustee was awarded judgment in his action to avoid a transfer and recover the funds under 11 U.S.C.S. §§ 548(a) and 550(b). If the funds were held in trust for her mother as the debtor contended, she would have had fiduciary duties to her mother under §§ 64.2-763 , 64.2-764 , 64.2-765 , and 64.2-766 . Meiburger v. LNDP&G Ultra Trust (In re Woodworth),, 2013 Bankr. LEXIS 483 (Bankr. E.D. Va. Feb. 6, 2013).

§ 64.2-767. Costs of administration.

In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust property, the purposes of the trust, and the skills of the trustee.

(2005, c. 935, § 55-548.05; 2012, c. 614.)

§ 64.2-768. Trustee's skills.

A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, shall use those special skills or expertise.

(2005, c. 935, § 55-548.06; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Practice and Procedure. - Successor trustee sufficiently pleaded claims against the former and initial trustee of the trust for breach of fiduciary duty because the successor trustee alleged that an insurance policy to fund a trust lapsed due to lack of a premium payment by the former and initial trustee. Tillar v. Stump,, 2013 Va. Cir. LEXIS 155 (Richmond July 3, 2013).

§ 64.2-769. Delegation by trustee.

  1. A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
    1. Selecting an agent;
    2. Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
    3. Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
  2. In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
  3. A trustee who complies with subsection A is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.
  4. By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of the Commonwealth, an agent submits to the jurisdiction of the courts of the Commonwealth.

    (2005, c. 935, § 55-548.07; 2012, c. 614.)

§ 64.2-770.

Repealed by Acts 2020, c. 768, cl. 2.

Editor's note. - Former § 64.2-770 , pertaining to power to direct, derived from Acts 2005, c. 935, § 55-548.08; 2012, cc. 562, 614; 2014, c. 749.

§ 64.2-771. Control and protection of trust property.

A trustee shall take reasonable steps to take control of and protect the trust property.

(2005, c. 935, § 55-548.09; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Practice and procedure. - Successor trustee sufficiently pleaded claims against the former and initial trustee of the trust for breach of fiduciary duty because the successor trustee alleged that an insurance policy to fund a trust lapsed due to lack of a premium payment by the former and initial trustee. Tillar v. Stump,, 2013 Va. Cir. LEXIS 155 (Richmond July 3, 2013).

Complaint sufficient. - In a case alleging the mismanagement of irrevocable trusts, a complaint sufficiently alleged that a trustee and a de facto trustee breached the duty to administer the trusts in the beneficiaries' favor by taking action to deny them policy proceeds, failed to protect the trust property by allowing the policies to lapse, and failed to provide notice of the impending lapse. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-772. Recordkeeping and identification of trust property.

  1. A trustee shall keep adequate records of the administration of the trust.
  2. A trustee shall keep trust property separate from the trustee's own property.
  3. Except as otherwise provided in subsection D, a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.
  4. If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts.
  5. A deed or other instrument purporting to convey or transfer real or personal property to a trust instead of to the trustee or trustees of the trust shall be deemed to convey or transfer such property to the trustee or trustees as fully as if made directly to the trustee or trustees.

    (2005, c. 935, § 55-548.10; 2007, c. 197; 2012, c. 614.)

Law review. - For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

§ 64.2-773. Enforcement and defense of claims.

A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.

(2005, c. 935, § 55-548.11; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Ripeness of suit by beneficiary. - Although the beneficiary of a sub-trust may have had standing to bring a derivative action against the trustee of the primary trust, personally and in the trustee's representative capacity, any claims brought on behalf of the sub-trust were not ripe for a derivative action against the trustee because the beneficiary did not allege that the designated trustee of the sub-trust had improperly refused or neglected to bring an action against a third person. Garcia v. Suda, 94 Va. Cir. 246, 2016 Va. Cir. LEXIS 134 (Fairfax County Sept. 6, 2016).

Trust provision prevailed. - In a case alleging a mismanagement of irrevocable trusts, a demurrer was sustained on a claim that a trustee breached a duty by failing to file causes of action for legal malpractice and conversion because the language of the trust provision at issue made it clear that the trustee retained the option of instituting litigation until it was indemnified against all costs and liabilities, and the complaint failed to allege that the trustee was ever indemnified in such a manner. The trust provision prevailed over statutory law. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-774. Collecting trust property.

A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee, and to redress a breach of trust or duty known to the trustee to have been committed by a former trustee or other fiduciary.

(2005, c. 935, § 55-548.12; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Ripeness of suit by beneficiary. - Although the beneficiary of a sub-trust may have had standing to bring a derivative action against the trustee of the primary trust, personally and in the trustee's representative capacity, any claims brought on behalf of the sub-trust were not ripe for a derivative action against the trustee because the beneficiary did not allege that the designated trustee of the sub-trust had improperly refused or neglected to bring an action against a third person. Garcia v. Suda, 94 Va. Cir. 246, 2016 Va. Cir. LEXIS 134 (Fairfax County Sept. 6, 2016).

§ 64.2-775. Duty to inform and report.

  1. A trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a beneficiary's request for information related to the administration of the trust. A trustee who fails to furnish information to a beneficiary or respond to a request for information regarding the administration of the trust in a good faith belief that to do so would be unreasonable under the circumstances or contrary to the purposes of the settlor shall not be subject to removal or other sanctions therefor.
  2. A trustee:
    1. Upon request of a beneficiary, shall promptly furnish to the beneficiary a copy of the trust instrument;
    2. Within 60 days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee's name, address, and telephone number;
    3. Within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust's existence, of the identity of the settlor or settlors, of the right to request a copy of the trust instrument, and of the right to a trustee's report as provided in subsection C; and
    4. Shall notify the qualified beneficiaries in advance of any change in the method or rate of the trustee's compensation.
  3. A trustee shall send to the distributees or permissible distributees of trust income or principal, and to other qualified or nonqualified beneficiaries who request it, at least annually and at the termination of the trust, a report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee's compensation, a listing of the trust assets and, if feasible, their respective market values. Upon a vacancy in a trusteeship, unless a cotrustee remains in office, a report shall be sent to the qualified beneficiaries by the former trustee. A personal representative, conservator, or guardian may send the qualified beneficiaries a report on behalf of a deceased or incapacitated trustee.
  4. A beneficiary may waive the right to a trustee's report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given.
  5. Subdivisions B 2 and B 3 and subsection C apply only to an irrevocable trust created on or after the effective date of this chapter, and to a revocable trust that becomes irrevocable on or after the effective date of this chapter.

    (2005, c. 935, § 55-548.13; 2007, c. 254; 2012, c. 614.)

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

CIRCUIT COURT OPINIONS

Complaint sufficient. - In a case alleging the mismanagement of irrevocable trusts, a complaint sufficiently alleged that a trustee and a de facto trustee breached the duty to administer the trusts in the beneficiaries' favor by taking action to deny them policy proceeds, failed to protect the trust property by allowing the policies to lapse, and failed to provide notice of the impending lapse. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

§ 64.2-776. Discretionary powers; tax savings.

  1. Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute," "sole," or "uncontrolled," the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
  2. Subject to subsection D, and unless the terms of the trust expressly indicate that a rule in this subsection does not apply:
    1. A person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and
    2. A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.

      For purposes of this subsection, "trustee" includes a person who is deemed to have any power of a trustee, whether because such person has the right to remove or replace any trustee or because a reciprocal trust or power doctrine applies.

  3. A power whose exercise is limited or prohibited by subsection B may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.
  4. Subsection B does not apply to:
    1. A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in § 2056(b)(5) or 2523(e) of the Internal Revenue Code of 1986, as in effect on the effective date of this chapter, or as later amended, was previously allowed;
    2. Any trust during any period that the trust may be revoked or amended by its settlor; or
    3. A trust if contributions to the trust qualify for the annual exclusion under § 2503(c) of the Internal Revenue Code of 1986, as in effect on the effective date of this chapter, or as later amended.

      (2005, c. 935, § 55-548.14; 2012, c. 614; 2013, c. 324.)

The 2013 amendments. - The 2013 amendment by c. 324 added the last paragraph in subsection B.

Law review. - For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

CASE NOTES

Intention of legislature was to broaden scope of charitable trusts. - When the provisions of former § 26-54 are considered, they lend weight to the view that the General Assembly intended by the act to broaden the scope of charitable trusts and prevent their failure even though they are general and indefinite. Under the former section, trusts that depend upon the discretion and personal confidence of the trustee in their exercise, where he refuses or fails to act, may be enforced by a substituted trustee who is given the power to exercise the discretion and personal confidence that was vested in the original trustee. Moore v. Downham, 166 Va. 77 , 184 S.E. 199 (1936) (decided under former § 26-54) See Roller v. Shaver, 178 Va. 467 , 17 S.E.2d 419 (1941) (decided under prior law).

CIRCUIT COURT OPINIONS

Appointment of successor trustee. - Where the three original testamentary trustees had discretionary powers, the trust could be implemented in accordance with its terms by the surviving trustees pursuant to former § 26-54; the court, therefore, declined to appoint a successor trustee to replace a deceased trustee under § 26-48. In re Trust of Sams, 59 Va. Cir. 322, 2002 Va. Cir. LEXIS 376 (Richmond 2002) (decided under prior law).

Practice and procedure. - Successor trustee sufficiently pleaded claims against the former and initial trustee of the trust for breach of fiduciary duty because the successor trustee alleged that an insurance policy to fund a trust lapsed due to lack of a premium payment by the former and initial trustee. Tillar v. Stump,, 2013 Va. Cir. LEXIS 155 (Richmond July 3, 2013).

§ 64.2-777. General powers of trustee.

  1. A trustee, without authorization by the court, may exercise:
    1. Powers conferred by the terms of the trust; and
    2. Except as limited by the terms of the trust:
      1. All powers over the trust property that an unmarried competent owner has over individually owned property;
      2. Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and
      3. Any other powers conferred by this chapter.
  2. The exercise of a power is subject to the fiduciary duties prescribed by this article.
  3. Any reference in a trust instrument incorporating the powers authorized under § 64.2-105 shall not be construed to limit powers a trustee may exercise pursuant to this section, unless the settlor expressly states in the trust instrument that such reference should be so construed. (2005, c. 935, § 55-548.15; 2012, c. 614.)

CASE NOTES

Disposition of stock through trust. - In a dispute over the disposition of stock in a family held business, an argument that a trust did not constitute an immediate family member was rejected; the inter vivos trust was simply a method of transferring the stock to immediate family members, and disposing of property by trust was merely a way of conveying it to both the beneficiaries and the trustee. However, because the owner's method of bequeathing her shares by way of the trust did not satisfy the terms of the shareholders' agreement, it did not exempt those shares from a mandatory purchase scheme. Jimenez v. Corr, 288 Va. 395 , 764 S.E.2d 115 (2014).

§ 64.2-778. Specific powers of trustee.

  1. Without limiting the authority conferred by § 64.2-777 , a trustee may:
    1. Collect trust property and accept or reject additions to the trust property from a settlor or any other person;
    2. Acquire or sell property, for cash or on credit, at public or private sale;
    3. Exchange, partition, or otherwise change the character of trust property;
    4. Deposit trust money in an account in a regulated financial service institution;
    5. Borrow money, with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust;
    6. With respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital;
    7. With respect to stocks or other securities, exercise the rights of an absolute owner, including the right to:
      1. Vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement;
      2. Hold a security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery;
      3. Pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and
      4. Deposit the securities with a depository or other regulated financial service institution;
    8. With respect to an interest in real property, construct, or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plats and adjust boundaries;
    9. Enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust;
    10. Grant an option involving a sale, lease, or other disposition of trust property or acquire an option for the acquisition of property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired;
    11. Insure the property of the trust against damage or loss and insure the trustee, the trustee's agents, and beneficiaries against liability arising from the administration of the trust;
    12. Abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration;
    13. With respect to possible liability for violation of environmental law:
      1. Inspect or investigate property the trustee holds or has been asked to hold, or property owned or operated by an organization in which the trustee holds or has been asked to hold an interest, for the purpose of determining the application of environmental law with respect to the property;
      2. Take action to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held directly or indirectly by the trustee, whether taken before or after the assertion of a claim or the initiation of governmental enforcement;
      3. Decline to accept property into trust or disclaim any power with respect to property that is or may be burdened with liability for violation of environmental law;
      4. Compromise claims against the trust that may be asserted for an alleged violation of environmental law; and
      5. Pay the expense of any inspection, review, abatement, or remedial action to comply with environmental law;
    14. Pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust;
    15. Pay taxes, assessments, compensation of the trustee and of employees and agents of the trust, and other expenses incurred in the administration of the trust;
    16. Exercise elections with respect to federal, state, and local taxes;
    17. Select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds;
    18. Make loans out of trust property, including loans to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances, and the trustee has a lien on future distributions for repayment of those loans;
    19. Pledge trust property to guarantee loans made by others to the beneficiary;
    20. Appoint a trustee to act in another jurisdiction with respect to trust property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish security, and remove any trustee so appointed;
    21. Pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary or applying it for the beneficiary's benefit, or by:
      1. Paying it to the beneficiary's conservator or, if the beneficiary does not have a conservator, the beneficiary's guardian;
      2. Paying it to the beneficiary's custodian under the Uniform Transfers to Minors Act (§ 64.2-1900 et seq.) or custodial trustee under the Uniform Custodial Trust Act (§ 64.2-900 et seq.), and, for that purpose, creating a custodianship or custodial trust;
      3. If the trustee does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of the beneficiary, to be expended on the beneficiary's behalf; or
      4. Managing it as a separate fund on the beneficiary's behalf, subject to the beneficiary's continuing right to withdraw the distribution;
    22. On distribution of trust property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property for those purposes, and adjust for resulting differences in valuation;
    23. Resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution;
    24. Prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee's duties;
    25. Sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the trustee's powers; and
    26. On termination of the trust, exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it.
  2. Any reference in a trust instrument incorporating the powers authorized under § 64.2-105 shall not be construed to limit powers a trustee may exercise pursuant to this section, unless the settlor expressly states in the trust instrument that such reference should be so construed. (2005, c. 935, § 55-548.16; 2012, c. 614.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.4 The Sale. Rendleman.

Virginia Forms (Matthew Bender). No. 15-250. Fiduciary Powers; No. 15-301. Revocable Inter Vivos Trust Agreement, et seq.; No. 16-6030. Certificate of Trust.

CASE NOTES

Disposition of stock through trust. - In a dispute over the disposition of stock in a family held business, an argument that a trust did not constitute an immediate family member was rejected; the inter vivos trust was simply a method of transferring the stock to immediate family members, and disposing of property by trust was merely a way of conveying it to both the beneficiaries and the trustee. However, because the owner's method of bequeathing her shares by way of the trust did not satisfy the terms of the shareholders' agreement, it did not exempt those shares from a mandatory purchase scheme. Jimenez v. Corr, 288 Va. 395 , 764 S.E.2d 115 (2014).

CIRCUIT COURT OPINIONS

Arbitration. - Former trustee was not required to submit the trustee's claims to arbitration because none of the claims were subject to arbitration, pursuant to the Virginia Uniform Trust Code, § 64.2-700 et seq., as the arbitration clause in the trust agreement, by the use of the words "disputes arising hereunder," narrowed the scope of arbitrable claims to those which required interpretation or enforcement of the trust agreement, but the trustee's claims did not require interpretation or enforcement of the trust agreement. Kelly v. Giuliano,, 2020 Va. Cir. LEXIS 204 (Fairfax County Sept. 21, 2020).

§ 64.2-778.1.

Repealed by Acts 2017, c. 592, cl. 2.

Cross references. - For current provisions regarding a trustee's ability to distribute assets into a second trust, see the Uniform Trust Decanting Act, Article 8.1 ( § 64.2-779.1 et seq.) of this chapter.

Editor's note. - Former § 64.2-778.1 , authorizing trustee's special power to appoint to a second trust, derived from 2012, c. 559, § 55-548.16:1; 2012, 614; 2014, c. 378.

§ 64.2-779. Distribution upon termination.

  1. Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within 30 days after the proposal was sent but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection.
  2. Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.
  3. A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent:
    1. It was induced by improper conduct of the trustee; or
    2. The beneficiary, at the time of the release, did not know of the beneficiary's rights or of the material facts relating to the breach.

      (2005, c. 935, § 55-548.17; 2012, c. 614.)

Article 8.1. Uniform Trust Decanting Act.

§ 64.2-779.1. Scope.

  1. Except as otherwise provided in subsections B and C, this article applies to an express trust that is irrevocable or revocable by the settlor only with the consent of the trustee or a person holding an adverse interest.
  2. This article does not apply to a trust held solely for charitable purposes.
  3. Subject to § 64.2-779.12 , a trust instrument may restrict or prohibit exercise of the decanting power.
  4. This article does not limit the power of a trustee, powerholder, or other person to distribute or appoint property in further trust or to modify a trust under the trust instrument, a law of the Commonwealth other than this article, common law, a court order, or a nonjudicial settlement agreement.
  5. This article does not affect the ability of a settlor to provide in a trust instrument for the distribution of the trust property or appointment in further trust of the trust property or for modification of the trust instrument.

    (2017, c. 592.)

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-779.2. Fiduciary duty.

  1. In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust.
  2. This article does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the applicability of this article.
  3. Except as otherwise provided in a first-trust instrument, for purposes of this article and § 64.2-763 and subsection A of § 64.2-764 , the terms of the first trust are deemed to include the decanting power. (2017, c. 592.)

§ 64.2-779.3. Application; governing law.

This article applies to a trust created before, on, or after July 1, 2017, that:

  1. Has its principal place of administration in the Commonwealth, including a trust whose principal place of administration has been changed to the Commonwealth; or
  2. Provides by its trust instrument that it is governed by the law of the Commonwealth or is governed by the law of the Commonwealth for the purpose of:
    1. Administration, including administration of a trust whose governing law for purposes of administration has been changed to the law of the Commonwealth;
    2. Construction of terms of the trust; or
    3. Determining the meaning or effect of terms of the trust.

      (2017, c. 592.)

§ 64.2-779.4. Reasonable reliance.

A trustee or other person that reasonably relies on the validity of a distribution of part or all of the property of a trust to another trust, or a modification of a trust, under this article, a law of the Commonwealth other than this article, or the law of another jurisdiction is not liable to any person for any action or failure to act as a result of the reliance.

(2017, c. 592.)

§ 64.2-779.5. Notice; exercise of decanting power.

  1. In this section, a notice period begins on the day notice is given under subsection C and ends 59 days after the day notice is given.
  2. Except as otherwise provided in this article, an authorized fiduciary may exercise the decanting power without the consent of any person and without court approval.
  3. Except as otherwise provided in subsection F, an authorized fiduciary shall give notice in a record of the intended exercise of the decanting power not later than 60 days before the exercise to (i) each settlor of the first trust, if living or then in existence; (ii) each qualified beneficiary of the first trust; (iii) each holder of a presently exercisable power of appointment over any part or all of the first trust; (iv) each person that currently has the right to remove or replace the authorized fiduciary; (v) each other fiduciary of the first trust; (vi) each fiduciary of the second trust; (vii) each person acting as an advisor or protector of the first trust; (viii) each person holding an adverse interest who has the power to consent to the revocation of the first trust; and (ix) the Attorney General, if subsection B of § 64.2-779.11 applies.
  4. An authorized fiduciary is not required to give notice under subsection C to a person that is not known to the fiduciary or is known to the fiduciary but cannot be located by the fiduciary after reasonable diligence.
  5. A notice under subsection C shall (i) specify the manner in which the authorized fiduciary intends to exercise the decanting power, (ii) specify the proposed effective date for exercise of the power, (iii) include a copy of the first-trust instrument, and (iv) include a copy of all second-trust instruments.
  6. The decanting power may be exercised before expiration of the notice period under subsection A if all persons entitled to receive notice waive the period in a signed record.
  7. The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under § 64.2-779.6 asserting that (i) an attempted exercise of the decanting power is ineffective because it did not comply with this article or was an abuse of discretion or breach of fiduciary duty or (ii) § 64.2-779.19 applies to the exercise of the decanting power.
  8. An exercise of the decanting power is not ineffective because of the failure to give notice to one or more persons under subsection C if the authorized fiduciary acted with reasonable care to comply with subsection C.
  9. The decanting power under this article may be exercised by a majority of the authorized fiduciaries. If no trustee is an authorized fiduciary or upon request of any of the trustees, the court may appoint a special fiduciary pursuant to § 64.2-779.6 with authority to exercise the decanting power under this article. (2017, c. 592; 2018, c. 476.)

Editor's note. - Acts 2018, c. 476, cl. 2 provides: "That the provisions of this act apply to any trust created before, on, or after the effective date of this act [March 23, 2018]."

Acts 2018, c. 476, cl. 3 provides: "That no provision of this act shall affect any valid exercise of decanting power under a trust by an authorized fiduciary prior to the effective date of this act [March 23, 2018], and such exercise shall be governed by the laws in force at the time the decanting power was exercised by the authorized fiduciary."

The 2018 amendments. - The 2018 amendment by c. 476, effective March 23, 2018, added subsection I. For applicability, see Editor's note.

Law review. - For article, "Wills, Trusts, and Estates," see 53 U. Rich. L. Rev. 179 (2018).

§ 64.2-779.6. Court involvement.

  1. On application of an authorized fiduciary, a person entitled to notice under subsection C of § 64.2-779.5 , a beneficiary, or with respect to a charitable interest the Attorney General or other person that has standing to enforce the charitable interest, the court may (i) provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under this article and consistent with the fiduciary duties of the authorized fiduciary; (ii) appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under this article and to exercise the decanting power; (iii) approve an exercise of the decanting power; (iv) determine that a proposed or attempted exercise of the decanting power is ineffective because (a) after applying § 64.2-779.19 , the proposed or attempted exercise does not or did not comply with this article or (b) the proposed or attempted exercise would be or was an abuse of the fiduciary's discretion or a breach of fiduciary duty; (v) determine the extent to which § 64.2-779.19 applies to a prior exercise of the decanting power; (vi) provide instructions to the trustee regarding the application of § 64.2-779.19 to a prior exercise of the decanting power; or (vii) order other relief to carry out the purposes of this article.
  2. On application of an authorized fiduciary, the court may approve (i) an increase in the fiduciary's compensation under § 64.2-779.13 or (ii) a modification under § 64.2-779.15 of a provision granting a person the right to remove or replace the fiduciary. (2017, c. 592.)

§ 64.2-779.7. Formalities.

An exercise of the decanting power shall be made in a record signed by an authorized fiduciary. The signed record shall, directly or by reference to the notice required by § 64.2-779.5 , identify the first trust and the second trust or trusts and state the property of the first trust being distributed to or held subject to the terms of each second trust and the property, if any, that remains in the first trust.

(2017, c. 592.)

§ 64.2-779.8. Decanting power under expanded distributive discretion.

  1. As used in this section:

    "Noncontingent right" means a right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. "Noncontingent right" does not include a right held by a beneficiary if any person has discretion to distribute property subject to the right to any person other than the beneficiary or the beneficiary's estate.

    "Presumptive remainder beneficiary" means a qualified beneficiary other than a current beneficiary.

    "Successor beneficiary" means a beneficiary that is not a qualified beneficiary on the date the beneficiary's qualification is determined. "Successor beneficiary" does not include a person that is a beneficiary only because the person holds a nongeneral power of appointment.

    "Vested interest" means:

    1. A right to a mandatory distribution that is a noncontingent right as of the date of the exercise of the decanting power;
    2. A current and noncontingent right, annually or more frequently, to a mandatory distribution of income, a specified dollar amount, or a percentage of value of some or all of the trust property;
    3. A current and noncontingent right, annually or more frequently, to withdraw income, a specified dollar amount, or a percentage of value of some or all of the trust property;
    4. A presently exercisable general power of appointment; or
    5. A right to receive an ascertainable part of the trust property on the trust's termination that is not subject to the exercise of discretion or to the occurrence of a specified event that is not certain to occur.
  2. Subject to subsection C and § 64.2-779.11 , an authorized fiduciary that has expanded distributive discretion over the income or principal of a first trust for the benefit of one or more current beneficiaries may exercise the decanting power over the income or principal of the first trust.
  3. Subject to § 64.2-779.10 , in an exercise of the decanting power under this section, a second trust may not:
    1. Include as a current beneficiary a person that is not a current beneficiary of the first trust, except as otherwise provided in subsection D;
    2. Include as a presumptive remainder beneficiary or successor beneficiary a person that is not a current beneficiary, presumptive remainder beneficiary, or successor beneficiary of the first trust, except as otherwise provided in subsection D; or
    3. Reduce or eliminate a vested interest.
  4. Subject to subdivision C 3 and § 64.2-779.11 , in an exercise of the decanting power under this section, a second trust may be a trust created or administered under the law of any jurisdiction and may:
    1. Retain a power of appointment granted in the first trust;
    2. Omit a power of appointment granted in the first trust, other than a presently exercisable general power of appointment;
    3. Create or modify a power of appointment if the powerholder is a current beneficiary of the first trust and the authorized fiduciary has expanded distributive discretion to distribute principal to the beneficiary; and
    4. Create or modify a power of appointment if the powerholder is a presumptive remainder beneficiary or successor beneficiary of the first trust, but the exercise of the power may take effect only after the powerholder becomes, or would have become if then living, a current beneficiary.
  5. A power of appointment described in subdivisions D 1 through 4 may be general or nongeneral. The class of permissible appointees in favor of which the power may be exercised may be broader than or different from the beneficiaries of the first trust.
  6. If an authorized fiduciary has expanded distributive discretion over part but not all of the income or principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the income or principal over which the authorized fiduciary has expanded distributive discretion.

    (2017, c. 592.)

§ 64.2-779.9. Decanting power under limited distributive discretion.

  1. As used in this section, "limited distributive discretion" means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard.
  2. An authorized fiduciary that has limited distributive discretion over the income or principal of the first trust for benefit of one or more current beneficiaries may exercise the decanting power over the income or principal of the first trust.
  3. Under this section and subject to § 64.2-779.11 , a second trust may be created or administered under the law of any jurisdiction. Under this section, the second trusts, in the aggregate, must grant each beneficiary of the first trust beneficial interests that are substantially similar to the beneficial interests of the beneficiary in the first trust. A second trust that defers or postpones a contingent right of a beneficiary to receive an outright distribution of assets upon the attainment of a certain age or upon the occurrence of a specific event (a "deferred distribution") shall be substantially similar to the first trust if the second trust provides that (i) during the lifetime of the beneficiary, no portion of the income or principal attributable to the deferred distribution may be distributed to, or for the benefit of, any person other than the beneficiary and (ii) the beneficiary shall have a testamentary general power of appointment exercisable in favor of the beneficiary's estate over the deferred distribution or the deferred distribution shall be payable to the beneficiary's estate if the second trust does not terminate during the beneficiary's lifetime.
  4. A power to make a distribution under a second trust for the benefit of a beneficiary who is an individual is substantially similar to a power under the first trust to make a distribution directly to the beneficiary. A distribution is for the benefit of a beneficiary if:
    1. The distribution is applied for the benefit of the beneficiary;
    2. The beneficiary is under a legal disability or the trustee reasonably believes the beneficiary is incapacitated, and the distribution is made as permitted under this chapter; or
    3. The distribution is made as permitted under the terms of the first-trust instrument and the second-trust instrument for the benefit of the beneficiary.
  5. If an authorized fiduciary has limited distributive discretion over part but not all of the income or principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the income or principal over which the authorized fiduciary has limited distributive discretion.

    (2017, c. 592.)

§ 64.2-779.10. Trust for beneficiary with disability.

  1. As used in this section:

    "Beneficiary with a disability" means a beneficiary of a first trust who the special-needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been determined to be an incapacitated person.

    "Governmental benefits" means financial aid or services from a state, federal, or other public agency.

    "Special-needs fiduciary" means, with respect to a trust that has a beneficiary with a disability:

    1. A trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the principal of a first trust to one or more current beneficiaries;
    2. If no trustee or fiduciary has discretion under subdivision 1, a trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the income of the first trust to one or more current beneficiaries; or
    3. If no trustee or fiduciary has discretion under subdivisions 1 and 2, a trustee or other fiduciary, other than a settlor, that is required to distribute part or all of the income or principal of the first trust to one or more current beneficiaries.

      "Special-needs trust" means a trust the trustee believes would not be considered a resource for purposes of determining whether a beneficiary with a disability is eligible for governmental benefits.

  2. A special-needs fiduciary may exercise the decanting power under § 64.2-779.8 over the income or principal of a first trust, including a first trust under which the fiduciary has only limited distributive discretion as defined in subsection A of § 64.2-779.9 , as if the fiduciary had authority to distribute income or principal to a beneficiary with a disability subject to expanded distributive discretion if:
    1. A second trust is a special-needs trust that benefits the beneficiary with a disability; and
    2. The special-needs fiduciary determines that exercise of the decanting power will further the purposes of the first trust.
  3. In an exercise of the decanting power under this section, the following rules apply:
    1. Notwithstanding subdivision C 2 of § 64.2-779.8 , the interest in the second trust of a beneficiary with a disability may:
      1. Be a pooled trust as defined by Medicaid law for the benefit of the beneficiary with a disability under 42 U.S.C. § 1396p(d)(4)(C); or
      2. Contain payback provisions complying with reimbursement requirements of Medicaid law under 42 U.S.C. § 1396p(d)(4)(A).
    2. Subdivision C 3 of § 64.2-779.8 does not apply to the interests of the beneficiary with a disability.
    3. Except as affected by any change to the interests of the beneficiary with a disability, the second trust, or if there are two or more second trusts, the second trusts in the aggregate, must grant each other beneficiary of the first trust beneficial interests in the second trusts that are substantially similar to the beneficiary's beneficial interests in the first trust. (2017, c. 592.)

§ 64.2-779.11. Protection of charitable interest.

  1. As used in this section:

    "Determinable charitable interest" means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event, or after the passage of a specified time and that is unconditional or will be held solely for charitable purposes.

    "Unconditional" means not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the United States Internal Revenue Code of 1986 on the date of the distribution, if the charitable organization meets the requirement on the date of determination.

  2. If a first trust contains a determinable charitable interest, the Attorney General has the rights of a qualified beneficiary and may represent and bind the charitable interest.
  3. If a first trust contains a charitable interest, the second trust or trusts may not:
    1. Diminish the charitable interest;
    2. Diminish the interest of an identified charitable organization that holds the charitable interest;
    3. Alter any charitable purpose stated in the first-trust instrument; or
    4. Alter any condition or restriction related to the charitable interest.
  4. If there are two or more second trusts, the second trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of subsection C.
  5. If a first trust contains a determinable charitable interest, the second trust or trusts that include a charitable interest pursuant to subsection C must be administered under the law of the Commonwealth unless:
    1. The Attorney General, after receiving notice under § 64.2-779.5 , fails to object in a signed record delivered to the authorized fiduciary within the notice period;
    2. The Attorney General consents in a signed record to the second trust or trusts being administered under the law of another jurisdiction; or
    3. The court approves the exercise of the decanting power.
  6. This article does not limit the powers and duties of the Attorney General under law of the Commonwealth other than this article.

    (2017, c. 592.)

§ 64.2-779.12. Trust limitation on decanting.

  1. An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of:
    1. The decanting power; or
    2. A power granted by state law to the fiduciary to distribute part or all of the income or principal of the trust to another trust or to modify the trust.
  2. Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of:
    1. The decanting power; or
    2. A power granted by state law to a fiduciary to distribute part or all of the income or principal of the trust to another trust or to modify the trust.
  3. A general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiary's interest does not preclude exercise of the decanting power.
  4. Subject to subsections A and B, an authorized fiduciary may exercise the decanting power under this article even if the first-trust instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part or all of the income or principal of the first trust to another trust.
  5. If a first-trust instrument contains an express prohibition described in subsection A or an express restriction described in subsection B, the provision must be included in the second-trust instrument.

    (2017, c. 592.)

§ 64.2-779.13. Change in compensation.

  1. If a first-trust instrument specifies an authorized fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the fiduciary's compensation above the specified compensation unless:
    1. All qualified beneficiaries of the second trust consent to the increase in a signed record; or
    2. The increase is approved by the court.
  2. If a first-trust instrument does not specify an authorized fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the fiduciary's compensation above the compensation permitted by this chapter unless:
    1. All qualified beneficiaries of the second trust consent to the increase in a signed record; or
    2. The increase is approved by the court.
  3. A change in an authorized fiduciary's compensation that is incidental to other changes made by the exercise of the decanting power is not an increase in the fiduciary's compensation for purposes of subsections A and B.

    (2017, c. 592.)

§ 64.2-779.14. Relief from liability and indemnification.

  1. Except as otherwise provided in this section, a second-trust instrument may not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first-trust instrument.
  2. A second-trust instrument may provide for indemnification of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity under the first trust for any liability or claim that would have been payable from the first trust if the decanting power had not been exercised.
  3. A second-trust instrument may not reduce fiduciary liability in the aggregate.
  4. Subject to subsection C, a second-trust instrument may divide and reallocate fiduciary powers among fiduciaries, including one or more trustees, distribution advisors, investment advisors, trust protectors, or other persons, and relieve a fiduciary from liability for an act or failure to act of another fiduciary as permitted by law of the Commonwealth other than this article.

    (2017, c. 592.)

§ 64.2-779.15. Removal or replacement of authorized fiduciary.

An authorized fiduciary may not exercise the decanting power to modify a provision in a first-trust instrument granting another person power to remove or replace the fiduciary unless:

  1. The person holding the power consents to the modification in a signed record and the modification applies only to the person;
  2. The person holding the power and the qualified beneficiaries of the second trust consent to the modification in a signed record and the modification grants a substantially similar power to another person; or
  3. The court approves the modification and the modification grants a substantially similar power to another person.

    (2017, c. 592.)

§ 64.2-779.16. Tax-related provisions.

  1. As used in this section:

    "Grantor trust" means a trust as to which a settlor of a first trust is considered the owner under §§ 671 through 677 of the Internal Revenue Code or § 679 of the Internal Revenue Code.

    "Internal Revenue Code" means the United States Internal Revenue Code of 1986.

    "Nongrantor trust" means a trust that is not a grantor trust.

    "Qualified benefits property" means property subject to the minimum distribution requirements of § 401(a)(9) of the Internal Revenue Code and any applicable regulations, or to any similar requirements that refer to § 401(a)(9) of the Internal Revenue Code or the regulations.

  2. An exercise of the decanting power is subject to the following limitations:
    1. If a first trust contains property that qualified, or would have qualified but for provisions of this article other than this section, for a marital deduction for purposes of the gift or estate tax under the Internal Revenue Code or a state gift, estate, or inheritance tax, the second-trust instrument must not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.
    2. If the first trust contains property that qualified, or would have qualified but for provisions of this article other than this section, for a charitable deduction for purposes of the income, gift, or estate tax under the Internal Revenue Code or a state income, gift, estate, or inheritance tax, the second-trust instrument must not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.
    3. If the first trust contains property that qualified, or would have qualified but for provisions of this article other than this section, for the exclusion from the gift tax described in § 2503(b) of the Internal Revenue Code, the second-trust instrument must not include or omit a term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under § 2503(b) of the Internal Revenue Code. If the first trust contains property that qualified, or would have qualified but for provisions of this article other than this section, for the exclusion from the gift tax described in § 2503(b) of the Internal Revenue Code by application of § 2503(c) of the Internal Revenue Code, the second-trust instrument must not include or omit a term that, if included or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under § 2503(c) of the Internal Revenue Code.
    4. If the property of the first trust includes shares of stock in an S corporation, as defined in § 1361 of the Internal Revenue Code, and the first trust is, or but for provisions of this article other than this section would be, a permitted shareholder under any provision of § 1361 of the Internal Revenue Code, an authorized fiduciary may exercise the power with respect to part or all of the S-corporation stock only if any second trust receiving the stock is a permitted shareholder under § 1361(c)(2) of the Internal Revenue Code. If the property of the first trust includes shares of stock in an S corporation and the first trust is, or but for provisions of this article other than this section would be, a qualified subchapter-S trust within the meaning of § 1361(d) of the Internal Revenue Code, the second-trust instrument must not include or omit a term that prevents the second trust from qualifying as a qualified subchapter-S trust.
    5. If the first trust contains property that qualified, or would have qualified but for provisions of this article other than this section, for a zero inclusion ratio for purposes of the generation-skipping transfer tax under § 2642(c) of the Internal Revenue Code the second-trust instrument must not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented the transfer to the first trust from qualifying for a zero inclusion ratio under § 2642(c) of the Internal Revenue Code.
    6. If the first trust is directly or indirectly the beneficiary of qualified benefits property, the second-trust instrument may not include or omit any term that, if included in or omitted from the first-trust instrument, would have increased the minimum distributions required with respect to the qualified benefits property under § 401(a)(9) of the Internal Revenue Code and any applicable regulations, or any similar requirements that refer to § 401(a)(9) of the Internal Revenue Code or the regulations. If an attempted exercise of the decanting power violates the preceding sentence, the trustee is deemed to have held the qualified benefits property and any reinvested distributions of the property as a separate share from the date of the exercise of the power, and § 64.2-779.19 applies to the separate share.
    7. If the first trust qualifies as a grantor trust because of the application of § 672(f)(2)(A) of the Internal Revenue Code, the second trust may not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented the first trust from qualifying under § 672(f)(2)(A) of the Internal Revenue Code.
    8. In this subdivision, "tax benefit" means a federal or state tax deduction, exemption, exclusion, or other benefit not otherwise listed in this section, except for a benefit arising from being a grantor trust. Subject to subdivision 9, a second-trust instrument may not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented qualification for a tax benefit if:
      1. The first-trust instrument expressly indicates an intent to qualify for the benefit or the first-trust instrument clearly is designed to enable the first trust to qualify for the benefit; and
      2. The transfer of property held by the first trust or the first trust qualified, or would have qualified but for provisions of this article other than this section, would have qualified for the tax benefit.
    9. Subject to subdivision 4:
      1. Except as otherwise provided in subdivision 7, the second trust may be a nongrantor trust, even if the first trust is a grantor trust; and
      2. Except as otherwise provided in subdivision 10, the second trust may be a grantor trust, even if the first trust is a nongrantor trust.
    10. An authorized fiduciary may not exercise the decanting power if a settlor objects in a signed record delivered to the fiduciary within the notice period and:
      1. The first trust and a second trust are both grantor trusts, in whole or in part, the first-trust instrument grants the settlor or another person the power to cause the first trust to cease to be a grantor trust, and the second-trust instrument does not grant an equivalent power to the settlor or other person; or
      2. The first trust is a nongrantor trust and a second trust is a grantor trust, in whole or in part, with respect to the settlor, unless:
        1. The settlor has the power at all times to cause the second trust to cease to be a grantor trust; or
        2. The first-trust instrument contains a provision granting the settlor or another person a power that would cause the first trust to cease to be a grantor trust and the second-trust instrument contains the same provision.
  3. If an authorized fiduciary that has limited distributive discretion over the income or principal of a first trust reasonably determines that the overall income, estate, gift, and generation-skipping tax consequences of the first trust may be reduced by either (i) granting a general power of appointment to a beneficiary of the first trust or (ii) eliminating a general power of appointment granted to a beneficiary of the first trust, the fiduciary may exercise the decanting power over all or any portion of the principal of the trust to grant or eliminate such a general power of appointment and shall, in addition, have the powers found in subsection D of § 64.2-779.8 as if the fiduciary had expanded distributive discretion, subject to the following provisions:
    1. In the case of the grant of a general power of appointment, the class of permissible appointees contained in the second trust shall be limited to the creditors of the powerholder or the creditors of the powerholder's estate.
    2. In the case of the elimination of a general power of appointment, the class of permissible appointees in the second trust shall exclude the powerholder, the powerholder's creditors, the powerholder's estate, and the creditors of the powerholder's estate, but shall otherwise be identical to the class of appointees permitted in the first trust. (2017, c. 592.)

§ 64.2-779.17. Duration of second trust.

  1. Subject to subsection B, a second trust may have a duration that is the same as or different from the duration of the first trust.
  2. To the extent that property of a second trust is attributable to property of the first trust, the property of the second trust is subject to any rules governing maximum perpetuity, accumulation, or suspension of the power of alienation that apply to property of the first trust.

    (2017, c. 592.)

§ 64.2-779.18. Need to distribute not required.

An authorized fiduciary may exercise the decanting power whether or not under the first trust's discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of income or principal at the time of the exercise.

(2017, c. 592.)

§ 64.2-779.19. Savings provision.

  1. If exercise of the decanting power would be effective under this article except that the second-trust instrument in part does not comply with this article, the exercise of the power is effective and the following rules apply with respect to the income or principal of the second trust attributable to the exercise of the power:
    1. A provision in the second-trust instrument which is not permitted under this article is void to the extent necessary to comply with this article.
    2. A provision required by this article to be in the second-trust instrument which is not contained in the instrument is deemed to be included in the instrument to the extent necessary to comply with this article.
  2. If a trustee or other fiduciary of a second trust determines that subsection A applies to a prior exercise of the decanting power, the fiduciary shall take corrective action consistent with the fiduciary's duties.

    (2017, c. 592.)

§ 64.2-779.20. Trust for care of animal.

  1. As used in this section:

    "Animal trust" means a trust or an interest in a trust created to provide for the care of one or more animals.

    "Protector" means a person appointed in an animal trust to enforce the trust on behalf of the animal or, if no such person is appointed in the trust, a person appointed by the court for that purpose.

  2. The decanting power may be exercised over an animal trust that has a protector to the extent that the trust could be decanted under this article if each animal that benefits from the trust were an individual, if the protector consents in a signed record to the exercise of the power.
  3. A protector for an animal has the rights under this article of a qualified beneficiary.
  4. Notwithstanding any other provision of this article, if a first trust is an animal trust, in an exercise of the decanting power, the second trust must provide that trust property may be applied only to its intended purpose for the period the first trust benefited the animal.

    (2017, c. 592.)

§ 64.2-779.21. Terms of second trust.

A reference in this chapter to a trust instrument or terms of the trust includes a second-trust instrument and the terms of the second trust.

(2017, c. 592.)

§ 64.2-779.22. Settlor.

  1. For purposes of law of the Commonwealth other than this article and subject to subsection B, a settlor of a first trust is deemed to be the settlor of the second trust with respect to the portion of the income or principal of the first trust subject to the exercise of the decanting power.
  2. In determining settlor intent with respect to a second trust, the intent of a settlor of the first trust, a settlor of the second trust, and the authorized fiduciary may be considered.

    (2017, c. 592.)

§ 64.2-779.23. Later-discovered property.

  1. Except as otherwise provided in subsection C, if exercise of the decanting power was intended to distribute all the income or principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust and property paid to or acquired by the first trust after the exercise of the power is part of the trust estate of the second trust or trusts.
  2. Except as otherwise provided in subsection C, if exercise of the decanting power was intended to distribute less than all the income or principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power remains part of the trust estate of the first trust.
  3. An authorized fiduciary may provide in an exercise of the decanting power or by the terms of a second trust for disposition of later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power.

    (2017, c. 592.)

§ 64.2-779.24. Obligations.

A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the second trust after exercise of the decanting power.

(2017, c. 592.)

§ 64.2-779.25. Accountings.

If accounts for the first trust are filed with the commissioner of accounts, the accounts for the second trust shall be filed with the commissioner of accounts unless the court orders otherwise.

(2017, c. 592.)

Article 8.2. Uniform Directed Trust Act.

§ 64.2-779.26. Definitions.

As used in this article, unless the context requires a different meaning:

"Breach of trust" includes a violation by a trust director or trustee of a duty imposed on that trust director or trustee by the terms of the trust, this article, or law of the Commonwealth other than this article pertaining to trusts.

"Directed trust" means a trust for which the terms of the trust grant a power of direction.

(2020, c. 768.)

§ 64.2-779.27. Application.

  1. Except as otherwise provided in subsection B and § 64.2-779.28 , this article applies to a trust that has its principal place of administration in the Commonwealth and that:
    1. Is created on or after July 1, 2020;
    2. Is amended by a settlor on or after July 1, 2020;
    3. Is amended or modified on or after July 1, 2020, by a nonjudicial settlement agreement under § 64.2-709 , by a second-trust instrument under the Uniform Trust Decanting Act (§ 64.2-779.1 et seq.), or by the court; or
    4. In the case of any trust not described in subdivision A 1, A 2, or A 3, was made subject to subsection E of § 64.2-770 , as it existed prior to the effective date of this article, by specific reference in the trust instrument.
  2. In the case of a trust described in subdivision A 2 or A 3, this article applies only to a decision or action on or after the date of the first such amendment or modification.
  3. Any trust, decision, or action to which this article does not apply shall be governed by the following rules:
    1. If the terms of a trust confer upon a person other than the settlor of a revocable trust power to direct certain actions of the trustee, the trustee shall act in accordance with an exercise of the power unless the attempted exercise is manifestly contrary to the terms of the trust or the trustee knows the attempted exercise would constitute a serious breach of a fiduciary duty that the person holding the power owes to the beneficiaries of the trust.
    2. The terms of a trust may confer upon a trustee or other person a power to direct the modification or termination of the trust.
    3. A person, other than a beneficiary, who holds a power to direct is presumptively a fiduciary who, as such, is required to act in good faith with regard to the purposes of the trust and the interests of the beneficiaries. The holder of a power to direct is liable for any loss that results from breach of a fiduciary duty.

      (2020, c. 768.)

§ 64.2-779.28. Exclusions.

  1. This article does not apply to a:
    1. Power of appointment;
    2. Power to appoint or remove a trustee or trust director;
    3. Power of a settlor over a trust to the extent the settlor has a power to revoke the trust;
    4. Power of a beneficiary over a trust to the extent the exercise or nonexercise of the power affects the beneficial interest of:
      1. The beneficiary; or
      2. Another beneficiary represented by the beneficiary under Article 3 (§ 64.2-714 et seq.) with respect to the exercise or nonexercise of the power;
    5. Power over a trust if:
      1. The terms of the trust provide that the power is held in a nonfiduciary capacity; and
      2. The power must be held in a nonfiduciary capacity to achieve the settlor's tax objectives under the United States Internal Revenue Code; or
    6. Power over a trust if the terms of the trust provide that the Uniform Directed Trust Act does not apply to the trust.
  2. Unless the terms of a trust provide otherwise, a power granted to a person to designate a recipient of an ownership interest in or power of appointment over trust property which is exercisable while the person is not serving as a trustee is a power of appointment and not a power of direction.

    (2020, c. 768.)

§ 64.2-779.29. Powers of trust director.

  1. Subject to § 64.2-779.30 , the terms of a trust may grant a power of direction to a trust director.
  2. Unless the terms of a trust provide otherwise:
    1. A trust director may exercise any further power appropriate to the exercise or nonexercise of a power of direction granted to the trust director under subsection A; and
    2. Trust directors with joint powers must act by majority decision.

      (2020, c. 768.)

§ 64.2-779.30. Limitations on trust director.

A trust director is subject to the same rules as a trustee in a like position and under similar circumstances in the exercise or nonexercise of a power of direction or further power under subdivision B 1 of § 64.2-779.29 regarding:

  1. A payback provision in the terms of a trust necessary to comply with the reimbursement requirements of Medicaid law in § 1917 of the Social Security Act, 42 U.S.C. § 1396p(d)(4)(A), as amended; and
  2. A charitable interest in the trust, including notice regarding the interest to the Attorney General.

    (2020, c. 768.)

§ 64.2-779.31. Duty and liability of trust director.

  1. Subject to subsection B, with respect to a power of direction or further power under subdivision B 1 of § 64.2-779.29 :
    1. A trust director has the same fiduciary duty and liability in the exercise or nonexercise of the power:
      1. If the power is held individually, as a sole trustee in a like position and under similar circumstances; or
      2. If the power is held jointly with a trustee or another trust director, as a cotrustee in a like position and under similar circumstances; and
    2. The terms of the trust may vary the trust director's duty or liability to the same extent the terms of the trust could vary the duty or liability of a trustee in a like position and under similar circumstances.
  2. Unless the terms of a trust provide otherwise, if a trust director is licensed, certified, or otherwise authorized or permitted by law other than this article to provide health care in the ordinary course of the trust director's business or practice of a profession, to the extent the trust director acts in that capacity, the trust director has no duty or liability under this article.
  3. The terms of a trust may impose a duty or liability on a trust director in addition to the duties and liabilities imposed under this section.

    (2020, c. 768.)

§ 64.2-779.32. Duty and liability of directed trustee.

  1. Subject to subsection B, a directed trustee shall take reasonable action to comply with a trust director's exercise or nonexercise of a power of direction or further power under subdivision B 1 of § 64.2-779.29 , and the trustee is not liable for the action.
  2. A directed trustee must not comply with a trust director's exercise or nonexercise of a power of direction or further power under subdivision B 1 of § 64.2-779.29 to the extent that by complying the trustee would engage in willful misconduct.
  3. An exercise of a power of direction under which a trust director may release a trustee or another trust director from liability for breach of trust is not effective if:
    1. The breach involved the trustee's or other trust director's willful misconduct;
    2. The release was induced by improper conduct of the trustee or other trust director in procuring that release; or
    3. At the time of the release, the trust director did not know the material facts relating to the breach.
  4. A directed trustee that has reasonable doubt about its duty under this section may petition the court for instructions.
  5. The terms of a trust may impose a duty or liability on a directed trustee in addition to the duties and liabilities under this section.

    (2020, c. 768.)

§ 64.2-779.33. Duty to provide information to trust director or trustee.

  1. Subject to § 64.2-779.34 , a trustee shall provide information to a trust director to the extent the information is reasonably related both to:
    1. The powers or duties of the trustee; and
    2. The powers or duties of the trust director.
  2. Subject to § 64.2-779.34 , a trust director shall provide information to a trustee or another trust director to the extent the information is reasonably related both to:
    1. The powers or duties of the trust director; and
    2. The powers or duties of the trustee or other trust director.
  3. A trustee that acts in reliance on information provided by a trust director is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the trustee engages in willful misconduct.
  4. A trust director that acts in reliance on information provided by a trustee or another trust director is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the trust director engages in willful misconduct.

    (2020, c. 768.)

§ 64.2-779.34. No duty to monitor, inform, or advise.

  1. Unless the terms of a trust provide otherwise:
    1. A trustee does not have a duty to:
      1. Monitor a trust director; or
      2. Inform or give advice to a settlor, beneficiary, trustee, or trust director concerning an instance in which the trustee might have acted differently than the trust director; and
    2. By taking an action described in subdivision 1, a trustee does not assume the duty excluded by subdivision 1.
  2. Unless the terms of a trust provide otherwise:
    1. A trust director does not have a duty to:
      1. Monitor a trustee or another trust director; or
      2. Inform or give advice to a settlor, beneficiary, trustee, or another trust director concerning an instance in which the trust director might have acted differently than a trustee or another trust director; and
    2. By taking an action described in subdivision 1, a trust director does not assume the duty excluded by subdivision 1.

      (2020, c. 768.)

§ 64.2-779.35. Limitation of action against trust director.

  1. An action against a trust director for breach of trust must be commenced within the same limitation period as under § 64.2-796 for an action for breach of trust against a trustee in a like position and under similar circumstances.
  2. A report or accounting has the same effect on the limitation period for an action against a trust director for breach of trust that the report or accounting would have under § 64.2-796 in an action for breach of trust against a trustee in a like position and under similar circumstances. (2020, c. 768.)

§ 64.2-779.36. Defenses in action against trust director.

In an action against a trust director for breach of trust, the trust director may assert the same defenses a trustee in a like position and under similar circumstances could assert in an action for breach of trust against the trustee.

(2020, c. 768.)

§ 64.2-779.37. Jurisdiction over trust director.

  1. By accepting appointment as a trust director of a trust subject to this article, the trust director submits to personal jurisdiction of the courts of the Commonwealth regarding any matter related to a power or duty of the trust director.
  2. This section does not preclude other methods of obtaining jurisdiction over a trust director.

    (2020, c. 768.)

§ 64.2-779.38. Office of trust director.

Unless the terms of a trust provide otherwise, the rules applicable to a trustee apply to a trust director regarding the following matters:

  1. Acceptance under § 64.2-754 ;
  2. Giving of bond to secure performance under § 64.2-755 ;
  3. Reasonable compensation under § 64.2-761 ;
  4. Resignation under § 64.2-758 ;
  5. Removal under § 64.2-759 ; and
  6. Vacancy and appointment of successor under § 64.2-757 . (2020, c. 768.)

Article 9. Uniform Prudent Investor Act.

§ 64.2-780. Definition of terms.

As used in this article:

"Controlling document" means the will, agreement, power of attorney, court order, or other instrument creating the fiduciary powers.

"Trust" includes the assets under the control or management of the trustee.

"Trustee" includes any fiduciary as defined in § 8.01-2 , 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 .

(1999, c. 772, § 26-45.13; 2007, c. 517; 2012, c. 614.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

Research References. - Virginia Forms (Matthew Bender). No. 15-250 Fiduciary Powers; No. 15-301 Revocable Inter Vivos Trust Agreement; No. 15-490 Affidavit by Fiduciary Accounting for Stocks and Bonds.

§ 64.2-781. Prudent investor rule.

  1. Except as otherwise provided in subsection B or § 2.2-4519 or 64.2-1502 , a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in this article.
  2. The prudent investor rule, a default rule, may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. A general authorization in a controlling document authorizing a trustee to invest in such assets as the trustee, in his sole discretion, may deem best, or other language purporting to expand the trustee's investment powers, shall not be construed to waive the rule of subsection A unless the controlling document expressly manifests an intention that it be waived (i) by reference to the "prudent man" or "prudent investor" rule, (ii) by reference to power of the trustee to make "speculative" investments, (iii) by an express authorization to acquire or retain a specific asset or type of asset such as a closely held business, or (iv) by other language synonymous with clause (i), (ii) or (iii). A trustee shall not be liable to a beneficiary for the trustee's good faith reliance on a waiver of the rule of subsection A.

    (1999, c. 772, § 26-45.3; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 19-3B-901 to 19-3B-906.

Alaska: Alaska Stat. §§ 13.36.225 to 13.36.290.

Arizona: A.R.S. § 14-10901.

Arkansas: A.C.A. §§ 28-73-901 to 28-73-908.

California: California Prob. Code §§ 16045 to 16054.

Colorado: C.R.S. §§ 15-1.1-101 to 15-1.1-115.

Connecticut: Conn. Gen. Stat. §§ 45a-541 to 45a-541l.

District of Columbia: D.C. Code § 19-1309.01.

Florida: Fla. Stat. § 518.11.

Hawaii: H.R.S. §§ 554C-1 to 554C-12.

Idaho: Idaho Code §§ 68-501 to 68-514.

Indiana: Burns Ind. Code Ann. §§ 30-4-3.5-1 to 30-4-3.5-13.

Iowa: Iowa Code §§ 633.4301 to 633.4309.

Kansas: K.S.A. §§ 58-24a01 to 58-24a19.

Maine: 18-B M.R.S. §§ 901 to 908.

Massachusetts: Mass. Ann. Laws ch. 203C §§ 1 to 11.

Michigan: M.C.L.S. §§ 700.1501 to 700.1512.

Mississippi: Miss. Code Ann. §§ 91-9-601 to 91-9-627.

Missouri: § 469.908 R.S.Mo.

Montana: Mont. Code Ann. §§ 72-34-601 to 72-34-610.

Nebraska: R.R.S. Neb. §§ 30-3883 to 30-3889.

Nevada: NRS §§ 164.705 to 164.775.

New Hampshire: RSA 564-B:9-901 to 564-B:9-907.

New Jersey: N.J. Stat. §§ 3B:20-11.1 to 3B:20-11.12.

New Mexico: N.M. Stat. Ann. §§ 45-7-601 to 45-7-612.

North Carolina: N.C. Gen. Stat. §§ 36C-9-901 to 36C-9-907.

North Dakota: N.D. Cent. Code §§ 59-02-08.1 to 59-02-08.11.

Ohio: O.R.C. Ann. §§ 5809.01 to 5809.08.

Oklahoma: 60 Okl. St. §§ 175.60 to 175.72.

Oregon: O.R.S. §§ 130.750 to 130.775.

Pennsylvania: 20 Pa.C.S. §§ 7201 to 7214.

Rhode Island: R.I. Gen. Laws §§ 18-15-1 to 18-15-13.

South Carolina: S.C. Code Ann. § 62-7-932.

Tennessee: Tenn. Code Ann. §§ 35-14-101 et seq.

Texas: Tex. Prop. Code §§ 117.001 to 117.012.

Utah: Utah Code Ann. §§ 75-7-901 to 75-7-907.

Virgin Islands: 9 V.I.C. § 701.

West Virginia: W. Va. Code §§ 44-6C-1 to 44-6C-15.

Wisconsin: Wis. Stat. § 881.01.

Wyoming: Wyo. Stat. §§ 4-10-901 to 4-10-913.

Effective date. - This section is effective January 1, 2000.

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.23 In What Securities May Invest. Cox.

Editor's note. - Most of the cases below were decided under prior law.

CASE NOTES

Investments proper at time made. - Where there is nothing in the trust instruments to indicate that the trustor intended to restrict investments to those enumerated in the statutes in effect at the time of the execution of the instruments, it is the natural and legal presumption that the trustor intended that the trustees could make such investments as were lawful and proper under the statutes in effect at the time the investments were made. To give effect to such intention impairs no contract and takes away no vested property right. Goodridge v. National Bank of Commerce, 200 Va. 511 , 106 S.E.2d 598 (1959).

"Prudent man rule" governs trustee's obligations regarding productivity of assets. - Although management discretion afforded a trustee under § 64.1-57 and former § 55-253 et seq. [see now § 55-277.1 et seq.] is extensive, that discretion is subject to the requirements of the "prudent man rule"; the restatement principles define a trustee's obligations under the "prudent man rule" regarding productivity of trust assets. Sturgis v. Stinson, 241 Va. 531 , 404 S.E.2d 56 (1991).

Liability under former subsection B of § 31-48. - Custodians of three children's account under the Virginia Uniform Transfers to Minors Act, § 31-37 et seq., a father and an uncle, were liable for losses to the children's accounts where the uncle abdicated his custodial duties and the father violated the custodial standard of care provided in former subsection B of § 31-48, the Prudent Person Rule, by speculating in airline stock when he knew that the airline was on the verge of bankruptcy. Carlson v. Wells, 281 Va. 173 , 705 S.E.2d 101 (2011).

Effect of waiver. - In order to impose liability against a trustee in regard to its investments of assets of a marital trust created by a will in which the testator granted the widest discretionary powers to the trustee and waived the "prudent man" rule, it would have to be alleged and proved that the trustee acted dishonestly or in bad faith, or abused the discretion vested in it. Hoffman v. First Va. Bank, 220 Va. 834 , 263 S.E.2d 402 (1980).

Constructive fraud through misuse of funds. - Administratrix, acting in her fiduciary capacity, whether as the personal representative of the deceased or under an agreement between the beneficiaries of the will, did not meet the "prudent man" standard required of her by this section where her handling of the estate amounted to constructive fraud through a flagrant misuse of the funds entrusted to her, especially the authorization of a 33 1 / 3 % contingency fee to her attorneys which she concealed from the other beneficiaries. Kitchen v. Throckmorton, 223 Va. 164 , 286 S.E.2d 673 (1982).

CIRCUIT COURT OPINIONS

Default rule. - The Prudent Investor Act in subsection B of § 26-45.3, provides merely a default rule that may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. This intent could be demonstrated in a variety of ways, though a general authorization in a will or trust authorizing a fiduciary to invest in such assets as the fiduciary, in his sole discretion, may deem best, will not suffice. Hartman v. Walker, 73 Va. Cir. 245, 2007 Va. Cir. LEXIS 212 (Charlottesville 2007) (decided under prior law).

Breach of fiduciary duty. - Court found that defendant breached his fiduciary duties and specifically violated the prudent investor rule by his unauthorized day trading and purchases of stock on margin, and that defendant's actions were reckless. Higgerson v. Farthing, 96 Va. Cir. 58, 96 Va. Cir. 58, 2017 Va. Cir. LEXIS 118 (Chesapeake June 20, 2017).

§ 64.2-782. Standard of care; portfolio strategy; risk and return objectives.

  1. A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
  2. A trustee's investment and management decisions respecting individual assets shall be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
  3. Among circumstances that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries:
    1. General economic conditions;
    2. The possible effect of inflation or deflation;
    3. The expected tax consequences of investment decisions or strategies;
    4. The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;
    5. The expected total return from income and the appreciation of capital;
    6. Other resources of the beneficiaries;
    7. Needs for liquidity, regularity of income, and preservation or appreciation of capital; and
    8. An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.
  4. A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.
  5. A trustee may invest in any kind of property or type of investment consistent with the standards of this article.
  6. A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise.
  7. A trustee may hold any policies of life insurance acquired by gift or pursuant to an express permission or direction in the governing instrument including an authority granted by subdivision B 19 of § 64.2-105 with no duty or need to (i) determine whether any such policy is or remains a proper investment, (ii) dispose of such policy in order to diversify the investments of the trust, or (iii) exercise policy options under any such contract not essential to the continuation of the life insurance provided by such contract. However, apart from these specific authorities, this subsection is not intended and shall not be construed to affect the application of the standard of judgment and care as set forth in this section. This subsection shall apply to all trusts, regardless of when established. (1999, c. 772, § 26-45.4; 2012, c. 614.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.23 In What Securities May Invest. Cox.

CIRCUIT COURT OPINIONS

Applicability. - Court found that defendant breached his fiduciary duties and specifically violated the prudent investor rule by his unauthorized day trading and purchases of stock on margin, and that defendant's actions were reckless. Higgerson v. Farthing, 96 Va. Cir. 58, 96 Va. Cir. 58, 2017 Va. Cir. LEXIS 118 (Chesapeake June 20, 2017).

§ 64.2-783. Diversification by trustee.

A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.

(1999, c. 772, § 26-45.5; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Failure to provide information to co-trustee. - Where information concerning offers made for partnership property was not provided to a testator's son, who was a co-trustee and a beneficiary of a family trust, the other co-trustees may have prevented a full determination of whether, because of special circumstances, the purposes of the trust were better served by maintaining unproductive property; as such, the co-trustees may have breached their duty to the son. Hartman v. Walker, 73 Va. Cir. 245, 2007 Va. Cir. LEXIS 212 (Charlottesville 2007)(decided under prior law).

§ 64.2-784. Duties at inception of trusteeship.

Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust, and with the requirements of this article.

(1999, c. 772, § 26-45.6; 2012, c. 614.)

§ 64.2-785. Loyalty and impartiality.

  1. A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries.
  2. If a trust has two or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries.

    (1999, c. 772, § 26-45.7; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Beneficiaries will be impartially favored. - While neither the Prudent Investor Act, § 26-45.3 et seq., nor the Uniform Principal and Income Act, § 55-277.1 et seq., demanded that a beneficiary be paid a reasonable income, they did contemplate that beneficiaries would be impartially favored. Hartman v. Walker, 73 Va. Cir. 245, 2007 Va. Cir. LEXIS 212 (Charlottesville 2007)(decided under prior law).

§ 64.2-786. Investment costs.

In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee.

(1999, c. 772, § 26-45.8; 2012, c. 614.)

§ 64.2-787. Reviewing compliance.

Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight.

(1999, c. 772, § 26-45.9; 2012, c. 614.)

§ 64.2-788. Delegation of investment and management functions.

  1. A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
    1. Selecting an agent;
    2. Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
    3. Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
  2. In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
  3. A trustee who complies with the requirements of subsection A is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.
  4. By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of the Commonwealth, an agent submits to the jurisdiction of the courts of the Commonwealth.

    (1999, c. 772, § 26-45.10; 2012, c. 614.)

§ 64.2-789. Language invoking standard of article.

The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified by language articulating the investment standard to which the trustee is to be held, authorizes any investment or strategy permitted under this article: "investments permissible by law for investment of trust funds," "legal investments," "authorized investments," "using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital," "prudent man rule," "prudent trustee rule," "prudent person rule," and "prudent investor rule."

(1999, c. 772, § 26-45.11; 2012, c. 614.)

§ 64.2-790. Application to existing trusts.

This article applies to trusts existing on and created after January 1, 2000. As applied to trusts existing on its effective date, this article governs only decisions or actions occurring after that date.

(1999, c. 772, § 26-45.12; 2012, c. 614.)

§ 64.2-791. Uniformity of application and construction.

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among the states enacting it.

(1999, c. 772, § 26-45.14; 2012, c. 614.)

Article 10. Liability of Trustees and Rights of Persons Dealing with Trustee.

§ 64.2-792. Remedies for breach of trust.

  1. A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.
  2. To remedy a breach of trust that has occurred or may occur, the court may:
    1. Compel the trustee to perform the trustee's duties;
    2. Enjoin the trustee from committing a breach of trust;
    3. Compel the trustee to redress a breach of trust by paying money, restoring property, or other means;
    4. Order a trustee to account;
    5. Appoint a special fiduciary to take possession of the trust property and administer the trust;
    6. Suspend the trustee;
    7. Remove the trustee as provided in § 64.2-759 ;
    8. Reduce or deny compensation to the trustee;
    9. Subject to § 64.2-803 , void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or
    10. Order any other appropriate relief. (2005, c. 935, § 55-550.01; 2012, c. 614.)

Applied in Jimenez v. Corr, 288 Va. 395 , 764 S.E.2d 115 (2014).

CIRCUIT COURT OPINIONS

Standing. - Beneficiary of a separate, unfunded sub-trust lacked standing to bring a direct action against the trustee of the primary trust, personally and in the trustee's representative capacity, for alleged mismanagement of the primary trust because the beneficiary did not have an immediate, pecuniary, and substantial interest in the primary trust. The beneficiary's beneficial interest in the separate, unfunded sub-trust was too indirect and remote to confer standing upon the beneficiary in relation to the primary trust. Garcia v. Suda, 94 Va. Cir. 246, 2016 Va. Cir. LEXIS 134 (Fairfax County Sept. 6, 2016).

§ 64.2-793. Damages for breach of trust.

  1. A trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of:
    1. The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or
    2. The profit the trustee made by reason of the breach.
  2. Except as otherwise provided in this subsection, if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received.

    (2005, c. 935, § 55-550.02; 2012, c. 614.)

§ 64.2-794. Damages in absence of breach.

  1. A trustee is accountable to an affected beneficiary for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust.
  2. Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit.

    (2005, c. 935, § 55-550.03; 2012, c. 614.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.2 The Mortgage Transaction. Rendleman.

§ 64.2-795. Attorney fees and costs.

In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

(2005, c. 935, § 55-550.04; 2012, c. 614.)

CASE NOTES

Construction. - Supreme Court of Virginia concludes that § 64.2-795 does not provide for an award of attorney fees assessed against a litigant personally when that litigant is acting in a representative capacity. That statute provides that in a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy. Reineck v. Lemen, 292 Va. 710 , 792 S.E.2d 269, 2016 Va. LEXIS 178 (2016).

Fees inappropriate. - Trial court erred in awarding the daughter and son attorney fees under § 64.2-795 where the wife's son was a party to the suit as curator, not personally, and the statute did not provide for an award of fees assessed against a litigant personally. Reineck v. Lemen, 292 Va. 710 , 792 S.E.2d 269, 2016 Va. LEXIS 178 (2016).

CIRCUIT COURT OPINIONS

Construction. - Unambiguous language in the statute does not indicate the need to review other statutes to fix its purpose; indeed, the statute provides that even a non-trustee party may be ordered to pay or the trust itself may be ordered to pay attorney fees and costs provided the award serves the ends of justice and equity. Howell v. Hart, 98 Va. Cir. 452, 2014 Va. Cir. LEXIS 166 (Caroline County Mar. 7, 2014).

Fees appropriate. - Judgment was entered in favor of a decedent's co-executors and attorneys' fees were granted against a trustee, attorney in fact, and executor of certain trust documents (the fiduciary) based on a fiduciary's conversion of funds, self-dealing, and overall violation of fiduciary duty because the decedent, while still legally competent, was vulnerable to being manipulated by someone with impressive professional credentials, who played to his ego, there was no credible evidence presented rebutting the inference of fraud concerning the insider dealing by the fiduciary, and the fiduciary provided nothing to show what was done with the decedent's money, other than the use of it to pay his personal bills and living expenses. In re Roszel, 95 Va. Cir. 293, 95 Va. Cir. 293, 2017 Va. Cir. LEXIS 72 (Fauquier County Mar. 16, 2017).

Fees and costs awarded. - Rescue squad's claim for attorney fees and costs was not precluded because the supreme court did not direct in its opinion on appeal that the rescue squad could apply for an award of attorney fees, which was not an issue on appeal; there was no final judgment in the circuit court, and the statute still gave authority to that court to award attorney fees and costs to the rescue squad. Howell v. Hart, 98 Va. Cir. 452, 2014 Va. Cir. LEXIS 166 (Caroline County Mar. 7, 2014).

Rescue squad's motion for attorney fees and costs was granted because its singular effort in appealing the decision of the circuit court, which thereby assured that the settlor's intent would be carried out, merited an award of attorney fees; the circuit court authority to award fees and costs was neither constrained by a volunteer fire department or by the rescue squad's successful contention that in accordance with the settlor's intent and the law the division of the trust was improper. Howell v. Hart, 98 Va. Cir. 452, 2014 Va. Cir. LEXIS 166 (Caroline County Mar. 7, 2014).

Va. Sup. Ct. R. 5:35(b) did not block a rescue squad's motion for attorney fees and costs pursuant to § 64.2-795 because the rescue squad was an appellant, not an appellee, its appeal was granted, and it successfully obtained a reversal of the judgment. Howell v. Hart, 98 Va. Cir. 452, 2014 Va. Cir. LEXIS 166 (Caroline County Mar. 7, 2014).

§ 64.2-796. Limitation of action against trustee.

  1. A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding.
  2. A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence.
  3. If subsection A does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust shall be commenced within five years after the first to occur of:
    1. The removal, resignation, or death of the trustee;
    2. The termination of the beneficiary's interest in the trust; or
    3. The termination of the trust.
  4. Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter, or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person benefiting from the fraud, whether innocent or not, except for a bona fide purchaser. Any proceeding shall be commenced within two years after the fraud is discovered, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time the fraud is committed. This section does not apply to remedies for fraud practiced on a decedent during his lifetime that affects the succession of his estate.
  5. The provisions of this section shall not operate to reduce the period of limitations applicable to actions and suits governed by § 8.01-245 . (2005, c. 935, § 55-550.05; 2012, c. 614.)

CASE NOTES

Statute of limitations. - Adversary proceeding that a sister filed against her brother after her brother declared Chapter 7 bankruptcy was timely, regardless of whether the two-year statute of limitations imposed by subsection A of § 8.01-243 or the five-year statute of limitations imposed by subsection B of § 8.01-243 and subsection C of § 55-550.05 governed her claims that her brother breached a fiduciary duty and committed conversion when he took money their father placed in a certificate of deposit for the sister's benefit, pledged that money and his own money to secure a loan, and lost the sister's money when he could not repay the loan. The sister did not discover her brother's conduct until after he declared bankruptcy, and she filed her adversary proceeding within two years of the date her brother testified at the first meeting of creditors. Halstead v. Bilter (In re Bilter), 413 Bankr. 290 (Bankr. E.D. Va. 2009)(decided under prior law).

§ 64.2-797. Reliance on trust instrument.

A trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.

(2005, c. 935, § 55-550.06; 2012, c. 614.)

§ 64.2-798. Event affecting administration or distribution.

If the happening of an event, including marriage, divorce, performance of educational requirements, or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge.

(2005, c. 935, § 55-550.07; 2012, c. 614.)

§ 64.2-799. Exculpation of trustee.

  1. A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:
    1. Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or
    2. Was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.
  2. An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the existence and contents of the exculpatory term were adequately communicated to the settlor.

    (2005, c. 935, § 55-550.08; 2012, c. 614.)

§ 64.2-800. Beneficiary's consent, release, or ratification.

A trustee is not liable to a beneficiary for breach of trust if the beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach, unless:

  1. The consent, release, or ratification of the beneficiary was induced by improper conduct of the trustee; or
  2. At the time of the consent, release, or ratification, the beneficiary did not know of the beneficiary's rights or of the material facts relating to the breach.

    (2005, c. 935, § 55-550.09; 2012, c. 614.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.23 In What Securities May Invest. Cox.

§ 64.2-801. Limitation on personal liability of trustee.

  1. Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee's fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.
  2. A trustee is personally liable for torts committed in the course of administering a trust, or for obligations arising from ownership or control of trust property, including liability for violation of environmental law, only if the trustee is personally at fault.
  3. A claim based on a contract entered into by a trustee in the trustee's fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee's fiduciary capacity, whether or not the trustee is personally liable for the claim.

    (2005, c. 935, § 55-550.10; 2012, c. 614.)

§ 64.2-802. Interest as general partner.

  1. Except as otherwise provided in subsection C or unless personal liability is imposed in the contract, a trustee who holds an interest as a general partner in a general or limited partnership is not personally liable on a contract entered into by the partnership after the trust's acquisition of the interest if the fiduciary capacity was disclosed in the contract or in a statement previously filed pursuant to the Uniform Partnership Act (§ 50-73.79 et seq.).
  2. Except as otherwise provided in subsection C, a trustee who holds an interest as a general partner is not personally liable for torts committed by the partnership or for obligations arising from ownership or control of the interest unless the trustee is personally at fault.
  3. The immunity provided by this section does not apply if an interest in the partnership is held by the trustee in a capacity other than that of trustee or is held by the trustee's spouse or one or more of the trustee's descendants, siblings, or parents, or the spouse of any of them.
  4. If the trustee of a revocable trust holds an interest as a general partner, the settlor is personally liable for contracts and other obligations of the partnership as if the settlor were a general partner.

    (2005, c. 935, § 55-550.11; 2012, c. 614.)

§ 64.2-803. Protection of person dealing with trustee.

  1. A person other than a beneficiary who in good faith assists a trustee, or who in good faith and for value deals with a trustee, without knowledge that the trustee is exceeding or improperly exercising the trustee's powers, is protected from liability as if the trustee properly exercised the power.
  2. A person other than a beneficiary who in good faith deals with a trustee is not required to inquire into the extent of the trustee's powers or the propriety of their exercise.
  3. A person who in good faith delivers assets to a trustee need not ensure their proper application.
  4. A person other than a beneficiary who in good faith assists a former trustee, or who in good faith and for value deals with a former trustee, without knowledge that the trusteeship has terminated is protected from liability as if the former trustee were still a trustee.
  5. Comparable protective provisions of other laws relating to commercial transactions or transfer of securities by fiduciaries prevail over the protection provided by this section.

    (2005, c. 935, § 55-550.12; 2012, c. 614.)

§ 64.2-804. Certification of trust.

  1. Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust containing the following information:
    1. That the trust exists and the date the trust instrument was executed;
    2. The identity of the settlor;
    3. The identity and address of the currently acting trustee;
    4. The powers of the trustee;
    5. The revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust;
    6. The authority of cotrustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee;
    7. The trust's taxpayer identification number; and
    8. The manner of taking title to trust property.
  2. A certification of trust may be signed or otherwise authenticated by any trustee.
  3. A certification of trust shall state that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect.
  4. A certification of trust need not contain the dispositive terms of a trust.
  5. A recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction.
  6. A person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certification. Knowledge of the terms of the trust may not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying upon the certification.
  7. A person who in good faith enters into a transaction in reliance upon a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct.
  8. A person making a demand for the trust instrument in addition to a certification of trust or excerpts is liable for damages if the court determines that the person did not act in good faith in demanding the trust instrument.
  9. This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.

    (2005, c. 935, § 55-550.13; 2012, c. 614.)

Article 11. Miscellaneous Provisions.

§ 64.2-805. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(2005, c. 935, § 55-551.01; 2012, c. 614.)

§ 64.2-806. Electronic records and signatures.

The provisions of this chapter governing the legal effect, validity, or enforceability of electronic records or electronic signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of § 102 of the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7002) and supersede, modify, and limit the requirements of the Electronic Signatures in Global and National Commerce Act.

(2005, c. 935, § 55-551.02; 2012, c. 614.)

§ 64.2-807.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 64.2-807 , pertaining to severability, derived from 2005, c. 935, § 55-551.03; 2012, c. 614.

§ 64.2-808. Application to existing relationships.

  1. Except as otherwise provided in this chapter:
    1. This chapter applies to all trusts created before, on, or after July 1, 2006;
    2. This chapter applies to all judicial proceedings concerning trusts commenced on or after July 1, 2006;
    3. This chapter applies to judicial proceedings concerning trusts commenced before July 1, 2006, unless the court finds that application of a particular provision of this chapter would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of this chapter does not apply and the superseded law applies;
    4. Any rule of construction or presumption provided in this chapter applies to trust instruments executed before July 1, 2006, unless there is a clear indication of a contrary intent in the terms of the trust; and
    5. An act done before July 1, 2006, is not affected by this chapter.
  2. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before July 1, 2006, that statute continues to apply to the right even if it has been repealed or superseded.

    (2005, c. 935, § 55-551.06; 2012, c. 614.)

Chapter 8. Reserved.

Chapter 9. Uniform Custodial Trust Act.

Sec.

§ 64.2-900. Definitions.

As used in this chapter:

"Adult" means an individual who is at least 18 years of age.

"Beneficiary" means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under this chapter.

"Conservator" means a person appointed or qualified by a court to manage the estate of an individual or a person legally authorized to perform substantially the same functions.

"Court" means a circuit court of the Commonwealth.

"Custodial trust property" means an interest in property transferred to or held under a declaration of trust by a custodial trustee under this chapter and the income from and proceeds of that interest.

"Custodial trustee" means a person designated as trustee of a custodial trust under this chapter or a substitute or successor to the person designated.

"Guardian" means a person appointed or qualified by a court as a guardian of a person, including a limited guardian, but not a person who is only a guardian ad litem.

"Incapacitated" means lacking the ability to manage property and business affairs effectively by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance, minority, or other disabling cause.

"Legal representative" means a personal representative or conservator.

"Member of the beneficiary's family" means a beneficiary's spouse, descendant, stepchild, parent, stepparent, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.

"Person" means an individual, corporation, business trust, estate, trust, partnership, joint venture, association, or any other legal or commercial entity.

"Personal representative" means an executor, administrator, or special administrator of a decedent's estate, a person legally authorized to perform substantially the same functions, or a successor to any of them.

"State" means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

"Transferor" means a person who creates a custodial trust by transfer or declaration.

"Trust company" means a financial institution, corporation, or other legal entity authorized to exercise general trust powers.

(1990, c. 264, § 55-34.1; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alaska: Alaska Stat. §§ 13.60.010 to 13.60.990.

Arizona: A.R.S. §§ 14-9101 to 14-9119.

Colorado: C.R.S. §§ 15-1.5-101 to 15-1.5-122.

District of Columbia: D.C. Code §§ 19-1101 to 19-1120.

Hawaii: H.R.S. §§ 554B-1 to 554B-22.

Idaho: Idaho Code §§ 68-1301 to 68-1322.

Indiana: Burns Ind. Code Ann. §§ 30-2-8.6-1 through 30-2-8.6-39.

Louisiana: La. R.S. §§ 9:2260.1 to 9:2260.21.

Massachusetts: Mass. Ann. Laws ch. 203B, §§ 1 to 19.

Minnesota: Minn. Stat. §§ 529.01 to 529.19.

Nebraska: R.R.S. Neb. §§ 30-3501 to 30-3522.

Nevada: Nev. Rev. Stat. Ann. § 166A.010 to 166A.360.

New Mexico: N.M. Stat. Ann. §§ 45-7-501 to 45-7-522.

North Carolina: N.C. Gen. Stat. §§ 33B-1 to 33B-22.

Rhode Island: R.I. Gen. Laws §§ 18-13-1 to 18-13-22.

Wisconsin: Wis. Stat. § 54.950 et seq.

Research References. - Virginia Forms (Matthew Bender). No. 15-207 Bequest or Devise to Minor, et seq.; No. 15-303 Revocable Inter Vivos Trust Agreement - Another Form Amending Existing Declaration of Trust, et seq.

§ 64.2-901. Custodial trust; creation and termination; general provisions.

  1. A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration if the property is of a type subject to registration, or by other instrument of transfer, executed in any lawful manner, naming as beneficiary an individual who may be the transferor, in which the transferee is designated, in substance, as custodial trustee under this chapter.
  2. In addition, a person may create a custodial trust of property by a written declaration, evidenced by registration of the property if the property is of a type subject to registration, or by other instrument of declaration, executed in any lawful manner, describing the property and naming as beneficiary an individual other than the declarant, in which the declarant as titleholder is designated, in substance, as custodial trustee under this chapter. A registration or other declaration of trust for the sole benefit of the declarant is not a custodial trust under this chapter.
  3. Title to custodial trust property is in the custodial trustee and the beneficial interest is in the beneficiary.
  4. The beneficiary, if not incapacitated, may terminate a custodial trust by delivering to the custodial trustee a writing signed by the beneficiary declaring the termination. The conservator of an incapacitated beneficiary may similarly terminate the custodial trust in this manner but only if granted the power by the circuit court that appointed him in a proceeding in which the custodial trustee is made a party. If not previously terminated, the custodial trust terminates on the death of the beneficiary. A transferor may not terminate a custodial trust except as provided in this subsection.
  5. Any person may augment existing custodial trust property by the addition of other property pursuant to this chapter.
  6. The transferor may designate, or authorize the designation of, a successor custodial trustee in the trust instrument.
  7. This chapter does not displace or restrict other means of creating trusts. A trust whose terms do not conform to this chapter may be enforceable according to its terms under other law.

    (1990, c. 264, § 55-34.2; 2012, c. 614.)

§ 64.2-902. Custodial trustee for future payment or transfer.

  1. A person having the right to designate the recipient of property payable or transferable upon a future event may create a custodial trust upon the occurrence of the future event by designating in writing the recipient, followed in substance by: "as custodial trustee for.  ....................  (name of beneficiary) under the Virginia Uniform Custodial Trust Act."
  2. Persons may be designated as substitute or successor custodial trustees to whom the property shall be paid or transferred in the order named if the first designated custodial trustee is unable or unwilling to serve.
  3. A designation under this section may be made in a will, a trust, a deed, a multiple-party account, an insurance policy, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights. Otherwise, to be effective, the designation shall be registered with or delivered to the fiduciary, payor, issuer, or obligor of the future right.

    (1990, c. 264, § 55-34.3; 2012, c. 614.)

§ 64.2-903. Form and effect of receipt and acceptance by custodial trustee; jurisdiction.

  1. Obligations of a custodial trustee, including the obligation to follow directions of the beneficiary, arise under this chapter upon the custodial trustee's acceptance, express or implied, of the custodial trust property.
  2. The custodial trustee's acceptance may be evidenced by a writing stating in substance:
  3. Upon accepting custodial trust property, a person designated as custodial trustee under this chapter is subject to personal jurisdiction of the court with respect to any matter relating to the custodial trust.

    (1990, c. 264, § 55-34.4; 2012, c. 614.)

CUSTODIAL TRUSTEE'S RECEIPT AND ACCEPTANCE

I, . . . . . . . . . . . . . . . (name of custodial trustee), acknowledge receipt of the custodial trust property described below or in the attached instrument and accept the custodial trust as custodial trustee for . . . . . . . . . . . . . . . (name of beneficiary) under the Virginia Uniform Custodial Trust Act. I undertake to administer and distribute the custodial trust property pursuant to the Virginia Uniform Custodial Trust Act. My obligations as custodial trustee are subject to the directions of the beneficiary unless the beneficiary is designated as, is, or becomes incapacitated. The custodial trust property consists of ...................... Dated: .................... .................... (signature of custodial trustee)

Research References. - Virginia Forms (Matthew Bender). No. 15-317 Transfer Under the Virginia Uniform Custodial Trust Act, et seq.

§ 64.2-904. Transfer to custodial trustee by fiduciary or obligor; facility of payment.

  1. Unless otherwise directed by an instrument designating a custodial trustee pursuant to § 64.2-902 , a person, including a fiduciary other than a custodial trustee, who holds property of or owes a debt to an incapacitated individual not having a conservator may make a transfer to an adult member of the beneficiary's family or to a trust company as custodial trustee for the use and benefit of the incapacitated individual. If the value of the property or the debt exceeds $25,000, the transfer is not effective unless authorized by the court.
  2. With court approval, any person, including a conservator, guardian, or other fiduciary who holds property of or owes a debt to an incapacitated individual, may make a transfer to any person as a custodial trustee for the use and benefit of the incapacitated individual. The court, in the exercise of its discretion, may require the custodial trustee to furnish a bond with surety for the faithful performance of his fiduciary duties.
  3. A written acknowledgment of delivery, signed by a custodial trustee, is a sufficient receipt and discharge for property transferred to the custodial trustee pursuant to this section.

    (1990, c. 264, § 55-34.5; 1995, c. 444; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection A, substituted "$25,000" for "$10,000."

Law review. - For 1995 survey of wills, trusts, and estates, see 29 U. Rich. L. Rev. 1175 (1995).

Research References. - Virginia Forms (Matthew Bender). No. 15-232 Distribution to Custodial Trustee for Incapacitated Beneficiary; No. 15-317 Transfer Under the Virginia Uniform Custodial Trust Act, et seq.

OPINIONS OF THE ATTORNEY GENERAL

Distribution by fiduciary to custodial trustee does not require court approval. - Section 55-34.5 does not require a fiduciary exercising administrative power under § 64.1-57(1)(p)(5) to obtain court approval before distributing to a custodial trustee under the Virginia Uniform Custodial Trust Act an amount in excess of $10,000. See opinion of Attorney General to The Honorable William J. Howell, Member, House of Delegates, 00-017 (4/18/00).

§ 64.2-905. Multiple beneficiaries; separate custodial trusts; survivorship.

  1. Beneficial interests in a custodial trust created for multiple beneficiaries are deemed to be separate custodial trusts of equal undivided interests for each beneficiary. Except in a transfer or declaration for use and benefit of spouses, for whom survivorship is presumed, a right of survivorship does not exist unless the instrument creating the custodial trust specifically provides for survivorship or survivorship is required as to marital property.
  2. Custodial trust property held under this chapter by the same custodial trustee for the use and benefit of the same beneficiary may be administered as a single custodial trust.
  3. A custodial trustee of custodial trust property held for more than one beneficiary shall separately account to each beneficiary pursuant to §§ 64.2-906 and 64.2-914 for the administration of the custodial trust. (1990, c. 264, § 55-34.6; 2012, c. 614; 2020, c. 900.)

The 2020 amendments. - The 2020 amendment by c. 900, substituted "spouses" for "husband and wife" in subsection A, last sentence.

§ 64.2-906. General duties of custodial trustee.

  1. If appropriate, a custodial trustee shall register or record the instrument vesting title to custodial trust property. If the beneficiary is not incapacitated, a custodial trustee shall follow the directions of the beneficiary in the management, control, investment, or retention of the custodial trust property. In the absence of effective contrary direction by the beneficiary while not incapacitated, the custodial trustee shall observe the standard of care set forth in the Uniform Prudent Investor Act (§ 64.2-780 et seq.), except to the extent provided by § 64.2-1502 . However, a custodial trustee, in the custodial trustee's discretion, may retain any custodial trust property received from the transferor. Subject to this subsection, a custodial trustee shall take control of and collect, hold, manage, invest, and reinvest custodial trust property.
  2. A custodial trustee at all times shall keep custodial trust property of which the custodial trustee has control, separate from all other property in a manner sufficient to identify it clearly as custodial trust property of the beneficiary. Custodial trust property, the title to which is subject to recordation, is so identified if an appropriate instrument so identifying the property is recorded, and custodial trust property subject to registration is so identified if it is registered, or held in an account in the name of the custodial trustee, designated in substance: "as custodial trustee for  .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act."
  3. A custodial trustee shall keep records of all transactions with respect to custodial trust property, including information necessary for the preparation of tax returns, and shall make the records and information available at reasonable times to the beneficiary or legal representative of the beneficiary.
  4. An agent under a power of attorney for an incapacitated beneficiary may not terminate or direct the administration of a custodial trust.

    (1990, c. 264, § 55-34.7; 2007, c. 517; 2010, cc. 455, 632; 2012, c. 614.)

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

§ 64.2-907. General powers of custodial trustee.

  1. A custodial trustee, acting in a fiduciary capacity, has all the rights and powers over custodial trust property that an unmarried adult owner has over individually owned property, which shall include but not be limited to those powers set forth in § 64.2-105 as of the date the custodian acts, but a custodial trustee may exercise those rights and powers in a fiduciary capacity only.
  2. This section does not relieve a custodial trustee from liability for a violation of § 64.2-906 . (1990, c. 264, § 55-34.8; 2012, c. 614.)

§ 64.2-908. Use of custodial trust property.

  1. A custodial trustee shall pay to the beneficiary or expend for the beneficiary's use and benefit so much or all of the custodial trust property as the beneficiary while not incapacitated may direct from time to time. If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the use and benefit of the beneficiary and individuals who were supported by the beneficiary when the beneficiary became incapacitated, or who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order and without regard to other support, income, or property of the beneficiary.
  2. A custodial trustee may establish checking, savings, or other similar accounts of reasonable amounts under which either the custodial trustee or the beneficiary may withdraw funds from, or draw checks against, the accounts. Funds withdrawn from, or checks written against, the account by the beneficiary are distributions of custodial trust property by the custodial trustee to the beneficiary.

    (1990, c. 264, § 55-34.9; 2012, c. 614.)

§ 64.2-909. Determination of incapacity; effect.

  1. The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if (i) the custodial trust was created under § 64.2-904 , (ii) the transferor has so directed in the instrument creating the custodial trust, or (iii) the custodial trustee has determined that the beneficiary is incapacitated. A custodial trustee may determine that the beneficiary is incapacitated in reliance upon (a) previous direction or authority given by the beneficiary while not incapacitated, including direction or authority pursuant to a durable power of attorney, (b) the certificate of the beneficiary's physician, or (c) other persuasive evidence. On petition of the beneficiary, the custodial trustee, or other person interested in the custodial trust property or the welfare of the beneficiary, the court shall determine whether the beneficiary is incapacitated. Absent determination of incapacity of the beneficiary, a custodial trustee who has reason to believe that the beneficiary is incapacitated shall administer the custodial trust in accordance with the provisions of this chapter applicable to an incapacitated beneficiary.
  2. If a custodial trustee for an incapacitated beneficiary reasonably concludes that the beneficiary's incapacity has ceased, or that circumstances concerning the beneficiary's ability to manage property and business affairs have changed since the creation of a custodial trust directing administration as for an incapacitated beneficiary, the custodial trustee may administer the trust as for a beneficiary who is not incapacitated.
  3. Incapacity of a beneficiary does not terminate (i) the custodial trust, (ii) any designation of a successor custodial trustee, (iii) rights or powers of the custodial trustee, or (iv) any immunities of third persons acting on instructions of the custodial trustee.

    (1990, c. 264, § 55-34.10; 2012, c. 614.)

§ 64.2-910. Exemption of third person from liability.

A third person in good faith and without a court order may act on instructions of, or otherwise deal with, a person purporting to make a transfer as, or purporting to act in the capacity of, a custodial trustee. In the absence of knowledge to the contrary, the third person is not responsible for determining (i) the validity of the purported custodial trustee's designation, (ii) the propriety of, or the authority under this chapter for, any action of the purported custodial trustee, (iii) the validity or propriety of an instrument executed or instruction given pursuant to this chapter either by the person purporting to make a transfer or declaration or by the purported custodial trustee, or (iv) the propriety of the application of property vested in the purported custodial trustee.

(1990, c. 264, § 55-34.11; 2012, c. 614.)

§ 64.2-911. Liability to third person; exceptions.

  1. A claim based on a contract entered into by a custodial trustee acting in a fiduciary capacity, an obligation arising from the ownership or control of custodial trust property, or a tort committed in the course of administering the custodial trust, may be asserted by a third person against the custodial trust property by proceeding against the custodial trustee in a fiduciary capacity, whether or not the custodial trustee or the beneficiary is personally liable.
  2. A custodial trustee is not personally liable to a third person (i) on a contract properly entered into in a fiduciary capacity, unless the custodial trustee fails to reveal that capacity or to identify the custodial trust in the contract, or (ii) for an obligation arising from control of custodial trust property or for a tort committed in the course of the administration of the custodial trust unless the custodial trustee is personally at fault. A beneficiary is not personally liable to a third person for an obligation arising from beneficial ownership of custodial trust property or for a tort committed in the course of administration of the custodial trust unless the beneficiary is personally in possession of the custodial trust property giving rise to the liability or is personally at fault.
  3. This section does not preclude actions or proceedings to establish liability of the custodial trustee or beneficiary to the extent the person sued is protected as the insured by liability insurance.

    (1990, c. 264, § 55-34.12; 2012, c. 614.)

§ 64.2-912. Declination, resignation, incapacity, death, or removal of custodial trustee; designation of successor.

  1. Before accepting the custodial trust property, a person designated as custodial trustee may decline to serve by notifying the person who made the designation, the transferor, or the transferor's legal representative. If an event giving rise to a transfer has not occurred, the substitute custodial trustee designated under § 64.2-902 becomes the custodial trustee, or, if a substitute custodial trustee has not been designated, the person who made the designation may designate a substitute custodial trustee pursuant to § 64.2-902 . In other cases, the transferor or the transferor's legal representative may designate a substitute custodial trustee.
  2. A custodial trustee who has accepted the custodial trust property may resign by (i) delivering written notice to a successor custodial trustee, if any, the beneficiary, and, if the beneficiary is incapacitated, to the beneficiary's conservator, if any, and (ii) transferring or registering, or recording an appropriate instrument relating to, the custodial trust property, in the name of, and delivering the records to, the successor custodial trustee.
  3. If a custodial trustee or successor custodial trustee is ineligible, resigns, dies, or becomes incapacitated, the successor designated in accordance with the trust instrument or in accordance with § 64.2-902 becomes custodial trustee. If there is no effective provision for a successor, the beneficiary, if not incapacitated, may designate a successor custodial trustee. If the beneficiary is incapacitated, or fails to act within 90 days after the ineligibility, resignation, death, or incapacity of the custodial trustee, the beneficiary's conservator becomes successor custodial trustee. If the beneficiary does not have a conservator or the conservator fails to act, the resigning custodial trustee may designate a successor custodial trustee.
  4. If a successor custodial trustee is not designated as provided in this section, the transferor, the legal representative of the transferor or of the custodial trustee, an adult member of the beneficiary's family, the guardian or conservator of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court to designate a successor custodial trustee.
  5. A custodial trustee who declines to serve or resigns, or the legal representative of a deceased or incapacitated custodial trustee, as soon as practicable, shall put the custodial trust property and records in the possession and control of the successor custodial trustee. The successor custodial trustee may enforce the obligation to deliver custodial trust property and records and becomes responsible for each item as received.
  6. A beneficiary, the beneficiary's conservator, an adult member of the beneficiary's family, a guardian of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court to remove the custodial trustee for cause and designate a successor custodial trustee, to require the custodial trustee to furnish a bond or other security for the faithful performance of fiduciary duties, or for other appropriate relief.

    (1990, c. 264, § 55-34.13; 1997, c. 80; 2012, c. 614.)

§ 64.2-913. Expenses, compensation, and bond of custodial trustee.

Except as otherwise provided in the instrument creating the custodial trust, in an agreement with the beneficiary, or by court order, a custodial trustee:

  1. Is entitled to reimbursement from custodial trust property for reasonable expenses incurred in the performance of fiduciary services;
  2. Has a noncumulative election, to be made no later than six months after the end of each calendar year, to charge a reasonable compensation for fiduciary services performed during that year; and
  3. Need not furnish a bond or other security for the faithful performance of fiduciary duties.

    (1990, c. 264, § 55-34.14; 2012, c. 614.)

§ 64.2-914. Reporting and accounting by custodial trustee; determination of liability.

  1. Upon the acceptance of custodial trust property, the custodial trustee shall provide a written statement describing the custodial trust property and shall thereafter provide a written statement of the administration of the custodial trust property (i) once each year, (ii) upon request at reasonable times by the beneficiary or the beneficiary's legal representative, (iii) upon resignation or removal of the custodial trustee, and (iv) upon termination of the custodial trust. The statements shall be provided to the beneficiary or to the beneficiary's legal representative, if any. Upon termination of the beneficiary's interest, the custodial trustee shall furnish a current statement to the person to whom the custodial trust property is to be delivered.
  2. A beneficiary, the beneficiary's legal representative, an adult member of the beneficiary's family, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court for an accounting by the custodial trustee or the custodial trustee's legal representative.
  3. A successor custodial trustee may petition the court for an accounting by a predecessor custodial trustee.
  4. If a custodial trustee is removed, the court shall require an accounting and order delivery of the custodial trust property and records to the successor custodial trustee and the execution of all instruments required for transfer of the custodial trust property.
  5. In an action or proceeding under this chapter or in any other proceeding, the court may require or permit the custodial trustee or the custodial trustee's legal representative to account. The custodial trustee or the custodial trustee's legal representative may petition the court for approval of final accounts.
  6. On petition of the custodial trustee or any person who could petition for an accounting, the court, after notice to interested persons, may issue instructions to the custodial trustee or review the propriety of the acts of a custodial trustee or the reasonableness of compensation determined by the custodial trustee for the services of the custodial trustee or others.

    (1990, c. 264, § 55-34.15; 2012, c. 614.)

§ 64.2-915. Limitations of action against custodial trustee.

  1. Except as otherwise provided in subsection C, unless previously barred by adjudication, consent, or limitation, a claim for relief against a custodial trustee for accounting or breach of duty is barred as to a beneficiary, a person to whom custodial trust property is to be paid or delivered, or the legal representative of an incapacitated or deceased beneficiary or payee who (i) has received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within two years after receipt of the final account or statement or (ii) has not received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within three years after the termination of the custodial trust.
  2. Except as otherwise provided in subsection C, a claim for relief to recover from a custodial trustee for fraud, misrepresentation, or concealment related to the final settlement of the custodial trust or concealment of the existence of the custodial trust, is barred unless an action or proceeding to assert the claim is commenced within five years after the termination of the custodial trust.
  3. A claim for relief is not barred by this section if the claimant:
    1. Is a minor, until the earlier of two years after the claimant becomes an adult or dies;
    2. Is an incapacitated adult, until the earliest of two years after (i) the appointment of a conservator, (ii) the removal of the incapacity, or (iii) the death of the claimant; or
    3. Was an adult, now deceased, who was not incapacitated, until two years after the claimant's death.

      (1990, c. 264, § 55-34.16; 2012, c. 614.)

§ 64.2-916. Distribution on termination.

  1. Upon termination of a custodial trust, the custodial trustee shall transfer the unexpended custodial trust property as follows:
    1. To the beneficiary, if not incapacitated or deceased;
    2. To the conservator or such other recipient as is designated by the court for an incapacitated beneficiary; or
    3. Upon the beneficiary's death, in the following order:
      1. As last directed in writing signed by the deceased beneficiary while not incapacitated and received by the custodial trustee during the life of the deceased beneficiary;
      2. To the survivor of multiple beneficiaries if survivorship is provided for pursuant to § 64.2-905 ;
      3. As designated in the instrument creating the custodial trust; or
      4. To the estate of the deceased beneficiary.
  2. If, when the custodial trust would otherwise terminate, the distributee is incapacitated, the custodial trust continues for the use and benefit of the distributee as beneficiary until the incapacity is removed or the custodial trust is otherwise terminated.
  3. Death of the beneficiary does not terminate the power of the custodial trustee to discharge obligations of the custodial trustee or beneficiary incurred before the termination of the custodial trust.

    (1990, c. 264, § 55-34.17; 2012, c. 614.)

§ 64.2-917. Methods and forms for creating custodial trusts.

  1. If a transaction, including a declaration with respect to or a transfer of specific property, otherwise satisfies applicable law, the criteria of § 64.2-901 are satisfied by either:
    1. The execution and either delivery to the custodial trustee or recording of an instrument in substantially the following form: (1990, c. 264, § 55-34.18; 2012, c. 614.)

TRANSFER UNDER THE VIRGINIA UNIFORM CUSTODIAL TRUST ACT

I, .................... (name of transferor or name and representative capacity if a fiduciary), transfer to .................... (name of trustee other than transferor), as custodial trustee for .................... (name of beneficiary) as beneficiary and .................... (name of distributee) as distributee on termination of the trust in absence of direction by the beneficiary under the Virginia Uniform Custodial Trust Act, the following: .................... (insert a description of the custodial trust property legally sufficient to identify and transfer each item of property). Dated: .................... .................... (signature of transferor or fiduciary) 2. The execution and the recording or giving notice of its execution to the beneficiary of an instrument in substantially the following form:

DECLARATION OF TRUST UNDER THE VIRGINIA UNIFORM CUSTODIAL TRUST ACT

I, .................... (name of owner of property), declare that henceforth I hold as custodial trustee for .................... (name of beneficiary other than transferor) as beneficiary and .................... (name of distributee) as distributee on termination of the trust in absence of direction by the beneficiary under the Virginia Uniform Custodial Trust Act, the following: .................... (insert a description of the custodial trust property legally sufficient to identify and transfer each item of property). Dated: .................... .................... (signature of owner) 3. Either form may be modified by the owner to include, for example, a designation of an alternate or successor trustee or the recipient of the custodial property upon termination of the trust. B. Customary methods of transferring or evidencing ownership of property may be used to create a custodial trust, including any of the following: 1. Registration of a security in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 2. Delivery of a certificated security, or a document necessary for the transfer of an uncertificated security, together with any necessary endorsement, to an adult other than the transferor or to a trust company as custodial trustee, accompanied by an instrument in substantially the form prescribed in subdivision A 1; 3. Payment of money or transfer of a security held in the name of a broker or a financial institution or its nominee to a broker or financial institution for credit to an account in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 4. Registration of ownership of a life or endowment insurance policy or annuity contract with the issuer in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 5. Delivery of a written assignment to an adult other than the transferor or to a trust company whose name in the assignment is designated in substance by the words "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 6. Irrevocable exercise of power of appointment, pursuant to its terms, in favor of a trust company, an adult other than the donee of the power, or the donee who holds the power if the beneficiary is other than the donee, whose name in the appointment is designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 7. Delivery of a written notification or assignment of a right to future payment under a contract to an obligor that transfers the right under the contract to a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, whose name in the notification or assignment is designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 8. Execution, delivery, and recordation of a conveyance of an interest in real property in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; 9. Issuance of a certificate of title by an agency of a state or of the United States that evidences title to tangible personal property (i) issued in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act," or (ii) delivered to a trust company or an adult other than the transferor or endorsed by the transferor to that person, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act"; or 10. Execution and delivery of an instrument of gift to a trust company or an adult other than the transferor, designated in substance "as custodial trustee for .................... (name of beneficiary) under the Virginia Uniform Custodial Trust Act."

Research References. - Virginia Forms (Matthew Bender). No. 15-317 Transfer Under the Virginia Uniform Custodial Trust Act, et seq.

§ 64.2-918. Applicable law.

  1. This chapter applies to a transfer or declaration creating a custodial trust that refers to this chapter if, at the time of the transfer or declaration, the transferor, beneficiary, or custodial trustee is a resident of or has its principal place of business in the Commonwealth or custodial trust property is located in the Commonwealth. The custodial trust remains subject to this chapter despite a later change in residence or principal place of business of the transferor, beneficiary, or custodial trustee, or removal of the custodial trust property from the Commonwealth.
  2. A transfer made pursuant to an act of another state substantially similar to this chapter is governed by the law of that state and may be enforced in the Commonwealth.

    (1990, c. 264, § 55-34.19; 2012, c. 614.)

Chapter 10. Uniform Principal and Income Act.

Definitions and Fiduciary Duties.

Decedent's Estate or Terminating Income Interest.

Apportionment at Beginning and End of Income Interest.

Allocation of Receipts During Administration of Trust.

Receipts from Entities.

Receipts Not Normally Apportioned.

Receipts Normally Apportioned.

Allocation of Disbursements During Administration of Trust.

Miscellaneous Provisions.

Article 1. Definitions and Fiduciary Duties.

§ 64.2-1000. Definitions.

In this chapter:

"Accounting period" means a calendar year unless another 12-month period is selected by a fiduciary. The term includes a portion of a calendar year or other 12-month period that begins when an income interest begins or ends when an income interest ends.

"Beneficiary" includes, in the case of a decedent's estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.

"Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function.

"Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in Article 4 (§ 64.2-1009 et seq.).

"Income beneficiary" means a person to whom net income of a trust is or may be payable.

"Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion.

"Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.

"Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, or joint venture; government or governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

"Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates.

"Remainder beneficiary" means a person entitled to receive principal when an income interest ends.

"Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.

"Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.

(1999, c. 975, § 55-277.2; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Arizona: A.R.S. §§ 14-7401 to 14-7431.

Arkansas: A.C.A. §§ 28-70-101 to 28-70-605.

California: California Prob. Code §§ 16320 to 16375.

Colorado: C.R.S. §§ 15-1-401 to 15-1-436.

Connecticut: Conn. Gen. Stat. §§ 45a-542 to 45a-542ff.

Delaware: 12 Del. C. §§ 61-101 to 61-605.

District of Columbia: D.C. Code §§ 28-4801.01 through 28-4806.02.

Florida: Fla. Stat. §§ 738.101 to 738.804.

Hawaii: H.R.S. §§ 557A-101 to 557A-506.

Idaho: Idaho Code §§ 68-10-101 to 68-10-605.

Indiana: Burns Ind. Code Ann. §§ 30-2-14-0.1 to 30-2-14-44.

Iowa: Iowa Code §§ 637.101 through 637.701.

Kansas: K.S.A. §§ 58-9-100 to 58-9-606.

Kentucky: K.R.S. §§ 386.450 to 386.504.

Louisiana: La. R.S. § 9:2141 et seq.

Maine: 18-A A.M.R.S. §§ 7-701 to 7-774.

Maryland: Md. Estates and Trusts Code Ann. §§ 15-501 to 15-530.

Michigan: M.C.L.S. §§ 551.501 to 555.1005.

Minnesota: Minn. Stat. §§ 501C.1101 to 501C.1117.

Missouri: §§ 456.700 to 456.820 R.S.Mo.

Montana: Mont. Code Anno. §§ 72-34-421 to 72-34-453.

Nebraska: R.R.S. Neb. §§ 30-3116 to 30-3149.

Nevada: Nev. Rev. Stat. Ann. §§ 164.780 to 164.925.

New Hampshire: R.S.A. §§ 564-C:1-101 to 564-C:6-602.

New Jersey: N.J. Stat. §§ 3B:19B-1 to 3B:19B-31.

New Mexico: N.M. Stat. Ann. §§ 46-3A-101 to 46-3A-603.

New York: NY CLS EPTL §§ 11-A-1.1 to 11-A-6.4.

North Carolina: N.C. Gen. Stat. §§ 37A-1-101 to 37A-6-602.

North Dakota: N.D. Cent. Code §§ 59-04.2-01 to 59-04.2-30.

Ohio: Page's O.R.C. Ann. § 5812.01 to 5812.52.

Oklahoma: 60 Okl. St. §§ 175.101 to 175.602.

Oregon: O.R.S. §§ 129.200 to 129.450.

Pennsylvania: 20 Pa.C.S. §§ 8101 to 8191.

South Carolina: S.C. Code Ann. §§ 62-7-901 to 62-7-932.

South Dakota: S.D. Codified Laws §§ 55-13A-101 to 55-13A-602.

Tennessee: Tenn. Code Ann. §§ 35-6-101 to 35-6-602.

Texas: Tex. Prop. Code §§ 116.001 to 116.206.

Utah: Utah Code Ann. §§ 22-3-101 to 22-3-604.

Vermont: 14 V.S.A. §§ 3321 to 3376.

West Virginia: W. Va. Code §§ 44B-1-101 to 44B-6-604.

Wisconsin: Wis. Stat. §§ 701.1101 through 701.1136.

Wyoming: Wyo. Stat. §§ 2-3-801 to 2-3-834.

Effective date. - This chapter became effective January 1, 2000.

Editor's note. - Acts 2012, c. 614, effective October 1, 2012, recodified Titles 26 , 31, and 64.1, as well as Chapters 10 ( § 37.2-1000 et seq.) and 10.1 ( § 37.2-1031 et seq.) of Title 37.2 and Chapters 2.1 ( § 55-34.1 et seq.), 15 ( § 55-268.11et seq.), 15.1 ( § 55-277.1 et seq.), 16 ( § 55-278 et seq.), 22 ( § 55-401 et seq.), and 31 ( § 55-541.01 et seq.) of Title 55. In addition to revision by Acts 2012, c. 614, the recodified sections were also amended by other acts passed at the 2012 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations and annotations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Law review. - For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 15-106 Will Giving Entire Estate to Spouse with Trust for Children in the Event Spouse Predeceases Testator; No. 15-227 Residuary Trust for Wife and Children, et seq.

§ 64.2-1001. Fiduciary duties; general principles.

  1. In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of Articles 2 (§ 64.2-1004 et seq.) and 3 (§ 64.2-1006 et seq.), a fiduciary:
    1. Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this chapter;
    2. May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this chapter;
    3. Shall administer a trust or estate in accordance with this chapter if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
    4. Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income.
  2. In exercising the power to adjust under subsection A of § 64.2-1002 or a discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries.
  3. The power of a fiduciary to allocate receipts and expenses between income and principal, whether incorporated by reference, expressly conferred by the terms of a will or trust, or granted by a court pursuant to § 64.2-106 , does not alone constitute a discretionary power of administration for purposes of this section. (1999, c. 975, § 55-277.3; 2012, c. 614.)

CASE NOTES

Construction. - Uniform Principal and Income Act, § 55-277.33, means that Chapter 15.1 of Title 55, styled Uniform Principal and Income Act, applies as a whole to any trust in existence on January 1, 2000, unless the trust instrument itself expressly states that the Act does not apply, and when the trust instrument so states, no part of the Uniform Principal and Income Act governs such a trust; in contrast to § 55-277.33, § 55-277.3, does not contain language requiring express rejection of the Uniform Principal and Income Act's default rules for allocating receipts and disbursements between principal and income. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156 (2011)(decided under prior law).

Proceeds encompassed condemnation compensation. - Circuit court did not err by concluding that condemnation compensation had to be allocated as income to a trust pursuant to its terms because the term "proceeds," as used in the trust, encompassed the condemnation compensation at issue, and the Uniform Principal and Income Act, subdivision 4 of § 55-277.13, used the term "proceeds" when referring to the compensation awarded in exchange for property taken by eminent domain; the trust provisions directed that the trustee could not sell the trust property except to a condemnor pursuant to a notice of condemnation, and because the grantor specifically included in gross income all funds received from the rental of the trust property and/or generated from or by the trust property and/or any proceeds from the trust property, the grantor allocated those receipts to income, and under the Act, subdivision A of § 55-277.3, the trustee was required to administer the trust in accordance with its terms. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156 (2011)(decided under prior law).

CIRCUIT COURT OPINIONS

Fulfill the intent of the testator. - While neither the Prudent Investor Act not the Uniform Principal and Income Act demanded that a beneficiary be paid a reasonable income, they did contemplate that trusts would be managed so as to fulfill the intent of the testator, which might require that a reasonable net income be provided. Hartman v. Walker, 73 Va. Cir. 245, 2007 Va. Cir. LEXIS 212 (Charlottesville 2007)(decided under prior law).

Beneficiaries impartially favored. - While neither the Prudent Investor Act, § 26-45.3 et seq., nor the Uniform Principal and Income Act, § 55-277.1 et seq., demanded that a beneficiary be paid a reasonable income, they did contemplate that beneficiaries would be impartially favored. Hartman v. Walker, 73 Va. Cir. 245, 2007 Va. Cir. LEXIS 212 (Charlottesville 2007)(decided under prior law).

§ 64.2-1002. Fiduciary's power to adjust.

  1. A fiduciary may adjust between principal and income to the extent the fiduciary considers necessary if the fiduciary invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or shall be distributed to a beneficiary by referring to the trust's income, and the fiduciary determines, after applying the rules in subsection A of § 64.2-1001 , that the fiduciary is unable to comply with subsection B of § 64.2-1001 .
  2. In deciding whether and to what extent to exercise the power conferred by subsection A, a fiduciary shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant:
    1. The nature, purpose, and expected duration of the trust;
    2. The intent of the settlor;
    3. The identity and circumstances of the beneficiaries;
    4. The needs for liquidity, regularity of income, and preservation and appreciation of capital;
    5. The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the fiduciary or received from the settlor;
    6. The net amount allocated to income under the other sections of this chapter and the increase or decrease in the value of the principal assets, which the fiduciary may estimate as to assets for which market values are not readily available;
    7. Whether and to what extent the terms of the trust give the fiduciary the power to invade principal or accumulate income or prohibit the fiduciary from invading principal or accumulating income, and the extent to which the fiduciary has exercised a power from time to time to invade principal or accumulate income;
    8. The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
    9. The anticipated tax consequences of an adjustment.
  3. A fiduciary may not make an adjustment:
    1. That diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the fiduciary did not have the power to make the adjustment;
    2. That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
    3. That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
    4. From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
    5. If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the fiduciary did not possess the power to make an adjustment;
    6. If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a fiduciary or appoint a fiduciary, or both, and the assets would not be included in the estate of the individual if the fiduciary did not possess the power to make an adjustment;
    7. If the fiduciary is a beneficiary of the trust; or
    8. If the fiduciary is not a beneficiary, but the adjustment would benefit the fiduciary directly or indirectly.
  4. If subdivision C 5, 6, 7, or 8 applies to a fiduciary and there is more than one fiduciary, a cofiduciary to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining fiduciary or fiduciaries is not permitted by the terms of the trust. Any beneficiary or fiduciary may petition the circuit court for appointment of a cofiduciary who would be permitted to make an adjustment not permitted by the other fiduciary or fiduciaries.
  5. A fiduciary may release the entire power conferred by subsection A or may release only the power to adjust from income to principal or the power to adjust from principal to income if the fiduciary is uncertain about whether possessing or exercising the power will cause a result described in subdivisions C 1 through 6 or subdivision C 8 or if the fiduciary determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection C. The release may be permanent or for a specified period, including a period measured by the life of an individual.
  6. Terms of a trust that limit the power of a fiduciary to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the fiduciary the power of adjustment conferred by subsection A.
  7. As used in this section and the application of this section elsewhere in this chapter, the term "trust" includes the assets under the control or management of a personal representative.

    (1999, c. 975, § 55-277.4; 2005, c. 935; 2012, c. 614.)

§ 64.2-1003. Total return unitrust.

  1. As used in this section:

    "Disinterested person" means a person who is not a "related or subordinate party," as that term is defined in § 672(c) of the Internal Revenue Code (hereinafter referred to in this section as the "I.R.C.," and all such references shall include the specific section referred to and any successor provisions thereof) with respect to the person then acting as trustee of the trust, and excludes the grantor of the trust and any interested trustee.

    "Grantor" means an individual who created an inter vivos or a testamentary trust.

    "Grantor-created unitrust" means a trust created either by an inter vivos or a testamentary instrument that provides that the trust shall be administered in the manner of a total return unitrust as provided in this section.

    "Income trust" means a trust, created by either an inter vivos or a testamentary instrument, that directs or permits the trustee to distribute the net income of the trust to one or more persons, either in fixed proportions or in amounts or proportions determined by the trustee, and regardless of whether the trust directs or permits the trustee to distribute the principal of the trust to one or more such persons.

    "Interested distributee" means a person to whom distributions of income or principal can currently be made who has the power to remove the existing trustee and designate as successor a person who may be a "related or subordinate party" as defined in I.R.C. § 672(c), with respect to such distributee.

    "Interested trustee" means (i) an individual trustee to whom the net income or principal of the trust can currently be distributed or would be distributed if the trust were then to terminate and be distributed; (ii) any trustee who may be removed and replaced by an interested distributee; or (iii) an individual trustee whose legal obligation to support a beneficiary may be satisfied by distributions of income and principal of the trust.

    "Total return unitrust" means (i) an income trust that has been converted under and meets the provisions of this section; or (ii) a grantor-created unitrust.

    "Trustee" means all persons acting as trustee of the trust, except where expressly noted otherwise, whether acting in their discretion or at the direction of one or more persons acting in a fiduciary capacity.

    "Unitrust amount" means an amount computed as a percentage of the fair market value of the trust.

  2. A trustee, other than an interested trustee, or where two persons are acting as trustees the trustee that is not an interested trustee, or where more than two persons are acting as trustee a majority of the trustees who are not an interested trustee, may, in his sole discretion and without judicial approval, (i) convert an income trust to a total return unitrust; (ii) convert a total return unitrust to an income trust; or (iii) change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust if:
    1. The trustee adopts a written policy for the trust providing: (i) in the case of a trust being administered as an income trust, that future distributions from the trust will be unitrust amounts rather than net income; (ii) in the case of a trust being administered as a total return unitrust, that future distributions from the trust will be net income rather than unitrust amounts; or (iii) that the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust will be changed as stated in the policy;
    2. The trustee sends notice in a manner authorized under § 64.2-707 of his intention to take such action, along with copies of such written policy and this section, to (i) the grantor of the trust, if living; (ii) without regard to the exercise of any power of appointment, the qualified beneficiaries of the trust then determined under §§ 64.2-701 and 64.2-708 , other than the Attorney General; and (iii) all persons acting as advisor or protector of the trust. The representation provisions of §§ 64.2-714 , 64.2-716 , 64.2-717 , and 64.2-718 shall apply to notice under this subdivision;
    3. At least one member of each class of qualified beneficiaries receiving notice under clause (ii) of subdivision 2 is (i) legally competent, (ii) in the case of a charitable organization, then existing, or (iii) represented in the manner set forth in subdivision 2; and
    4. No person receiving such notice objects, by written instrument delivered to the trustee, to the proposed action of the trustee within 30 days of receipt of such notice.
  3. If there is no trustee of the trust other than an interested trustee, the interested trustee or, where two or more persons are acting as trustee and are interested trustees, a majority of such interested trustees may, in his sole discretion and without judicial approval, (i) convert an income trust to a total return unitrust; (ii) convert a total return unitrust to an income trust; or (iii) change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust if:
    1. The trustee adopts a written policy for the trust providing: (i) in the case of a trust being administered as an income trust, that future distributions from the trust will be unitrust amounts rather than net income; (ii) in the case of a trust being administered as a total return unitrust, that future distributions from the trust will be net income rather than unitrust amounts; or (iii) that the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust will be changed as stated in the policy;
    2. The trustee appoints a disinterested person who, in his sole discretion but acting in a fiduciary capacity: (i) in the case of conversion to a total return unitrust, determines for the trustee (a) the percentage to be used to calculate the unitrust amount, (b) the method to be used in determining the fair market value of the trust, and (c) which assets, if any, are to be excluded in determining the unitrust amount; and (ii) determines for the trustee that conversion is in the best interests of the trust;
    3. The trustee sends notice in a manner authorized under § 64.2-707 of his intention to take such action, along with copies of such written policy and this section, to (i) the grantor of the trust, if living; (ii) without regard to the exercise of any power of appointment, the qualified beneficiaries of the trust then determined under §§ 64.2-701 and 64.2-708 , other than the Attorney General; and (iii) all persons acting as advisor or protector of the trust. The representation provisions of §§ 64.2-714 , 64.2-716 , 64.2-717 , and 64.2-718 shall apply to notice under this subdivision;
    4. At least one member of each class of qualified beneficiaries receiving notice under clause (ii) of subdivision 3 is (i) legally competent, (ii) in the case of a charitable organization, then existing, or (iii) represented in the manner set forth in subdivision 3; and
    5. No person receiving such notice objects, by written instrument delivered to the trustee, to the proposed action of the trustee or the determinations of the disinterested person within 30 days of receipt of such notice.
  4. If any trustee desires to convert an income trust to a total return unitrust, convert a total return unitrust to an income trust, or change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust but does not have the ability to or elects not to do it under the provisions of subsection B or C, the trustee may petition the circuit court in which the trustee qualified, or if there is no such qualification, the circuit court for the jurisdiction in which the trustee or beneficiary resides, or if the trustee is a corporate trustee and there is no resident beneficiary, the circuit court where the trust account is administered, for such order as the trustee deems appropriate. In the event, however, there is only one trustee of such trust and such trustee is an interested trustee or in the event there are two or more trustees of such trust and a majority of them are interested trustees, the court, in its own discretion or on the petition of such trustee or trustees or any person interested in the trust, may appoint a disinterested person who, acting in a fiduciary capacity, shall present such information to the court as shall be necessary to enable the court to make its determinations hereunder. Any qualified beneficiary of the trust then determined under §§ 64.2-701 and 64.2-708 , other than the Attorney General, may also petition such circuit court to convert an income trust to a total return unitrust, convert a total return unitrust to an income trust, or change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust assets.
  5. The fair market value of the trust shall be determined at least annually, using such valuation date or dates or averages of valuation dates as are deemed appropriate. Any asset for which a fair market value cannot be readily ascertained shall be valued using such valuation methods as are deemed reasonable and appropriate. Any such asset may be excluded from valuation, provided all income received with respect to such asset is distributed to the extent distributable in accordance with the terms of the governing instrument.
  6. The percentage to be used in determining the unitrust amount shall be a reasonable current return from the trust, in any event no less than three percent nor more than five percent, either as provided by the grantor in the governing instrument in the case of a grantor-created unitrust, or otherwise taking into account the intentions of the grantor of the trust as expressed in the governing instrument, the needs of the beneficiaries, general economic conditions, projected current earnings and appreciation for the trust, and projected inflation and its impact on the trust.
  7. Following the conversion of an income trust to a total return unitrust, or upon the creation of a grantor-created unitrust, the trustee:
    1. Shall treat the unitrust amount as if it were net income of the trust for purposes of determining the amount available, from time to time, for distribution from the trust, and the distribution of the unitrust amount shall be considered in full satisfaction of the distribution of all of the net income of the trust;
    2. May allocate to trust income for each taxable year of the trust, or portion thereof:
      1. Net short-term capital gain described in I.R.C. § 1222(5), for such year or portion thereof, but only to the extent that the amount so allocated together with all other amounts allocated to trust income for such year or portion thereof does not exceed the unitrust amount for such year or portion thereof; and
      2. Net long-term capital gain described in I.R.C. § 1222(7), for such year or portion thereof, but only to the extent that the amount so allocated together with all other amounts, including amounts described in subdivision 2 a, allocated to trust income for such year, or portion thereof, does not exceed the unitrust amount for such year, or portion thereof; and
    3. Shall treat the unitrust amount as if it were income of the trust for purposes of determining the amount of trustee compensation where the governing instrument directs that such compensation be based wholly or partially on income.
  8. In administering a total return unitrust, the trustee may, in his sole discretion but subject to the provisions of the governing instrument, determine (i) if the trust is converted to a total return unitrust, the effective date of the conversion; (ii) the timing of distributions, including provisions for prorating a distribution for a short year in which a beneficiary's right to payments commences or ceases; (iii) whether distributions are to be made in cash or in kind or partly in cash and partly in kind; (iv) if the trust is converted to an income trust, the effective date of such conversion; and (v) such other administrative matters as may be necessary or appropriate to carry out the purposes of this section.
  9. Conversion to a total return unitrust under the provisions of this section shall not affect any other provision of the governing instrument, if any, regarding distributions of principal.
  10. Subject to the provisions of the governing instrument, this section shall be construed as pertaining to the administration of a trust and shall be available to any trust that is administered under Virginia law, regardless of the date the trust was created, unless:
    1. The governing instrument reflects an intention that the current beneficiary or beneficiaries are to receive an amount other than a reasonable current return from the trust;
    2. The trust is a pooled income fund described in I.R.C. § 642(c)(5), or a charitable-remainder trust described in I.R.C. § 664(d); or
    3. The governing instrument expressly prohibits use of this section by specific reference to this section or expressly reflects the grantor's intent that net income not be calculated as a unitrust amount. A provision in the governing instrument that "The provisions of § 64.2-1003 , Code of Virginia, as amended, or any corresponding provision of future law, shall not be used in the administration of this trust," or "My trustee shall not determine the distributions to the income beneficiary as a unitrust amount," or similar words reflecting such intent shall be sufficient to preclude the use of this section.
  11. Any trustee or disinterested person who in good faith takes or fails to take any action under this section shall not be liable to any person affected by such action or inaction, regardless of whether such person received written notice as provided in this section and regardless of whether such person was under a legal disability at the time of the delivery of such notice. Such person's exclusive remedy shall be to obtain an order of the court directing the trustee to convert an income trust to a total return unitrust, to convert from a total return unitrust to an income trust, or to change the percentage used to calculate the unitrust amount.

    (2004, c. 639, § 55-277.4:1; 2009, c. 477; 2012, c. 614.)

Article 2. Decedent's Estate or Terminating Income Interest.

§ 64.2-1004. Determination and distribution of net income.

After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:

  1. A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in Articles 3 (§ 64.2-1006 et seq.) through 5 (§ 64.2-1024 et seq.) that apply to trustees and the rules in subdivision 5. The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.
  2. A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in Articles 3 through 5 that apply to trustees and by:
    1. Including in net income all income from property used to discharge liabilities;
    2. Paying from income or principal, in the fiduciary's discretion, fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and
    3. Paying from principal all other disbursements made or incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law.
  3. A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under subdivision 2 or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will.
  4. A fiduciary shall distribute the net income remaining after distributions required by subdivision 3 in the manner described in § 64.2-1005 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust.
  5. A fiduciary may not reduce principal or income receipts from property described in subdivision 1 because of a payment described in § 64.2-1024 or 64.2-1025 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed. (1999, c. 975, § 55-277.5; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 15-227 Residuary Trust for Wife and Children, et seq.; No. 15-302 Revocable Inter Vivos Trust with Bypass Trust.

§ 64.2-1005. Distribution to residuary and remainder beneficiaries.

  1. Each beneficiary described in subdivision 4 of § 64.2-1004 is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.
  2. In determining a beneficiary's share of net income, the following rules apply:
    1. The beneficiary is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations.
    2. The beneficiary's fractional interest in the undistributed principal assets shall be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust.
    3. The beneficiary's fractional interest in the undistributed principal assets shall be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation.
    4. The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
  3. If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.
  4. A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.

    (1999, c. 975, § 55-277.6; 2012, c. 614.)

Article 3. Apportionment at Beginning and End of Income Interest.

§ 64.2-1006. When right to income begins and ends.

  1. An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
  2. An asset becomes subject to a trust:
    1. On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life;
    2. On the date of a testator's death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or
    3. On the date of an individual's death in the case of an asset that is transferred to a fiduciary by a third party because of the individual's death.
  3. An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection D, even if there is an intervening period of administration to wind up the preceding income interest.
  4. An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.

    (1999, c. 975, § 55-277.7; 2012, c. 614.)

§ 64.2-1007. Apportionment of receipts and disbursements when decedent dies or income interest begins.

  1. A trustee shall allocate an income receipt or disbursement other than one to which subdivision 1 of § 64.2-1004 applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
  2. A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement shall be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins shall be allocated to principal and the balance shall be allocated to income.
  3. An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this chapter. Distributions to shareholders or other owners from an entity to which § 64.2-1009 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that shall be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals. (1999, c. 975, § 55-277.8; 2012, c. 614.)

§ 64.2-1008. Apportionment when income interest ends.

  1. In this section, "undistributed income" means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.
  2. When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked shall be added to principal.
  3. When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements.

    (1999, c. 975, § 55-277.9; 2012, c. 614.)

Article 4. Allocation of Receipts During Administration of Trust.

Part 1.

Receipts from Entities.

§ 64.2-1009. Character of receipts.

  1. In this section, "entity" means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which § 64.2-1010 applies, a business or activity to which § 64.2-1011 applies, or an asset-backed security to which § 64.2-1023 applies.
  2. Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.
  3. A trustee shall allocate the following receipts from an entity to principal:
    1. Property other than money;
    2. Money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;
    3. Money received in total or partial liquidation of the entity; and
    4. Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.
  4. Money is received in partial liquidation:
    1. To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
    2. If the total amount of money and property received in a distribution or series of related distributions is greater than 20 percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt.
  5. Money is not received in partial liquidation, nor may it be taken into account under subdivision D 2, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary shall pay on taxable income of the entity that distributes the money.
  6. A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.

    (1999, c. 975, § 55-277.10; 2012, c. 614.)

§ 64.2-1010. Distribution from trust or estate.

A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, § 64.2-1009 or 64.2-1023 applies to a receipt from the trust.

(1999, c. 975, § 55-277.11; 2012, c. 614.)

§ 64.2-1011. Business and other activities conducted by trustee.

  1. If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
  2. A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts shall be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.
  3. Activities for which a trustee may maintain separate accounting records include:
    1. Retail, manufacturing, service, and other traditional business activities;
    2. Farming;
    3. Raising and selling livestock and other animals;
    4. Management of rental properties;
    5. Extraction of minerals and other natural resources;
    6. Timber operations; and
    7. Activities to which § 64.2-1022 applies. (1999, c. 975, § 55-277.12; 2012, c. 614.)

Part 2.

Receipts Not Normally Apportioned.

§ 64.2-1012. Principal receipts.

A trustee shall allocate to principal:

  1. To the extent not allocated to income under this chapter, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;
  2. Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this article;
  3. Amounts recovered from third parties to reimburse the trust because of disbursements described in subdivision A 7 of § 64.2-1025 or for other reasons to the extent not based on the loss of income;
  4. Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
  5. Net income received in an accounting period during which there is no beneficiary to whom a trustee may or shall distribute income; and
  6. Other receipts as provided in §§ 64.2-1016 through 64.2-1023 . (1999, c. 975, § 55-277.13; 2012, c. 614.)

CASE NOTES

Proceeds encompassed condemnation compensation. - Circuit court did not err by concluding that condemnation compensation had to be allocated as income to a trust pursuant to its terms because the term "proceeds," as used in the trust, encompassed the condemnation compensation at issue, and the Uniform Principal and Income Act, subdivision 4 of § 55-277.13, used the term "proceeds" when referring to the compensation awarded in exchange for property taken by eminent domain; the trust provisions directed that the trustee could not sell the trust property except to a condemnor pursuant to a notice of condemnation, and because the grantor specifically included in gross income all funds received from the rental of the trust property and/or generated from or by the trust property and/or any proceeds from the trust property, the grantor allocated those receipts to income, and under the Act, subdivision A 1 of § 55-277.3, the trustee was required to administer the trust in accordance with its terms. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156 (2011)(decided under former § 55-277.13).

§ 64.2-1013. Rental property.

To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, shall be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.

(1999, c. 975, § 55-277.14; 2012, c. 614.)

§ 64.2-1014. Obligation to pay money.

  1. An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, shall be allocated to income without any provision for amortization of premium.
  2. A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust shall be allocated to income.
  3. This section does not apply to an obligation to which § 64.2-1017 , 64.2-1018 , 64.2-1019 , 64.2-1020 , 64.2-1022 , or 64.2-1023 applies. (1999, c. 975, § 55-277.15; 2012, c. 614.)

§ 64.2-1015. Insurance policies and similar.

  1. Except as otherwise provided in subsection B, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.
  2. A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to § 64.2-1011 , loss of profits from a business.
  3. This section does not apply to a contract to which § 64.2-1017 applies. (1999, c. 975, § 55-277.16; 2012, c. 614.)

Part 3.

Receipts Normally Apportioned.

§ 64.2-1016. Insubstantial allocations not required.

If a trustee determines that an allocation between principal and income required by § 64.2-1017 , 64.2-1018 , 64.2-1019 , 64.2-1020 , or 64.2-1023 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in subsection C of § 64.2-1002 applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in subsection D of § 64.2-1002 and may be released for the reasons and in the manner described in subsection E of § 64.2-1002. An allocation is presumed to be insubstantial if:

  1. The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than 10 percent; or
  2. The value of the asset producing the receipt for which the allocation would be made is less than 10 percent of the total value of the trust's assets at the beginning of the accounting period.

    (1999, c. 975, § 55-277.17; 2012, c. 614.)

§ 64.2-1017. Deferred compensation, annuities, and similar payments.

  1. In this section, "payment" means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer, including a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan. For purposes of subsections D, E, F, and G, the term also includes any payment from a separate fund, regardless of the reason for the payment.
  2. To the extent that a payment is characterized as interest or a dividend or a payment made in lieu of interest or a dividend, a trustee shall allocate it to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.
  3. If no part of a payment is characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income 10 percent of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not "required to be made" to the extent that it is made because the trustee exercises a right of withdrawal.
  4. Except as otherwise provided in subsection E, subsections F and G apply, and subsections B and C do not apply, in determining the allocation of a payment made from a separate fund to:
    1. A trust to which an election to qualify for a marital deduction under § 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or
    2. A trust that qualifies for the marital deduction under § 2056(b)(5) of the Internal Revenue Code of 1986, as amended.
  5. Subsections D, F, and G do not apply if and to the extent that the series of payments would, without the application of subsection D, qualify for the marital deduction under § 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.
  6. A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to this chapter. Upon request of the surviving spouse, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance of the payment to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.
  7. If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal at least four percent of the fund's value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund's value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under § 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the accounting period for which the computation is made.
  8. Subsections D, E, F, and G apply to a trust described in subsection D on and after the following dates: (i) if the trust is not funded as of July 1, 2009, the date of the decedent's death, (ii) if the trust is initially funded in the calendar year beginning January 1, 2009, the date of the decedent's death, or (iii) if the trust is not described in (i) or (ii), January 1, 2009.
  9. This section does not apply to a payment to which § 64.2-1018 applies. (1999, c. 975, § 55-277.18; 2009, c. 477; 2012, c. 614.)

§ 64.2-1018. Liquidating asset.

  1. In this section, "liquidating asset" means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, or royalty right, and a right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to § 64.2-1017 , resources subject to § 64.2-1019 , timber subject to § 64.2-1020 , an activity subject to § 64.2-1022 , an asset subject to § 64.2-1023 , or any asset for which the trustee establishes a reserve for depreciation under § 64.2-1026 .
  2. A trustee shall allocate to income 10 percent of the receipts from a liquidating asset and the balance to principal.

    (1999, c. 975, § 55-277.19; 2012, c. 614.)

§ 64.2-1019. Minerals, water, and other natural resources.

  1. To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:
    1. If received as nominal delay rental or nominal annual rent on a lease, a receipt shall be allocated to income.
    2. If received from a production payment, a receipt shall be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance shall be allocated to principal.
    3. If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, 90 percent shall be allocated to principal and the balance to income.
    4. If an amount is received from a working interest or any other interest not provided for in subdivision 1, 2, or 3, 90 percent of the net amount received shall be allocated to principal and the balance to income.
  2. An amount received on account of an interest in water that is renewable shall be allocated to income. If the water is not renewable, 90 percent of the amount shall be allocated to principal and the balance to income.
  3. This chapter applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
  4. If a trust owns an interest in minerals, water, or other natural resources on January 1, 2000, the trustee may allocate receipts from the interest as provided in this chapter or in the manner used by the trustee before January 1, 2000. If the trust acquires an interest in minerals, water, or other natural resources after January 1, 2000, the trustee shall allocate receipts from the interest as provided in this chapter.

    (1999, c. 975, § 55-277.20; 2012, c. 614.)

§ 64.2-1020. Timber.

  1. To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:
    1. To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
    2. To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;
    3. To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in subdivision 1 or 2; or
    4. To principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to subdivision 1, 2, or 3.
  2. In determining net receipts to be allocated pursuant to subsection A, a trustee shall deduct and transfer to principal a reasonable amount for depletion.
  3. This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.
  4. If a trust owns an interest in timberland on January 1, 2000, the trustee may allocate net receipts from the sale of timber and related products as provided in this chapter or in the manner used by the trustee before January 1, 2000. If the trust acquires an interest in timberland after January 1, 2000, the trustee shall allocate net receipts from the sale of timber and related products as provided in this chapter.

    (1999, c. 975, § 55-277.21; 2012, c. 614.)

§ 64.2-1021. Property not productive of income.

  1. If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under § 64.2-1002 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by subsection A of § 64.2-1002 . The trustee may decide which action or combination of actions to take.
  2. In cases not governed by subsection A, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

    (1999, c. 975, § 55-277.22; 2012, c. 614.)

§ 64.2-1022. Derivatives and options.

  1. In this section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments that gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.
  2. To the extent that a trustee does not account under § 64.2-1011 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
  3. If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option shall be allocated to principal. An amount paid to acquire the option shall be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, shall be allocated to principal.

    (1999, c. 975, § 55-277.23; 2012, c. 614.)

§ 64.2-1023. Asset-backed securities.

  1. In this section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which § 64.2-1009 or 64.2-1017 applies.
  2. If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment that the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
  3. If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the security over more than one accounting period, the trustee shall allocate 10 percent of the payment to income and the balance to principal.

    (1999, c. 975, § 55-277.24; 2012, c. 614.)

Article 5. Allocation of Disbursements During Administration of Trust.

§ 64.2-1024. Disbursements from income.

A trustee shall make the following disbursements from income to the extent that they are not disbursements to which subdivision 2 b or 2 c of § 64.2-1004 applies:

  1. One-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;
  2. One-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;
  3. All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and
  4. Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

    (1999, c. 975, § 55-277.25; 2012, c. 614.)

§ 64.2-1025. Disbursements from principal.

  1. A trustee shall make the following disbursements from principal:
    1. The remaining one-half of the disbursements described in subdivisions 1 and 2 of § 64.2-1024 ;
    2. All of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;
    3. Payments on the principal of a trust debt;
    4. Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
    5. Premiums paid on a policy of insurance not described in subdivision 4 of § 64.2-1024 of which the trust is the owner and beneficiary;
    6. Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and
    7. Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters.
  2. If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.
  3. Notwithstanding any other provision of law and unless the governing instrument provides to the contrary, a trustee may pay from the principal of the trust from time to time (i) the federal or state income taxes, or both, imposed upon the settlor on income of the trust that is not distributed to the settlor, or (ii) such amounts that are required to reimburse the settlor for any federal or state income taxes, or both, imposed on the settlor on income of the trust that is not distributed to the settlor. The trustee shall not have the power to make payments pursuant to this subsection with respect to any trust where a charitable income, estate, or gift tax deduction has been allowed, in whole or in part, for the contributions to such trust if the exercise of such power would limit or reduce the amount of such deduction.

    (1999, c. 975, § 55-277.26; 2012, cc. 614, 718.)

Editor's note. - Acts 2012, c. 718 amended former § 55-277.26, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendment by Acts 2012, c. 718 has been given effect in this section by adding subsection C.

§ 64.2-1026. Transfers from income to principal for depreciation.

  1. In this section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.
  2. A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:
    1. Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
    2. During the administration of a decedent's estate; or
    3. Under this section if the trustee is accounting under § 64.2-1011 for the business or activity in which the asset is used.
  3. An amount transferred to principal need not be held as a separate fund.

    (1999, c. 975, § 55-277.27; 2012, c. 614.)

§ 64.2-1027. Transfers from income to reimburse principal.

  1. If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
  2. Principal disbursements to which subsection A applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:
    1. An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
    2. A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
    3. Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions;
    4. Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
    5. Disbursements described in subdivision A 7 of § 64.2-1025 .
  3. If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection A.

    (1999, c. 975, § 55-277.28; 2012, c. 614.)

§ 64.2-1028. Income taxes.

  1. A tax required to be paid by a trustee based on receipts allocated to income shall be paid from income.
  2. A tax required to be paid by a trustee based on receipts allocated to principal shall be paid from principal, even if the tax is called an income tax by the taxing authority.
  3. A tax required to be paid by a trustee on the trust's share of an entity's taxable income shall be paid:
    1. From income to the extent that receipts from the entity are allocated only to income;
    2. From principal to the extent that receipts from the entity are allocated only to principal;
    3. Proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and
    4. From principal to the extent that the tax exceeds the total receipts from the entity.
  4. After applying subsections A through C, the trustee shall adjust income or principal receipts to the extent that the trust's taxes are reduced because the trust receives a deduction for payments made to a beneficiary.

    (1999, c. 975, § 55-277.29; 2009, c. 477; 2012, c. 614.)

§ 64.2-1029. Adjustments between principal and income because of taxes.

  1. A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries that arise from:
    1. Elections and decisions, other than those described in subsection B, that the fiduciary makes from time to time regarding tax matters;
    2. An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or
    3. The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.
  2. If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement shall equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust, or beneficiary whose income taxes are reduced shall be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.

    (1999, c. 975, § 55-277.30; 2012, c. 614.)

Article 6. Miscellaneous Provisions.

§ 64.2-1030. Expenses and receipts; nontrust estates.

  1. The provisions of this chapter concerning the allocation and apportionment of receipts and expenses to principal and income shall govern the allocation and apportionment of receipts and expenses between a tenant and a remainderman where no trust has been created, except as otherwise provided in subsection B or C, and except for any provision that requires the exercise of a discretionary power by a trustee.
  2. The cost of, or special taxes or assessments for, an improvement representing an addition of value to property forming part of the principal shall be paid by the tenant, when such improvement cannot reasonably be expected to outlast the estate of the tenant. In all other cases a portion thereof only shall be paid by the tenant, while the remainder shall be paid by the remainderman. Such portion shall be ascertained by taking that percentage of the total that is found by dividing the present value of the tenant's estate by the present value of an estate corresponding to the reasonably expected duration of the improvement. The computation of present values of the estate shall be made on the expectancy basis set forth in § 55.1-500 and no other evidence of duration or expectancy shall be considered. When either tenant or remainderman has incurred an expense for the benefit of his own estate and without the consent or agreement of the other, he shall pay such expense in full.
  3. The rules of this section are subject to any agreement of the parties.

    (1999, c. 975, § 55-277.31; 2012, c. 614.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-500" for "55-269.1."

§ 64.2-1031. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(1999, c. 975, § 55-277.32; 2012, c. 614.)

§ 64.2-1032. Application of chapter to existing trusts, decedent's estates, and nontrust estates.

This chapter applies to every trust, decedent's estate, or nontrust estate existing on January 1, 2000, except as otherwise expressly provided in the will or the terms of the trust, any other governing document, or in this chapter.

(1999, c. 975, § 55-277.33; 2012, c. 614.)

CASE NOTES

Construction. - Uniform Principal and Income Act, § 55-277.33, means that Chapter 15.1 of Title 55, styled Uniform Principal and Income Act, applies as a whole to any trust in existence on January 1, 2000, unless the trust instrument itself expressly states that the Act does not apply, and when the trust instrument so states, no part of the Uniform Principal and Income Act governs such a trust; in contrast to § 55-277.33, Uniform Principal and Income Act, § 55-277.3, does not contain language requiring express rejection of the Uniform Principal and Income Act's default rules for allocating receipts and disbursements between principal and income. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156 (2011)(decided under former § 55-277.33).

Chapter 11. Uniform Prudent Management of Institutional Funds Act.

Sec.

§ 64.2-1100. Definitions.

In this chapter:

"Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental or municipal purpose, or any other purpose the achievement of which is beneficial to the community.

"Endowment fund" means an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term does not include assets that an institution designates as an endowment fund for its own use.

"Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund.

"Institution" means:

  1. A person, other than an individual, organized and operated exclusively for charitable purposes;
  2. A government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or
  3. A trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.

    "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term does not include:

    1. Program-related assets;

    2. A fund held for an institution by a trustee that is not an institution, unless the fund is held by the trustee as a component trust of a community trust or foundation; or

    3. A fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.

    "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

    "Program-related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment.

    "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

    (1973, c. 167, § 55-268.1; 1995, c. 199; 1997, c. 219; 2008, c. 184, § 55-268.12; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 19-3C-1 to 19-3C-10.

Alaska: Alaska Stat. §§ 13.65.010 to 13.65.095.

Arkansas: A.C.A. §§ 28-69-801 to 28-69-810.

California: Cal. Prob. Code §§ 18501 to 18510.

Colorado: C.R.S. §§ 15-1-1101 to 15-1-1110.

Connecticut: Conn. Gen. Stat. §§ 45a-526 to 45a-535i.

Delaware: 12 Del. C. §§ 4701 to 4710.

District of Columbia: D.C. Code §§ 44-1631 to 44-1639.

Florida: Fla. Sta. § 617.2104.

Georgia: O.C.G.A. §§ 44-15-1 to 44-15-8.

Hawaii: H.R.S. §§ 517E-1 to 517E-9.

Idaho: Idaho Code §§ 33-5001 to 33-5010.

Illinois: 760 I.L.C.S. 51/1 to 51/10.

Indiana: Burns Ind. Code Ann. §§ 30-2-12-0.4 to 30-2-12-18.

Iowa: Iowa Code §§ 540A.101 to 540A.109.

Kansas: K.S.A. § 3610 et seq.

Kentucky: K.R.S. §§ 273.600 to 273.645.

Louisiana: La. R.S. §§ 9:2337.1 to 9.2337.10.

Maine: 13 M.R.S. §§ 5101 to 5111.

Maryland: Md. Estates and Trusts Code Ann. §§ 15-401 to 15-410.

Massachusetts: ALM G.L. ch. 180A, §§ 1-10 .

Michigan: MCLS §§ 451.921 to 451.931.

Minnesota: Minn. Stat. §§ 309.73 to 309.77.

Mississippi: Miss. Code Ann. § 79-11-701 through 79-11-719.

Montana: Mont. Code Anno. §§ 72-30-101 to 72-30-213.

Nebraska: R.R.S. Neb. §§ 58-610 to 58-619.

Nevada: Nev. Rev. Stat. Ann. §§ 164.640 to 164.680.

New Hampshire: RSA 292-B:1 through 292-B:10.

New Jersey: N.J. Stat. §§ 15:18-25 through 15:18-34.

New Mexico: N.M. Stat. Ann. §§ 46-9A-1 through 46-9A-10.

North Carolina: N.C. Gen. Stat. §§ 36E-1 through 36E-11.

North Dakota: N.D. Cent. Code, §§ 59-21-01 through 59-21-08.

Ohio: ORC Ann. 1715.51 to 1715.59.

Oklahoma: 60 Okl. St. §§ 300.11 through 300.20.

Oregon: O.R.S. §§ 128.310 to 128.336.

Rhode Island: R.I. Gen. Laws §§ 18-12.1-1 to 18-12.1-10.

South Carolina: S.C. Code Ann. §§ 34-6-10 to 34-6-100.

South Dakota: S.D. Codified Laws §§ 15-14A-1 to 15-14A-10.

Tennessee: Tenn. Code Ann. §§ 35-10-201 to 35-10-210.

Texas: Tex. Prop. Code §§ 163.001 to 163.011.

Utah: Utah Code Ann. §§ 51-8-101 to 51-8-604.

Vermont: 14 V.S.A. §§ 3411 to 3420.

Virgin Islands: 15 V.I.C. §§ 8-101 to 8-203.

Washington: Rev. Code Wash. (ARCW) §§ 24.55.005 to 24.55.900.

West Virginia: W. Va. Code §§ 44-6A-1 to 44-6A-10.

Wisconsin: Wis. Stat. § 112.1.

Wyoming: Wyo. Stat. §§ 17-7-301 to 17-7-307.

§ 64.2-1101. Standard of conduct in managing and investing institutional fund.

  1. Subject to the intent of a donor expressed in a gift instrument, an institution, in managing and investing an institutional fund, shall consider the charitable purposes of the institution and the purposes of the institutional fund.
  2. In addition to complying with the duty of loyalty imposed by law other than this chapter, each person responsible for managing and investing an institutional fund shall manage and invest the fund in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances.
  3. In managing and investing an institutional fund, an institution:
    1. May incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the institution, and the skills available to the institution; and
    2. Shall make a reasonable effort to verify facts relevant to the management and investment of the fund.
  4. An institution may pool two or more institutional funds for purposes of management and investment.
  5. Except as otherwise provided by a gift instrument, the following rules apply:
    1. In managing and investing an institutional fund, the following factors, if relevant, shall be considered:
      1. General economic conditions;
      2. The possible effect of inflation or deflation;
      3. The expected tax consequences, if any, of investment decisions or strategies;
      4. The role that each investment or course of action plays within the overall investment portfolio of the fund;
      5. The expected total return from income and the appreciation of investments;
      6. Other resources of the institution;
      7. The needs of the institution and the fund to make distributions and to preserve capital; and
      8. An asset's special relationship or special value, if any, to the charitable purposes of the institution.
    2. Management and investment decisions about an individual asset shall be made not in isolation but rather in the context of the institutional fund's portfolio of investments as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the fund and to the institution.
    3. Except as otherwise provided by law other than this chapter, an institution may invest in any kind of property or type of investment consistent with this section.
    4. An institution shall diversify the investments of an institutional fund unless the institution reasonably determines that, because of special circumstances, the purposes of the fund are better served without diversification.
    5. Within a reasonable time after receiving property, an institution shall make and carry out decisions concerning the retention or disposition of the property or to rebalance a portfolio, in order to bring the institutional fund into compliance with the purposes, terms, and distribution requirements of the institution as necessary to meet other circumstances of the institution and the requirements of this chapter.
    6. A person that has special skills or expertise, or is selected in reliance upon the person's representation that the person has special skills or expertise, has a duty to use those skills or that expertise in managing and investing institutional funds.

      (1973, c. 167, §§ 55-268.4, 55-268.6; 2008, c. 184, § 55-268.13; 2012, c. 614.)

§ 64.2-1102. Appropriation for expenditure or accumulation of endowment fund; rules of construction.

  1. Subject to the intent of a donor expressed in the gift instrument, an institution may appropriate for expenditure or accumulate so much of an endowment fund as the institution determines is prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in the gift instrument, the assets in an endowment fund are donor-restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors:
    1. The duration and preservation of the endowment fund;
    2. The purposes of the institution and the endowment fund;
    3. General economic conditions;
    4. The possible effect of inflation or deflation;
    5. The expected total return from income and the appreciation of investments;
    6. Other resources of the institution; and
    7. The investment policy of the institution.
  2. To limit the authority to appropriate for expenditure or accumulate under subsection A, a gift instrument shall specifically state the limitation.
  3. Terms in a gift instrument designating a gift as an endowment, or a direction or authorization in the gift instrument to use only "income," "interest," "dividends," or "rents, issues, or profits," or "to preserve the principal intact," or words of similar import:
    1. Create an endowment fund of permanent duration unless other language in the gift instrument limits the duration or purposes of the fund; and
    2. Do not otherwise limit the authority to appropriate for expenditure or accumulate under subsection A.

      (1973, c. 167, §§ 55-268.2, 55-268.3; 2008, c. 184, § 55-268.14; 2012, c. 614.)

§ 64.2-1103. Delegation of management and investment functions.

  1. Subject to any specific limitation set forth in a gift instrument or in law other than this chapter, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in:
    1. Selecting an agent;
    2. Establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and
    3. Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.
  2. In performing a designated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation.
  3. An institution that complies with subsection A is not liable for the decisions or actions of an agent to which the function was delegated.
  4. By accepting delegation of a management or investment function from an institution that is subject to the laws of the Commonwealth, an agent submits to the jurisdiction of the courts of the Commonwealth in all proceedings arising from or related to the delegation or the performance of the delegated function.
  5. An institution may delegate management and investment functions to its committees, officers, or employees as authorized by law of the Commonwealth other than this chapter.

    (1973, c. 167, § 55-268.5; 2008, c. 184, § 55-268.15; 2012, c. 614.)

§ 64.2-1104. Release or modification of restrictions on management, investment, or purpose.

  1. If the donor consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow a fund to be used for a purpose other than a charitable purpose of the institution.
  2. The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, if it impairs the management or investment of the fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of the fund. The institution shall notify the Attorney General of the application, and the Attorney General shall be given an opportunity to be heard. To the extent practicable, any modification shall be made in accordance with the donor's probable intention.
  3. If a particular charitable purpose or restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, upon application of an institution, may modify the purpose of the fund or the restriction on the use of the fund in a manner consistent with the charitable purposes expressed in the gift instrument. The institution shall notify the Attorney General of the application, and the Attorney General shall be given an opportunity to be heard.
  4. If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, without application to the court but with the consent of the Attorney General, may modify the purpose of the fund or the restriction on the use of the fund in a manner consistent with the charitable purposes expressed in the gift instrument if the fund subject to the restriction has a total value of less than $250,000.
  5. If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, 60 days after notification to the Attorney General, may release or modify the restriction, in whole or part, if:
    1. The institutional fund subject to the restriction has a total value of less than $50,000;
    2. More than 20 years have elapsed since the fund was established; and
    3. The institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument.

      (1973, c. 167, § 55-268.7; 2008, c. 184, § 55-268.16; 2012, c. 614.)

§ 64.2-1105. Reviewing compliance.

Compliance with this chapter is determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight.

(2008, c. 184, § 55-268.17; 2012, c. 614.)

§ 64.2-1106. Application to existing institutional funds.

This chapter applies to institutional funds existing on or established after July 1, 2008. As it applies to institutional funds existing on July 1, 2008, this article governs only decisions made or actions taken on or after that date.

(2008, c. 184, § 55-268.18; 2012, c. 614.)

§ 64.2-1107. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101 of that act, 15 U.S.C. § 7001(a), or authorize electronic delivery of any of the notices described in § 103 of that act, 15 U.S.C. § 7001(b).

(2008, c. 184, § 55-268.19; 2012, c. 614.)

§ 64.2-1108. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(1973, c. 167, § 55-268.9; 2008, c. 184, § 55-268.20; 2012, c. 614.)

SUBTITLE IV. FIDUCIARIES AND GUARDIANS.

PART A. Fiduciaries.

Chapter 12. Commissioners of Accounts.

Sec.

§ 64.2-1200. Commissioners of accounts.

  1. 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.
  2. 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.
  3. 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.)

Law review. - For annual survey of Virginia law article, "Wills, Trusts, and Estates," see 47 U. Rich. L. Rev. 343 (2012).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 26 Accounting and Distribution. § 26.05 In Virginia, et seq. Cox.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 193; 12A M.J. Limitation of Actions, § 30.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Subject-matter jurisdiction. - County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner's authority to assist the circuit court with the settlement of estates was an extension of the circuit court's subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

Purpose of chapter. - By the enactment of this chapter it was the intention of the legislature to confer upon probate courts, in the administration of a decedent's estate, concurrent jurisdiction with a court of equity, and to establish a less expensive method and at the same time an equally efficient method of administering estates. Nicholas v. Nicholas, 169 Va. 399 , 193 S.E. 689 (1937).

Chapter provides same protection as suit in chancery. - This chapter is full, ample and complete, and guards and protects every interest as amply as could be done by a formal suit in chancery. Carter v. Skillman, 108 Va. 204 , 60 S.E. 775 (1908).

And renders danger of injustice to beneficiary remote. - The provisions of this chapter, if substantially followed, render the danger of any injustice to a beneficiary exceedingly remote, as they will usually show the character, amount and value of the property transmitted and therefore necessarily determine the amount of inheritance due thereon. Commonwealth v. Carter, 126 Va. 469 , 102 S.E. 58 (1920).

No general supervision over trustee who did not qualify. - Where the trustee did not qualify before the court, the commissioner of accounts did not have a general supervision over the trustee as set forth in this section. Cope v. Shedd-Carter, 175 Va. 273 , 7 S.E.2d 891 (1940).

OPINIONS OF THE ATTORNEY GENERAL

Editor's note. - The annotations below were decided under prior law.

A commissioner of accounts is not permitted access to criminal history records of delinquent fiduciaries through the Virginia Criminal Information Network, unless such records are released pursuant to a circuit court order or rule. See opinion of Attorney General to The Honorable Thomas D. Horne, Judge, Twentieth Judicial Circuit, 00-011 (4/8/02).

Clerk of circuit court may not hold interest in Virginia stock corporation. - The clerk of a circuit court may not accept the transfer by a commissioner of accounts of an equity interest in a Virginia stock corporation, which is subject to the direction of the court, when the transfer is not part of a case or controversy properly before the court. See opinion of Attorney General to The Honorable Michael P. McWeeny, Judge, Nineteenth Judicial Circuit of Virginia, 02-076 (10/28/02).

§ 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.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

§ 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.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

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

  1. 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.
  2. 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.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

Research References. - Virginia Forms (Matthew Bender). No. 5-1115. Petition for Forfeiture of Bond and Removal of Delinquent Fiduciary, et seq.

§ 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.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 13 Inventory and Appraisement § 13.03 Inventory in Virginia. Cox.

§ 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.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 13 Inventory and Appraisement. § 13.03 Inventory in Virginia. Cox.

Virginia Forms (Matthew Bender). No. 5-1112 Notice to Delinquent Fiduciary, et seq.; No. 6-726 Account for Incapacitated Adult; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary; No. 15-452 Waiver of Inventory and Settlement for Small Estates, et seq.

OPINIONS OF THE ATTORNEY GENERAL

Applicability of exemptions. - Under § 64.2-1302 , only the claims of a creditor seeking qualification for the filing waiver must exceed the value of the estate in order for the exemptions provided to apply; what constitutes sufficient proof of a claim exceeding the value of the estate is a matter within the discretion of the clerk. See opinion of Attorney General to The Honorable Brenda S. Hamilton, Clerk of Court, Circuit Court of the City of Roanoke, No. 14-059, 2014 Va. AG LEXIS 64 (11/20/14).

§ 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.)

CIRCUIT COURT OPINIONS

Failure to account. - Brother was removed as executor because his failure to account for, and pursue, his own debts to the estate, and his failure to carry out the provision of the will that required him to distribute the entire estate to the trust upon Father's death, were sufficient cause for his removal as executor. Menefee v. Menefee, 104 Va. Cir. 160, 2020 Va. Cir. LEXIS 21 (Chesapeake Jan. 23, 2020).

§ 64.2-1208. Expenses and commissions allowed fiduciaries.

  1. 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.
  2. 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.)

Research References. - Virginia Forms (Matthew Bender). No. 15-251 Compensation of Fiduciaries.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 226, 231.

CASE NOTES

I. DISBURSEMENTS.
A. EXPENSES.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

Reasonable expenses allowed. - Executors and administrators ought to be allowed, in their accounts, all reasonable charges and disbursements for the benefit of the estate they represent, and a reasonable recompense for their personal trouble, in preference to the claim of any creditor of the decedent. Garrett v. Carr, 40 Va. (1 Rob.) 196 (1842).

Executors and administrators are entitled to allowance for reasonable expenses and where the record does not show such allowance, it cannot be presumed to have been made. Dromgoole v. Smith, 78 Va. 665 (1884).

Such as disbursements for repairs. - Fiduciaries are justified in making ordinary repairs and improvements and are allowed to hold the property until reimbursed therefor. Shirkey v. Kirby, 110 Va. 455 , 66 S.E. 40 (1909); White v. Hall, 113 Va. 427 , 74 S.E. 212 (1912).

A trustee whose conduct was found to be absolutely beyond reproach should recover his expenses where he is subjected to an unwarranted and groundless attack. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

Clerk hire and rent of office. - Under certain circumstances, a fiduciary may be allowed expenses of administration (including clerk hire, rent of a counting room, and postage), in addition to his commission. Hipkins v. Bernard, 18 Va. (4 Munf.) 83 (1813); Farneyhough's Ex'rs v. Dickerson, 41 Va. (2 Rob.) 582 (1843); Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 (1900).

Counsel fees. - Trustees who in good faith engage counsel to aid them in the execution of the trust are entitled to pay them out of the trust fund. Cochran v. Richmond & A.R.R., 91 Va. 339 , 21 S.E. 664 (1895); Ward v. City of Winchester, 11 Va. L. Reg. 501 (1902); Berkley v. Green, 102 Va. 378 , 46 S.E. 387 (1904); Stull v. Harvey, 112 Va. 816 , 72 S.E. 701 (1911).

An executor, may, in good faith, seek the aid of counsel in the execution of his duties. However, in addition to good faith there must be some reasonable ground that renders the employment of counsel reasonably necessary to aid the executor in the performance of his duties. If counsel is employed under these circumstances, then reasonable expenses incurred by such employment are assessable against the estate. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

Allowance of attorney's fees for services rendered the estate apart from the duties as executor was within the sound discretion of the trial court. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

The executor was not entitled to allowance of a fee to the attorney who represented him in the hearings on the exceptions to his accounting. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

Counsel fee exceeding that by law allowed. - An executor or administrator ought to be credited in his administration account for fees paid to counsel, notwithstanding those fees were more than the law allowed. Lindsay v. Howerton, 12 Va. (2 Hen. & M.) 9 (1807).

Expenses of counsel for services rendered not in aid of the executor in the performance of his duties are not chargeable against the estate. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

It was error to charge the estate for those services rendered by counsel which were for the executor's personal benefit. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

B. DEBTS OF ESTATE.

Allowance made for payment of taxes. - An administrator is entitled to an allowance for money paid by him for taxes on the property of the decedent. Nimmo's Ex'r v. Commonwealth, 14 Va. (4 Hen. & M.) 57 (1809).

But not for payment of unlawful debt. - An executor ought not to be allowed a credit for paying a debt of his testator, appearing, on the face of the written instrument intended to secure it, to have been for money won at unlawful gaming. Carter's Ex'rs v. Cutting, 19 Va. (5 Munf.) 223 (1816).

C. PROOF OF DISBURSEMENT.

Oath substituted for vouchers. - An item should be allowed in an administration account, upon the oath of the defendant, where it is of such a nature that the expense probably must have been incurred, or that perhaps a voucher for it could not have been procured; for example, mourning for the widow, services performed by a carpenter and the like. M'Call v. Peachy's Adm'r, 17 Va. (3 Munf.) 288 (1812); Newton v. Poole, 39 Va. (12 Leigh) 112 (1841).

II. COMPENSATION.
A. RATE OF COMPENSATION.

Right to receive compensation is statutory. - The right of a fiduciary to receive compensation for administering an estate is of purely statutory origin. Swank v. Reherd, 181 Va. 943 , 27 S.E.2d 191 (1943).

Compensation dependent upon facts of particular case. - The amount of compensation to which a trustee is entitled is clearly dependent upon the facts of a particular case. It is impossible to lay down a hard and fast rule when so many factors may be involved. The court must rely on the general principles above and look to the value of the services performed under the circumstances, the results obtained, and the responsibilities assumed by the trustee. In re Manning, 43 Bankr. 712 (Bankr. W.D. Va. 1984).

No hard and fast rule as to compensation. - Inasmuch as this section fails to lay down a hard and fast rule, the court should not do so. A fair construction of the statute seems to be that if the fiduciary sells property, of whatever kind, he is generally entitled to a commission of five percent on the receipts. If he has the right to sell, but those entitled to the proceeds of sale prefer to take the property in kind, then he is generally entitled to receive five percent commission upon the appraised value of the property. If he is not entitled to sell the property, but must deliver in kind (except in the case of a specific legacy), he is only entitled to a reasonable compensation to be fixed by the commissioner, or court, upon the proper proof of the expense incurred, the risk taken, and the services rendered in connection with the property so delivered to those entitled thereto. Jones v. Virginia Trust Co., 142 Va. 229 , 128 S.E. 533 (1925); Mapp v. Hickman, 164 Va. 386 , 180 S.E. 296 (1935); Swank v. Reherd, 181 Va. 943 , 27 S.E.2d 191 (1943); Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952); Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

The amount of compensation to which a personal representative may be entitled is dependent upon the facts of the particular case. Since it is still practically impossible to lay down a hard and fast rule because of the many factors involved, the court must rely on general principles, remembering that the personal representative is entitled to a reasonable reward, commensurate with the value of his services under the attendant circumstances, the results obtained, and the responsibility assumed. In some instances five percent upon the appraised value of property coming into his hands would not be sufficient; in others it would be too much. Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952); Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

But it is in discretion of court. - There is no law which prescribes what commissions shall be allowed as executor, trustee or other fiduciary. The allowance or refusal of commissions rests in the sound discretion of the court under the circumstances of the case. Boyd's Sureties v. Oglesby, 64 Va. (23 Gratt.) 674 (1873); Lovett v. Thomas, 81 Va. 245 (1885); Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914); Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952); Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

The allowance of a commission is within the sound discretion of the trial court. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

However, compensation to fiduciaries must be reasonable. It is not fixed by statute and turns upon the facts in each case. Grandy v. Grandy, 177 Va. 601 , 15 S.E.2d 66 (1941).

An executor or administrator is entitled to a reasonable compensation for his services. Dromgoole v. Smith, 78 Va. 665 (1884).

"Reasonable" defined. - The word "reasonable," as applied to commissions of personal representatives, simply means that the compensation is to be "measured by the conscience of the court." Swank v. Reherd, 181 Va. 943 , 27 S.E.2d 191 (1943); Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952); In re Manning, 43 Bankr. 712 (Bankr. W.D. Va. 1984).

Fee may not be fixed by deed of trust without determining reasonableness. - An indentured trustee's commission may not be fixed by a deed of trust without due consideration by the bankruptcy court as to what fee is reasonable under the circumstances where the proposed foreclosure and sale of the property has been stayed by the filing of a Chapter 13 petition. In re Manning, 43 Bankr. 712 (Bankr. W.D. Va. 1984).

Factors determining compensation. - The value of the estate, the character of the work, the difficulties encountered and the results obtained, must all be remembered in reaching a judgment. Trotman v. Trotman, 148 Va. 860 , 139 S.E. 490 (1927). See also Koteen v. Bickers, 163 Va. 676 , 177 S.E. 904 (1934); Mapp v. Hickman, 164 Va. 386 , 180 S.E. 296 (1935); Grandy v. Grandy, 177 Va. 601 , 15 S.E.2d 66 (1941); Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

To be considered are the value of the estate, the services rendered and responsibilities assumed, the testator's intentions, and the need to sell assets of the estate. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

Compensation for a fiduciary is to be measured not solely by the power or right of the fiduciary to sell or not to sell; but by taking into consideration, the value of the estate, the character of the work, the difficulties encountered, and the results obtained. Pritchett v. First Nat'l Bank, 195 Va. 406 , 78 S.E.2d 650 (1953).

Retention of speculative common stocks which advanced in value resulting in benefit to the legatees is a relevant but not controlling circumstance in arriving at proper compensation for the executors. Pritchett v. First Nat'l Bank, 195 Va. 406 , 78 S.E.2d 650 (1953).

Amount and character of expert service required. - In view of the changing economic conditions of the modern world, and new legislation affecting the administration of estates of decedents, particularly with regard to taxation, in measuring the compensation of a personal representative there should also be considered the amount and character of expert service required and rendered to meet current problems imposed by provisions of testator's will, or by the law, or arising out of current conditions, and the responsibilities assumed. Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952).

Fiduciary's compensation is based upon services he has rendered in behalf of the estate or trust. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

Commission should be allowed only when executor has faithfully discharged his duties to the estate in his charge. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

Trial court should weigh all of executor's conduct during entire administration of the estate and allow a commission to him, if any, only insofar as he has rendered services to the estate. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

Where there has been partial performance of duty, there may be partial compensation. - Where there has been partial performance of duty that has been of value to the estate and partial failure to execute such duty, partial compensation may be permitted. Clare v. Grasty, 213 Va. 165 , 191 S.E.2d 184 (1972).

Five percent is usual commission. - A long line of decisions in this state, beginning with Granberry's Ex'r v. Granberry, 1 Va. (1 Wash.) 246 (1793), fixes a commission of five percent on receipts as the usual allowance, which may be reduced or increased under peculiar circumstances. Taliaferro v. Minor, 6 Va. (2 Call) 190 (1799); Triplett's Ex'rs v. Jameson, 16 Va. (2 Munf.) 242 (1811); Boyd's Sureties v. Oglesby, 64 Va. (23 Gratt.) 674 (1873); Darling v. Cumming, 111 Va. 637 , 69 S.E. 940 (1911). See Allen's Ex'r v. Virginia Trust Co., 116 Va. 319 , 82 S.E. 104 (1914); Jones v. Virginia Trust Co., 142 Va. 229 , 128 S.E. 533 (1925); Grandy v. Grandy, 177 Va. 601 , 15 S.E.2d 66 (1941); Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

A long line of decisions in this state has established five percent as the usual commission when a fiduciary sells property, but less may be allowed. In re Manning, 43 Bankr. 712 (Bankr. W.D. Va. 1984).

If a fiduciary sells real property, he is entitled to five per centum on the proceeds of the sale, and in the absence of special circumstances, a fiduciary is entitled to a commission of five per centum on intangibles. Grandy v. Grandy, 177 Va. 601 , 15 S.E.2d 66 (1941).

But less can be allowed. - To allow a fiduciary in every case a commission of five percent on legacies delivered in kind might place upon the legatee too onerous a burden, and in many cases where the estate is large and easy of settlement, a commission of five percent is out of proportion to the actual work required or performed. On the other hand, a rule disallowing all commissions in such cases is too restricted to meet the requirements of modern business. Jones v. Virginia Trust Co., 142 Va. 229 , 128 S.E. 533 (1925).

Where distribution of tangible and intangible property is made in kind, a fair commission is usually two and one-half percent, and this is true also where, as in the instant case, assets are retained by the executor as trustee. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

Commission where property distributed in kind or no unusual responsibilities performed. - Two and one-half percent is the usual commission where distribution of tangible and intangible property is made in kind or the trustees have performed no unusual responsibilities but, as with the five percent commissions, less may be allowed. In re Manning, 43 Bankr. 712 (Bankr. W.D. Va. 1984).

Increased allowance due to exceptional circumstances. - There was an allowance of seven and a half percent in Fitzgerald v. Jones, 15 Va. (1 Munf.) 150 (1810); an allowance of ten percent in Cavendish v. Fleming, 17 Va. (3 Munf.) 198 (1812); M'Call v. Peachy's Adm'r, 17 Va. (3 Munf.) 288 (1812); Gregory's Ex'r v. Parker, 87 Va. 451 , 12 S.E. 801 (1891).

Commission fixed by testator. - Pursuant to this section, when a testator fixes the compensation for an executor or trustee under his will, and the executor or trustee named therein accepts the appointment, he is entitled to as much and is limited to as little as the testator has fixed. In cases where the language of the testator is susceptible of more than one construction, the question becomes one of interpretation which the courts must settle by ascertaining the probable intention and understanding of the parties. Where no compensation at all is named in the will, the rule is that the allowance shall be reasonable, being usually five percent on receipts, subject to increase or reduction of this rate under peculiar circumstances. Williams v. Bond, 120 Va. 678 , 91 S.E. 627 (1917).

Illustrative cases. - Where executors and trustees had performed no extraordinary services and had assumed no unusual responsibilities, they were reasonably compensated by an allowance of a commission of two and one-half percent of the appraised value of personal property distributed in kind. Pritchett v. First Nat'l Bank, 195 Va. 406 , 78 S.E.2d 650 (1953). See also Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952).

Under the circumstances, the executor was entitled to a two and one-half percent commission on intangible property turned over to himself as trustee, and of five percent commission on money and on the appraised value of personal property and realty sold, as well as a like commission on income and sale of stock rights. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

There was no merit in the executor's contention that he was entitled to five percent commission on the increased value of stock as of the time of the filing of his final executorial account. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

B. ON WHAT PROPERTY ALLOWED.

Generally, commissions are graded on receipts, not disbursements. - Commissions are generally allowed on the amount of receipts, not on the amount of disbursements. Farneyhough's Ex'rs v. Dickerson, 41 Va. (2 Rob.) 582 (1843); Herelick v. Southern Dry Goods & Notion Co., 139 Va. 121 , 123 S.E. 529 (1924).

But commissions have in some instances been allowed on disbursements. Boyd's Surs. v. Oglesby, 64 Va. (23 Gratt.) 674 (1873). See Hipkins v. Bernard, 18 Va. (4 Munf.) 83 (1813).

No commission on specific property not converted into money. - Fiduciaries are not entitled to commissions on unconverted assets which are distributed in kind or which should have been so distributed, except under peculiar circumstances. Claycomb's Legatees v. Claycomb's Ex'r, 51 Va. (10 Gratt.) 589 (1854); Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919); Jones v. Virginia Trust Co., 142 Va. 229 , 128 S.E. 533 (1925).

Unless fiduciary has the right to sell. - If a fiduciary has the right to sell real property, he is entitled to a five per centum commission on its fair value, even though the beneficiary elects to take in kind. Grandy v. Grandy, 177 Va. 601 , 15 S.E.2d 66 (1941). See Swank v. Reherd, 181 Va. 943 , 27 S.E.2d 191 (1943).

Or the property is perishable. - Commissions are not to be allowed upon the value of property belonging to the estate, and finally turned over to the fiduciary in kind, unless perishable, or, otherwise, such property as the fiduciary might properly sell, or bonds, which he might rightfully have collected, but did not, and with the consent of the owner, paid over to him as so much money. Gregory's Ex'r v. Parker, 87 Va. 451 , 12 S.E. 801 (1891).

Where grain or other perishable property, which by law the executor is directed to sell, is divided in kind, among the legatees, the executor is entitled to a commission upon the appraised value. Claycomb's Legatees v. Claycomb's Ex'r, 51 Va. (10 Gratt.) 589 (1854).

Commission also allowed on stocks and bonds distributed in kind. - An executor's allowance for commissions extends to stocks and bonds distributed in kind. Allen's Ex'r v. Virginia Trust Co., 116 Va. 319 , 82 S.E. 104 (1914).

Debt due by executor to estate. - As a general rule, an executor is not entitled to commission on the amount of debt due from him to the testator, and credited to the estate in the executorial account. Farneyhough's Ex'rs v. Dickerson, 41 Va. (2 Rob.) 582 (1843).

Sale of crops, money found in house and disbursed. - An executor is entitled to a commission upon sales of crops made by him upon the lands of his testator, the proceeds thereof being lawfully received and accounted for by him; and also upon money found in the house, and disbursed by him for the use of the family, or invested in bank stock. Hipkins v. Bernard, 18 Va. (4 Munf.) 83 (1813).

Where a guardian misappropriates bank stock of his ward, no commission will be allowed on the value of the stock, but only on the amount of the dividends. Bank of Va. v. Craig, 33 Va. (6 Leigh) 399 (1835).

Converting bonds into mortgages. - An executor may be allowed a commission for turning bonds, or other debts, payable to his testator, into mortgages (without any actual receipt of the money), and delivering such mortgages to the legatees. Hipkins v. Bernard, 18 Va. (4 Munf.) 83 (1813), overruling Hipkins v. Bernard, 12 Va. (2 Hen. & M.) 21 (1808). See Claycomb's Legatees v. Claycomb's Ex'r, 51 Va. (10 Gratt.) 589 (1854).

Commissions are only to be allowed on the interest collected on an undue registered bond, and not on the principal sum, there being no necessity for its sale, and its custody being attended by no risk or trouble. Gregory's Ex'r v. Parker, 87 Va. 451 , 12 S.E. 801 (1891).

Compensation where estate assets distributed in kind. - A personal representative has the right to sell when authorized by statute, directed by will, or required for the security and benefit of the estate, or when necessary to effect a correct degree of distribution in kind. However, when there is no reason to sell, and the legatees or distributees request distribution in kind such distribution should be made. In the latter event, the personal representative, "except in cases in which it is otherwise provided," is entitled to reasonable compensation in the form of a commission, or otherwise, for service rendered under the peculiar circumstances of the case. Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952).

C. PERSONS ENTITLED THERETO.

Where one of two executors performs all the labor of the administration, he may be allowed all the compensation; and it is not for the legatees to object to this. Claycomb's Legatees v. Claycomb's Ex'r, 51 Va. (10 Gratt.) 589 (1854).

Right of executor legatee to commission. - An executor, to whom a legacy is left as nephew of the testator, is entitled to his commissions also. Granberry's Ex'r v. Granberry, 1 Va. (1 Wash.) 246 (1793). But see Jones v. Williams, 6 Va. (2 Call) 102 (1799).

Attorney fees not awarded. - Trial court did not err in denying the husband's request for attorney fees for the elective share litigation in which he engaged, as there was no statutory basis for an award of attorney fees to the surviving spouse under that circumstance and such litigation was undertaken to benefit him, and not his late wife's estate. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397 (2005).

III. LIABILITY FOR AND RIGHT TO INTEREST.

In general, an executor is chargeable with interest on balances in his hands. Burwell's Ex'rs v. Anderson, 30 Va. (3 Leigh) 348 (1831).

But it is not to be compounded. - At the close of an administration account, the interest due from the administrator is not to bear interest. Morris' Adm'r v. Morris' Adm'r, 45 Va. (4 Gratt.) 293 (1848).

Except under special circumstances. - Compound interest will be charged against an executor or trustee where a testator expressly directs an accumulation, or where trust moneys are used by a trustee for his own benefit in carrying on his own trade, but ordinarily the trustee or executor is not chargeable with compound interest. Russell v. Passmore, 127 Va. 475 , 103 S.E. 652 (1920).

Circumstances of case control. - The propriety or impropriety of charging an executor interest on uninvested sums of money in his hands always depends upon the particular circumstances of each case. Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

Executor not liable for interest where delay reasonable. - As a general rule the personal liability of an executor to distributees of an estate, for interest, where there has been delay in the closing and settlement of the estate, depends entirely upon whether the delay was reasonable or unreasonable under all the circumstances of the particular case. The executor is free from personal liability for interest where the delay is reasonable, and chargeable with interest where the delay is determined to be unreasonable. Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

An executor should be allowed interest upon the balance due him, on his administrative account. Jones v. Williams, 6 Va. (2 Call) 102 (1799); Miller v. Beverley, 14 Va. (4 Hen. & M.) 415 (1809).

Interest allowed guardian on expenditures. - A guardian is not entitled to interest from date of expenditure on small individual items of disbursements in the yearly statements. It is only when a large sum is disbursed early in the year and when, under the circumstances, it would work an unreasonable hardship upon the guardian not so to do, that interest will be allowed him on any item of disbursement from the date of payment. As to small items of disbursement, no interest should be allowed during the year. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

Executor was held entitled to interest on advances to the estate although the Supreme Court does not approve of the practice of a fiduciary borrowing from himself personally at the expense of the estate, unless the manifest exigencies of the situation require him to do so in order to protect and conserve the estate. Virginia Trust Co. v. Evans, 193 Va. 425 , 69 S.E.2d 409 (1952).

Executor not charged with interest on commissions paid before final distribution of estate. - See Bickers v. Shenandoah Valley Nat'l Bank, 201 Va. 257 , 110 S.E.2d 514 (1959).

CIRCUIT COURT OPINIONS

Identification of services performed. - Because a fiduciary, in support of its application for payment under § 26-30, did not identify which services were performed in its roles as conservator, guardian, and trustee, and as the fiduciary was not entitled to payment for services for which no legal professional skill or judgment was required, the fiduciary was to provide additional information on its fees and services. In re Estate of Clark, 84 Va. Cir. 374, 2012 Va. Cir. LEXIS 30 (Fairfax County Mar. 14, 2012) (decided under prior law).

Reasonableness of compensation. - Successor conservator sought compensation and allowance for fees and expenses incurred in taking over the estate, which were necessary to the estate's administration; since such fees and expenses would be billed to the estate, the insurer was only liable for those that would have been allowable to the estate, and thus the statute applied and the insurer was only liable for the fees and expenses to the extent they were reasonable. In re Estate of Bone, 91 Va. Cir. 547, 2014 Va. Cir. LEXIS 157 (Chesapeake Nov. 21, 2014).

In determining reasonableness of fees to the attorney/successor conservator, all legal services were be judged according to the case law standard regarding the reasonableness of attorney fees, and all non-legal services were to be judged according to the standard established by the caselaw interpreting the statute; evidence was permitted to be presented in this regard to make this determination. In re Estate of Bone, 91 Va. Cir. 547, 2014 Va. Cir. LEXIS 157 (Chesapeake Nov. 21, 2014).

§ 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.)

CASE NOTES

This section and § 26-15 do not oust a court of equity of its jurisdiction to enjoin improper settlement by a trustee under a deed of trust. Bradley v. Canter, 201 Va. 747 , 113 S.E.2d 878 (1960)(decided under prior law).

Subject-matter jurisdiction. - County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner's authority to assist the circuit court with the settlement of estates was an extension of the circuit court's subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 6-718. Order Appointing Guardian and Conservator; No. 15-476. Account for Decedent's Estate.

CASE NOTES

Returning evidence on which report is based. - Unless requested by a party in interest, a commissioner in chancery is not obliged to return with his report the evidence upon which it is based. Harper's Adm'r v. McVeigh's Adm'r, 82 Va. 751 , 1 S.E. 193 (1887)(decided under prior law).

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

  1. 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.
  2. 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.)

Research References. - Virginia Forms (Matthew Bender). No. 6-718 Order Appointing Guardian and Conservator; No. 15-460 Confirmation of Report of Commissioner on Debts and Demands, et seq.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Subject-matter jurisdiction. - County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner's authority to assist the circuit court with the settlement of estates was an extension of the circuit court's subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

Exception not required where fundamental error committed. - Where it is apparent from the face of the report of a commissioner and from the pleadings and exhibits, independent of other evidence, that the commissioner's report was based upon a fundamental error of law, no exception to the report is necessary. Carle v. Cochran, 127 Va. 223 , 103 S.E. 699 (1920).

Reference to commissioner where period for filing exceptions expired. - Conceding that an ex parte account of an executor, in the absence of exceptions, stood confirmed at the expiration of 30 days (now 15 days) from the filing thereof, the lower court was entirely right in referring the cause to a commissioner, where, before the decree of reference was entered, proof had been taken showing that the executor had misappropriated the funds, and that the settlement itself was based in the main upon fictitious and fraudulent entries. American Sur. Co. v. Quincey, 125 Va. 1 , 99 S.E. 641 (1919).

Exceptions must state grounds. - No particular form or formality is required when stating and filing exceptions to the commissioner's report, but the exceptant must specify with reasonable certainty the particular grounds of the objections relied upon so that the adverse party may know what he has to meet and the court what it has before it for review. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

An exception directed to the reasonableness of the amount claimed for services as executor and attorney did not raise the issue of forfeiture of commissions under § 26-19. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

Account confirmed without exception. - Where an executor's first accounting was approved by the commissioner of accounts and confirmed by the court without exception, the accounting thereby became final and conclusive. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

Additional evidence may be heard in circuit court to exceptions to commissioner's report. - Although this section does not explicitly provide for a further evidentiary hearing in circuit court when exceptions to a commissioner's report are heard, it is implicit in the statutory provision for jury trial that additional evidence may be adduced, and it is equally implicit that evidence which may be heard by a jury may also be heard ore tenus, in the court's discretion. Morris v. United Va. Bank, 237 Va. 331 , 377 S.E.2d 611 (1989).

Final approval. - Circuit court erroneously delegated final approval of the accountings to the Commissioner of Accounts without a certification that it had made a personal examination of the exceptions, as required by subsection B of § 64.2-1212 , where its order conditioned final approval of the accountings on the Commissioner's approval, subject to specific written objections, nothing in the record showed any ruling on the beneficiary's objections and exceptions, and none of the orders contained the language required by subsection B that the court "certify in the order that it has made a personal examination of the exceptions." Henderson v. Cook, 297 Va. 699 , 831 S.E.2d 717, 2019 Va. LEXIS 96 (2019).

CIRCUIT COURT OPINIONS

Exceptions to correct errors. - Chancery commissioner erred in finding that the claimant did not hold the property he claimed by adverse possession under the necessary claim of right; the claimant provided clear and convincing evidence satisfying the hostility requirement by introducing proof that he believed that a particular line on the ground represented the extent of his land and that he treated all the land within the line as his own, and, thus, the trial court had a duty to correct the chancery commissioner's erroneous conclusion in the chancery commissioner's report that found the claimant had not proved he had title to the disputed property by adverse possession. City of Norfolk v. Hoffert, 66 Va. Cir. 390, 2005 Va. Cir. LEXIS 43 (Norfolk 2005).

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1108 Complaint to Surcharge and Falsify Settlement; No. 6-718 Order Appointing Guardian and Conservator; No. 15-460 Confirmation of Report of Commissioner on Debts and Demands, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 249, 256.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Section declaratory of preexisting rule. - This section seems to have been engrafted on the statute law, in its present form, for the first time at the revisal of 1849 (Code of 1849, ch. 132, § 23, p. 552), and is simply declaratory of the preexisting rule as to the credit to which such settlements were entitled. Leavell v. Smith's Ex'rs, 99 Va. 374 , 38 S.E. 202 (1901). See also Radford v. Fowlkes, 85 Va. 820 , 8 S.E. 817 (1889).

And is applicable to fiduciary settlements. - The reports of accounts referred to in this section, which are to be taken as correct until properly surcharged or falsified, are "fiduciary settlements" in the legitimate acceptation of that term - executorial and administrative accounts and the like, such as the commissioner of accounts has the authority to deal with, affecting assets, the due administration of which devolve upon the fiduciary by virtue of his office, and which are covered by his oath and bonds. Leavell v. Smith's Ex'rs, 99 Va. 374 , 38 S.E. 202 (1901). See Cope v. Shedd-Carter, 175 Va. 273 , 7 S.E.2d 891 (1940).

But not to the settlement of a trustee's account. Cope v. Shedd-Carter, 175 Va. 273 , 7 S.E.2d 891 (1940).

The only method contemplated by the Virginia Code for the impeachment of an ex parte settlement is by bill in equity to surcharge and falsify, except in the case of a person who was a party to exceptions filed to the report, in which case the statute prohibits such person from bringing a suit to surcharge and falsify, but does permit an appeal as in other suits in equity. Lister v. Virginia Nat'l Bank, 209 Va. 739 , 167 S.E.2d 346 (1969).

Ex parte settlements of accounts by fiduciaries are prima facie evidence of their correctness, but subject to be surcharged and falsified. Radford v. Fowlkes, 85 Va. 820 , 8 S.E. 817 (1889); Hurt v. West's Adm'r, 87 Va. 78 , 12 S.E. 141 (1890); Robinett Adm'r v. Robinett Heirs, 92 Va. 124 , 22 S.E. 856 (1895); Leavell v. Smith's Ex'rs, 99 Va. 374 , 38 S.E. 202 (1901); Scott v. Porter, 99 Va. 553 , 39 S.E. 220 (1901). See Leake's Ex'r v. Leake, 75 Va. 792 (1881); Carter v. Edmunds, 80 Va. 58 (1885); Owens v. Owen's Ex'r, 109 Va. 432 , 63 S.E. 990 (1909); Miller v. Smith, 109 Va. 651 , 64 S.E. 956 (1909).

But ex parte accounts of executors or administrators are not evidence of overpayments by them, or that the claims stated in such accounts were debts justly due by the deceased, and chargeable upon his real estate. If an executor or administrator, after exhausting the assets which properly come into his hands, pays debts of the decedent out of his own estate, he can only claim to be substituted to the rights of the creditor, and must prove his demand by the same kind of evidence that would be demanded of the original creditor. Leavell v. Smith's Ex'rs, 99 Va. 374 , 38 S.E. 202 (1901).

Burden on plaintiff to show errors. - The ex parte settlements by a master commissioner of the accounts of a fiduciary, are presumed to be correct, except so far as the same may in a suit in proper time be surcharged and falsified; and the onus is on the plaintiff to show that it is not correct. And when such settlement is made in a suit inter partes, and is duly returned and confirmed, it cannot be disturbed except for errors apparent on its face or for after-discovered facts. Radford v. Fowlkes, 85 Va. 820 , 8 S.E. 817 (1889).

The ex parte settlements of the commissioner of accounts are presumed to be correct until surcharged and falsified, and not only the duty of specifying errors, but also the onus probandi, devolves on the party complaining. Corbin v. Mills' Ex'rs, 60 Va. (19 Gratt.) 438 (1869); Young v. Bowen, 131 Va. 401 , 108 S.E. 866 (1921), citing Peale v. Hickle, 50 Va. (9 Gratt.) 437 (1852); Counts v. Counts, 165 Va. 61 , 181 S.E. 437 (1935).

Misconduct of administrator not presumed. - The ex parte settlement of an administration account (confirmed by the court) showing that all funds coming into the hands of the administrator have been properly accounted for, and that the disbursements are supported by proper and satisfactory vouchers, will not be overturned by showing that before the account was settled the administrator paid his individual debts by checks drawn by him as administrator of his decedent's estate. It will not be inferred that the administrator has misappropriated the funds belonging to his decedent's estate. McIntyre v. Wright, 113 Va. 299 , 74 S.E. 172 (1912).

Election. - This section does not prohibit a beneficiary, who did not file exceptions to the commissioner's report within the statutory period (now 15 days), from seeking equitable relief by instituting a suit in proper time to surcharge and falsify an ex parte settlement of the fiduciary's account. A beneficiary may elect whether to file exceptions to the report or to institute a suit to surcharge and falsify. If he files exceptions to the report, then he is barred from prosecuting such a suit. The statute specifically states that a confirmed report "shall be taken to be correct, except so far as it may, in a suit, in proper time, be surcharged or falsified." Lister v. Virginia Nat'l Bank, 209 Va. 739 , 167 S.E.2d 346 (1969).

Subject-matter jurisdiction. - County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner's authority to assist the circuit court with the settlement of estates was an extension of the circuit court's subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

Setting aside settlement by bill in equity. - The settlement by a commissioner of the accounts of the committee of an insane person which has been duly confirmed will not be set aside on a bill which stated no grounds of fraud, accident or mistake, but merely seeks to correct an error alleged to have been made by the commissioner in his settlement. Johnston v. Commonwealth ex rel. Perry, 117 Va. 506 , 85 S.E. 566 (1915).

Confirmation of report of assistant commissioner of accounts approving the executor's account did not constitute a bar to the prosecution of complainants' suit to surcharge and falsify the ex parte settlement of the executor's account. Lister v. Virginia Nat'l Bank, 209 Va. 739 , 167 S.E.2d 346 (1969).

CIRCUIT COURT OPINIONS

Burden on plaintiff to show errors. - While the plaintiff in a surcharge and falsification suit generally had the burden of proof, whether or not a commissioner-of-accounts approved an executor's accountings, in a suit in which the executor's pursuit of an aid and direction suit materially advanced his own interests, the executor had the burden of proving that his actions were taken within the scope of his authority, were taken in good faith, and comported with ordinary prudence. Gaymon v. Gaymon, 63 Va. Cir. 264, 2003 Va. Cir. LEXIS 202 (Fairfax County 2003).

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 6-718. Order Appointing Guardian and Conservator.

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

  1. 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.
  2. 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.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.4 The Sale. Rendleman.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 13 Inventory and Appraisement § 13.03 Inventory in Virginia. Cox.

Virginia Forms (Matthew Bender). No. 5-1114 Show Cause Order Against Delinquent Fiduciary.

CASE NOTES

Accounting only required for sales made. - Where § 26-15 only required an account of a foreclosure sale for "a sale made," the circuit court erred by requiring a trustee to file reports for advertised foreclosure sales that were not made and by assessing fees against the trustee under §§ 26-13 and 26-23. Pollack v. Allen, 266 Va. 118 , 581 S.E.2d 198 (2003)(decided under prior law).

OPINIONS OF THE ATTORNEY GENERAL

A commissioner of accounts is not permitted access to criminal history records of delinquent fiduciaries through the Virginia Criminal Information Network, unless such records are released pursuant to a circuit court order or rule. See opinion of Attorney General to The Honorable Thomas D. Horne, Judge, Twentieth Judicial Circuit, 00-011 (4/8/02) (decided under prior law).

§ 64.2-1216. Failure to account; enforcement.

  1. 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 .
  2. 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.
  3. 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.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.4 The Sale. Rendleman.

Virginia Forms (Matthew Bender). No. 5-1112 Notice to Delinquent Fiduciary, et seq.

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1117 Order Forfeiting Bond and Removing Delinquent Fiduciary.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 229, 233.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

This section does not apply to accounts which are settled in a suit brought for the administration of the estate. Fauber's Adm'rs v. Gentry's Adm'r, 89 Va. 312 , 15 S.E. 899 (1892); Cannon v. Searles, 150 Va. 738 , 143 S.E. 495 (1928).

Discretion to allow compensation. - This section does not create an absolute forfeiture of commissions. Whether they are allowed or refused is a matter of discretion, a discretion to be reasonably exercised under the circumstances of each case. Dearing v. Walter, 179 Va. 620 , 20 S.E.2d 483 (1942). See Harris v. Citizens Bank & Trust Co., 172 Va. 111 , 200 S.E. 652 (1880); Buckle v. Marshall, 176 Va. 139 , 10 S.E.2d 506 (1940).

There is a discretion in the allowance of compensation under this section even though the fiduciary has failed to settle his accounts. Crigler's Comm. v. Alexander's Ex'r, 74 Va. (33 Gratt.) 674 (1880); Brent's Adm'r v. Clevinger, 78 Va. 12 (1883); Trevelyan v. Lofft, 83 Va. 141 , 1 S.E. 901 (1887); Robertson v. Gillenwaters, 85 Va. 116 , 7 S.E. 371 (1888).

And the circumstances of each case govern. - Whether a court shall allow or refuse compensation in a case where a fiduciary has failed to settle his accounts depends on the circumstances of each particular case. Wood's Ex'r v. Garnett, 33 Va. (6 Leigh) 271 (1835); Lovett v. Thomas, 81 Va. 245 (1885); Trevelyan v. Lofft, 83 Va. 141 , 1 S.E. 901 (1887).

This section does not create an absolute forfeiture of commissions for failure to file an accounting within four months after the end of each year, pursuant to former § 26-17. The allowance or refusal of commissions is a matter of discretion to be reasonably exercised under the circumstances of each case, and when exercised it is subject to review on appeal. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

Excuse is necessary for failure to account. - It is incumbent upon a delinquent fiduciary, praying the court to exercise its discretion in his favor, and grant him compensation where he has failed to settle his accounts, to give a reasonable excuse for his delay, otherwise compensation ought not to be allowed him. Brent's Adm'r v. Clevinger, 78 Va. 12 (1883); Trevelyan v. Lofft, 83 Va. 141 , 1 S.E. 901 (1887).

And the excuse must be reasonable. - Under this section commissions to a fiduciary will be allowed on receipts as to which he is in default under this section and former § 26-17, only to the extent that he gives a reasonable excuse for such default. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919).

Commissions not allowed. - A trustee who failed to make annual settlements, or any statement to the beneficiaries, as directed by former § 26-17 and this section, whose only excuse was that he did not deem it necessary, as he had annually paid the interest, was not entitled to commissions, and his right to future commissions will depend upon his future conduct. Ward v. Funsten, 86 Va. 359 , 10 S.E. 415 (1889). See also Beverleys v. Miller, 20 Va. (6 Munf.) 99 (1818); McCready v. Lyon, 167 Va. 103 , 187 S.E. 442 (1936).

Pursuant to this section and former § 26-17, an administrator who has made no settlement of his accounts as required by law, and who offers no reasonable or sufficient excuse for his failure to perform this plain and mandatory duty, is not entitled to receive commissions on that part of the funds of the estate received by him which goes to persons who have not waived such settlements. Crismond v. Jones, 117 Va. 34 , 83 S.E. 1045 (1915).

Commission allowed on money actually collected. - No accounts were filed by the committees, and when the various estates were brought into equity, it was contended that in allowing commissions to the committees, there was an abuse of discretion under this section. It was held that it could not be said that there was an abuse of discretion in allowing commissions on the money actually collected and disbursed by the committees. Mapp v. Byrd, 169 Va. 519 , 194 S.E. 724 (1938).

A personal representative will be entitled to his commissions upon moneys received by him during the Civil War, though he did not settle his accounts until after the war. Moses v. Hart's Adm'r, 66 Va. (25 Gratt.) 795 (1875); Brent's Adm'r v. Clevinger, 78 Va. 12 (1883).

Settlement before wrong court. - Under the discretion given the court by this section, it was not error to allow compensation to an executor, who, by mistake, settled his account before the commissioner of the county instead of the circuit court, where he qualified. Moorman v. Crockett, 90 Va. 185 , 17 S.E. 875 (1893).

Failure of commissioner to report account. - Where, under this section, a personal representative yearly laid his accounts before the commissioner of accounts, the failure of the officer to audit, state, and report them, cannot lose the former his commissions. Lovett v. Thomas, 81 Va. 245 (1885).

Issue of forfeiture not properly raised. - Where the commissioner approved an accounting including certain amounts claimed as executor's commission, exceptions filed in the circuit court directed at the reasonableness of such amounts did not properly bring before the court for determination the issue of forfeiture of commissions pursuant to this section. Perrow v. Payne, 203 Va. 17 , 121 S.E.2d 900 (1961).

CIRCUIT COURT OPINIONS

Commissions not allowed. - Executor was not allowed fees where she filed her first accounting nearly nine months after it was due, failed to seek help in accounting and did not hire legal counsel until eight months after the deputy commissioner had summoned her for her failure to file. In re Estate of Cozart, 58 Va. Cir. 37, 2001 Va. Cir. LEXIS 389 (Richmond 2001).

Where the guardian for the mother's estate failed to file the guardian's accountings in a timely manner, the guardian forfeited the guardian's commission. Feller v. Hild, 69 Va. Cir. 502, 1999 Va. Cir. LEXIS 771 (Amherst County 1999).

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1114 Show Cause Order Against Delinquent Fiduciary.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Accounting only required for sales made. - Where § 26-15 only required an account of a foreclosure sale for "a sale made," the circuit court erred by requiring a trustee to file reports for advertised foreclosure sales that were not made and by assessing fees against the trustee under §§ 26-13 and 26-23. Pollack v. Allen, 266 Va. 118 , 581 S.E.2d 198 (2003).

No abuse of discretion found. - In case in which $20 million and certain property was awarded to the Commonwealth for the public benefit after a constructive trust had been imposed on the assets of a charitable corporation whose charter was revoked, the chancellor did not abuse his discretion in failing to award attorneys' fees and costs to the Commonwealth, although the trustees had engaged in a longstanding course of self-dealing at the expense of the charity, which would have supported an award of attorneys' fees under the evidence presented. Tauber v. Commonwealth ex rel. Kilgore, 263 Va. 520 , 562 S.E.2d 118 (2002), cert. denied, 537 U.S. 1002, 123 S. Ct. 496, 154 L. Ed. 2d 398 (2002).

§ 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.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

§ 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."

  1. 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.
  2. 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.

  3. The clerk shall certify to the commissioner of accounts the revocation of the authority of any fiduciary within 10 days of the revocation.
  4. 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.)

CASE NOTES

Commissioner must have posted list of fiduciaries' accounts. - Before a court can make an order under § 26-38 for the investment of a ward's estate, the commissioner must have posted a list of the fiduciaries' accounts before him for settlement, at the courthouse door according to this section. For failure to do so, such order may be set aside on motion. Whitehead's Adm'r v. Whitehead, 64 Va. (23 Gratt.) 376 (1873)(decided under prior law).

Chapter 13. Inventories and Accounts.

Sec.

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 13 Inventory and Appraisement. § 13.03 Inventory in Virginia. Chapter 26 Accounting and Distribution. § 26.05 In Virginia, et seq. Cox.

Virginia Forms (Matthew Bender). No. 6-724. Inventory for Estate of Incapacitated Adult; No. 15-420. Instructions for Inventory - Decedent's Estate, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 39, 41, 197, 233.

OPINIONS OF THE ATTORNEY GENERAL

Applicability of exemptions. - Under § 64.2-1302 , only the claims of a creditor seeking qualification for the filing waiver must exceed the value of the estate in order for the exemptions provided to apply; what constitutes sufficient proof of a claim exceeding the value of the estate is a matter within the discretion of the clerk. See opinion of Attorney General to The Honorable Brenda S. Hamilton, Clerk of Court, Circuit Court of the City of Roanoke, No. 14-059, 2014 Va. AG LEXIS 64 (11/20/14).

§ 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.)

Law review. - For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 26 Accounting and Distribution. § 26.02 Duty to Keep Accounts and Make Settlements. Cox.

§ 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.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$25,000" for "$15,000."

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Applicability of exemptions. - Under § 64.2-1302 , only the claims of a creditor seeking qualification for the filing waiver must exceed the value of the estate in order for the exemptions provided to apply; what constitutes sufficient proof of a claim exceeding the value of the estate is a matter within the discretion of the clerk. See opinion of Attorney General to The Honorable Brenda S. Hamilton, Clerk of Court, Circuit Court of the City of Roanoke, No. 14-059, 2014 Va. AG LEXIS 64 (11/20/14).

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

  1. 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.
  2. 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.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

§ 64.2-1304. Personal representatives.

  1. 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.
  2. 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.
  3. 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.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

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

  1. 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.
  2. 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.
  3. 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.
  4. Any account filed with the commissioner pursuant to this section shall be signed under oath by the fiduciary making such filing. If a fiduciary makes a false entry or statement in such a filing, he shall be subject to a civil penalty of not more than $500. Such penalty shall be collected by the attorney for the Commonwealth or the county or city attorney, and the proceeds shall be deposited into the general fund.

    (1993, c. 689, § 26-17.4; 1997, cc. 214, 921; 1999, cc. 16, 378; 2012, c. 614; 2020, cc. 190, 372.)

The 2020 amendments. - The 2020 amendment by cc. 281 and 372 are identical, and added subsection D.

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

Research References. - Virginia Forms (Matthew Bender). No. 6-726 Account for Incapacitated Adult; No. 15-479 Account for Incapacitated Adult, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 193.

CASE NOTES

Bankruptcy. - Creditor was not entitled to summary judgment on its action under 11 U.S.C.S. § 523(a)(4) because the creditor had not shown that a default judgment in state court had preclusive effect as to the debtor's alleged defalcation given that it was not clear that breach of fiduciary duty, misuse of funds, or unexplained loss was actually litigated in the state court action that focused on the debtor's breach of his duty to account as required under § 64.2-1305 for guardians and conservators. Cincinnati Ins. Co. v. Chidester (In re Chidester),, 2013 Bankr. LEXIS 1876 (Bankr. W.D. Va. Mar. 3, 2013).

§ 64.2-1306. Testamentary trustees.

  1. 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.
  2. 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.
  3. 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.)

CIRCUIT COURT OPINIONS

Trustee to file accountings. - Where neither will establishing the testamentary trusts waived the statutory obligation of the trustee to file accountings, the trial court declined to re-write the testators will and waive the accounting requirement, even where the trustee was also the sole beneficiary of the trusts. In re Rauth, 66 Va. Cir. 315, 2004 Va. Cir. LEXIS 309 (Fairfax County 2004)(decided under prior law).

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

  1. 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.
  2. 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.

  3. 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."
  4. 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.
  5. 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.
  6. 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."
  7. 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.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Research References. - Virginia Forms (Matthew Bender). No. 15-491 Testamentary Trustee's Notice to Beneficiaries Pursuant to Va. Code Ann. § 64.2-1307 .

§ 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.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.4 The Sale. Rendleman.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 13 Inventory and Appraisement § 13.05 What Property Included. Cox.

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

  1. 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 § 55.1-321 . 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.
  2. 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.
  3. 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.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-321" for "55-59.1."

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.4 The Sale. Rendleman.

Virginia Forms (Matthew Bender). No. 5-2001 Petition for Payment of Funds into Court; No. 6-902.1 Foreclosure Checklist, et seq.; No. 16-823 Trustee's Duties upon Default, et seq.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

This section and § 26-29 do not oust a court of equity of its jurisdiction to enjoin improper settlement by a trustee under a deed of trust. Bradley v. Canter, 201 Va. 747 , 113 S.E.2d 878 (1960).

Accounting only required for sales made. - Where § 26-15 only required an account of a foreclosure sale for "a sale made," the circuit court erred by requiring a trustee to file reports for advertised foreclosure sales that were not made and by assessing fees against the trustee under §§ 26-13 and 26-23. Pollack v. Allen, 266 Va. 118 , 581 S.E.2d 198 (2003).

Action under federal question jurisdiction not maintainable. - This section did not involve sufficient state action to permit plaintiffs to maintain a cause of action under federal question jurisdiction. Levine v. Stein, 560 F.2d 1175 (4th Cir. 1977), cert. denied, 434 U.S. 1046, 98 S. Ct. 891, 54 L. Ed. 2d 797 (1978).

§ 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.)

Michie's Jurisprudence. - For related discussion, see 15 M.J. Recording Acts, § 6.

CASE NOTES

Action under federal question jurisdiction not maintainable. - This section did not involve sufficient state action to permit plaintiffs to maintain a cause of action under federal question jurisdiction. Levine v. Stein, 560 F.2d 1175 (4th Cir. 1977), cert. denied, 434 U.S. 1046, 98 S. Ct. 891, 54 L. Ed. 2d 797 (1978); (decided under prior law).

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection A, substituted "$50" for "$25."

Law review. - For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

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

  1. 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.
  2. 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.
  3. 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.)

Law review. - For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 26 Accounting and Distribution. § 26.02 Duty to Keep Accounts and Make Settlements. Cox.

§ 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.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$25,000" for "$15,000" twice.

Law review. - For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

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

  1. 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.
  2. 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.
  3. 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.)

The 2017 amendments. - The 2017 amendment by c. 638 deleted former subsection D, which read: "For examining and approving a statement and vouchers or a written notice under the provisions of this section, the commissioner of accounts shall be allowed a fee not to exceed $ 75."

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

§ 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.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 12 Grant of Administration. § 12.15 The Bond. Cox.

Virginia Forms (Matthew Bender). No. 15-401 Checklist for Probate and Administration, et seq.

§ 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.

  1. 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.
  2. 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.
  3. 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.

Appointment, Qualification, Resignation, and Removal of Fiduciaries.

Nonresident Trustees.

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.

  1. 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.
  2. 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 .
  3. 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.
  4. 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.
  5. 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.)

Research References. - Virginia Forms (Matthew Bender). No. 15-248 Appointment of Fiduciaries; No. 16-541 Deed to Land Trust.

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

  1. 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 .
  2. 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.
  3. The provisions hereof shall not apply to a testamentary devise or bequest to a church or its trustees.
  4. 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.)

CIRCUIT COURT OPINIONS

Action to remove trustees. - Where the trustees were willing to step aside and either of two courts could entertain a § 26-3 petition to remove them, pursuant to §§ 26-46.2 and 26-48 and in the interest of justice, the beneficiary's action to remove the trustees would be transferred to the court with supervisory authority over the trust's administration. Estate of Mabon, 61 Va. Cir. 420, 2003 Va. Cir. LEXIS 126 (Richmond 2003)(decided under prior law).

Where the testators' wills indicated that they had decided that a bond for the trustee of their testamentary trusts was not subject to waiver, the trial court declined to contravene the apparent intention of each testator to waive the bond requirement even thought the trustee was the sole beneficiary of both trusts. In re Rauth, 66 Va. Cir. 315, 2004 Va. Cir. LEXIS 309 (Fairfax County 2004)(decided under prior law).

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

  1. 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.
  2. 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.

  1. For the purposes of this section, the phrase "deed or other writing" does not include a will.
  2. 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.
  3. 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.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.2 The Mortgage Transaction. Rendleman.

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 5-1118 Order Forfeiting Bond and Removing Fiduciary for Cause.

§ 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.

  1. 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.
  2. 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.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 21 Conditions, Trusts and Powers. § 21.21 Virginia and West Virginia Uniform Trust Code. Cox.

Virginia Forms (Matthew Bender). No. 6-901 Resignation of Trustee; No. 15-248 Appointment of Fiduciaries.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Section does not apply to discretionary trust. - A court of equity has no jurisdiction to interfere with a trustee in the exercise of a discretionary trust, or one of personal confidence, so long as he acts in good faith. It can neither execute it itself, nor appoint someone else to do it. This section has no application to a trust of this character. Dillard v. Dillard, 97 Va. 434 , 34 S.E. 60 (1899).

When a trust is discretionary or one of personal confidence, this section does not apply; otherwise it does apply, although the trustee be invested with the legal title. Roller v. Catlett, 118 Va. 185 , 86 S.E. 909 (1915).

Proceeding under section determines nothing as to character of deed. - A proceeding by motion under this section to substitute a new trustee in a deed of trust to secure a debt, determines nothing as to the rights of the parties under the deed, nor as to the character of the deed. Pettus v. Atlantic Sav. & Loan Ass'n, 94 Va. 477 , 26 S.E. 834 (1897).

Jurisdiction of court. - Where a deed was properly recorded in the County of Prince George, the City of Hopewell not then being in existence, but after the incorporation of the City of Hopewell, the land conveyed by the deed of trust being situated in the city as incorporated, the deed of trust was recorded in the clerk's office of the corporation court of the City of Hopewell, the corporation court of the City of Hopewell had jurisdiction of the subject matter of the proceeding to appoint a new trustee insofar as such jurisdiction depended upon the place of recordation of the deed of trust. Abrahams v. Ball, 122 Va. 197 , 94 S.E. 799 (1918).

CIRCUIT COURT OPINIONS

Section does not apply to discretionary trust. - Where the three original testamentary trustees had discretionary powers, the trust could be implemented in accordance with its terms by the surviving trustees pursuant to former § 26-54; the court, therefore, declined to appoint a successor trustee to replace a deceased trustee under this section. In re Trust of Sams, 59 Va. Cir. 322, 2002 Va. Cir. LEXIS 376 (Richmond 2002).

Jurisdiction of court. - Where the trustees were willing to step aside and either of two courts could entertain a § 26-3 petition to remove them, pursuant to §§ 26-46.2 and 26-48 and in the interest of justice, the beneficiary's action to remove the trustees would be transferred to the court with supervisory authority over the trust's administration. Estate of Mabon, 61 Va. Cir. 420, 2003 Va. Cir. LEXIS 126 (Richmond 2003).

Appointment of trustee. - Entirety of decedent's estate was within the residuary estate as certain devises and bequests in the decedent's will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).

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

  1. 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.
  2. 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 .
  3. Any decree or order of substitution heretofore made by a court of competent jurisdiction is hereby validated.
  4. 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.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 21 Conditions, Trusts and Powers. § 21.21 Virginia and West Virginia Uniform Trust Code. Cox.

Editor's note. - The cases below were decided under prior law.

CASE NOTES

Substantial compliance necessary. - The proceeding under this section to substitute a new trustee for the original trustee named in the instrument creating the trust is a statutory one and the express requirements of the statute must be at least substantially complied with in order that the court may have the jurisdiction of the subject matter conferred by the statute. Abrahams v. Ball, 122 Va. 197 , 94 S.E. 799 (1918).

Original trustee is an interested party. - In proceedings under this section to substitute a trustee the original trustee in a deed of trust is "interested in the execution of the trust," and is a necessary party to the proceeding and the statute requires notice to him of the proceeding. Abrahams v. Ball, 122 Va. 197 , 94 S.E. 799 (1918).

Record must show parties in interest had notice. - Where the record does not show that all parties in interest were before the court, or that all such parties had notices, an order substituting another trustee is null, and a sale made by him is void. Pitzer v. Logan, 85 Va. 374 , 7 S.E. 385 (1888).

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

  1. 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.
  2. 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.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

CASE NOTES

Executor of trustee is charged with duty of executing trust. - Where property is held under a trust by his testator at the time of his death, which vested in him no discretion as to the time or manner of its disposition, an executor is charged with the duty of "executing the trust or so much thereof as remained unexecuted," under the provisions of this section and where a difference of opinion arises between an executor and the beneficiaries of the trust as to what were the rights of his testator in the matter of compensation, he may seek the aid and advice of a court of equity as to the respective rights of the parties. Williams v. Bond, 120 Va. 678 , 91 S.E. 627 (1917)(decided under prior law).

And is entitled to costs in suit to determine rights. - Where upon the death of an executor and trustee his executor, being charged under this section with executing the trust, in good faith, brings suit to determine the rights of the beneficiaries and his own testator, he is entitled to his costs in the lower court and a reasonable allowance as an attorney's fee. Williams v. Bond, 120 Va. 678 , 91 S.E. 627 (1917)(decided under prior law).

§ 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.)

CASE NOTES

Equity court may act independently of statutes. - Independently of the statutes, a court of equity, by virtue of its general jurisdiction over the administration of trusts, has power to remove trustees for cause, and to substitute others in their stead. Rankin v. Bradford, 28 Va. (1 Leigh) 163 (1829); Shelton v. Jones' Adm'x, 67 Va. (26 Gratt.) 891 (1875); Lewis' Adm'r v. Glenn, 84 Va. 947 , 6 S.E. 866 (1888)(decided under prior law).

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

  1. 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.
  2. 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.)

Law review. - For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

§ 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.

  1. 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.
  2. 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.)

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

Research References. - Virginia Forms (Matthew Bender). No. 5-1114 Show Cause Order Against Delinquent Fiduciary; No. 15-445 Order for New Fiduciary Bond, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 37, 260.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

New bond relates back. - Where a guardian of an infant, having when he was appointed given a bond with sureties, afterwards, without order requiring it, comes into court and gives another bond with other sureties, the last bond is valid and relates back to his appointment as guardian, and the sureties in the first bond are discharged. Sayers v. Cassell, 64 Va. (23 Gratt.) 525 (1873).

Section provides for summary removal of fiduciary. - This section is intended to provide a summary and informal means for the removal of an unsuitable or unfaithful fiduciary. United States Veterans' Bureau v. Thomas, 156 Va. 902 , 159 S.E. 159 (1931); Shands v. Shands, 175 Va. 156 , 7 S.E.2d 112 (1940).

Provision made is ample. - Ample provision is made by this section and the procedure specifically provided, whereby any person interested in the estate of a lunatic may, for cause shown, have the committee removed, his accounts corrected, his expenditures restrained, and such relief granted as will assure the proper fulfillment by the committee of the duties of his office, without permitting self-constituted next friends to bring, at their discretion, suits with respect to the person or estate of the lunatic. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

And court should act under this section. - When a responsible party brings to the attention of the court matters warranting the removal of a committee of an insane person, the court ordinarily should act by rule or otherwise under this section. United States Veterans' Bureau v. Thomas, 156 Va. 902 , 159 S.E. 159 (1931).

Court has power and duty to revoke authority. - Under this section, the court under the order of which a fiduciary derives his authority is vested with the right and duty to revoke and annul his power whenever from any cause it is proper. Nickels v. Horsley, 126 Va. 54 , 100 S.E. 831 (1919). See Reynolds v. Zink, 68 Va. (27 Gratt.) 29 (1876).

Under this section, the court has the power to remove a fiduciary on evidence adduced before it by any party interested, or, whenever from any cause it appears proper, to revoke and annul his powers. Shands v. Shands, 175 Va. 156 , 7 S.E.2d 112 (1940).

This section has wisely deposited with the court, under the order of which any fiduciary derives his authority, the right and duty to revoke and annul his powers whenever from any cause it appears proper. Clark v. Grasty, 210 Va. 33 , 168 S.E.2d 268 (1969).

Discretion of court. - A court is vested by this section with a very large discretion in regard to the removal of a fiduciary appointed by it, and while it is a legal discretion, to be exercised in a proper case, an appellate court ought not to interfere, except in a case where manifest injustice has been done, or where it is plain that a proper case has not been made for the exercise of the powers which the legislature has specially conferred upon that court, from which the fiduciary derives his authority. Nickels v. Horsley, 126 Va. 54 , 100 S.E. 831 (1919); Clark v. Grasty, 210 Va. 33 , 168 S.E.2d 268 (1969).

The removal of a trustee is within the reasonable discretion of the court. More is required to remove a trustee appointed by the creator of the trust than is required to remove one appointed by the court. In all cases the real guide is whether or not it is best for the trust estate that the trustee be removed. Friction between the trustee and the beneficiary is not in itself sufficient ground for removal. Some beneficial end must be achieved by the removal or it will not be justified. Clark v. Grasty, 210 Va. 33 , 168 S.E.2d 268 (1969).

Veterans' Administration may be interested party. - The United States Veterans' Bureau (now Veterans' Administration), not having a direct beneficial interest in the estate of an incompetent ex-serviceman, may not be a "party interested" in the limited and technical sense, yet where the entire fund in question is the compensation paid to the incompetent by the Veterans' Bureau (now Veterans' Administration), the Bureau is materially interested in performing its duty and paying the fund over to a proper committee. The fact that it made the award of compensation shows that it is in reality a "party interested," and has the right to ask for the removal of the committee. United States Veterans' Bureau v. Thomas, 156 Va. 902 , 159 S.E. 159 (1931). See also United States Veterans' Bureau v. Smith, 156 Va. 897 , 159 S.E. 161 (1931).

It is the duty of a guardian whose power as such is revoked to account to his wards, or to his successor as guardian, if there be one, for the estate, including evidences of claim which may have come to his hands; and if after revocation he collects any money on account of any such claim, he and his surety are accountable therefor to the parties entitled thereto; at least where such payment is made in good faith by a person who is not informed of the revocation, and who believes when he makes it that the party claiming to be guardian is so in fact, and has authority as such to receive the money. Sage v. Hammonds, 68 Va. (27 Gratt.) 651 (1876).

Grounds of removal held sufficient. - Where the brother of an executor sued the executor on claims assigned by their father sufficient in amount to consume the whole estate, and the executor refused to make any defense, an order revoking the executor's authority is authorized. Reynolds v. Zink, 68 Va. (27 Gratt.) 29 (1876).

Where a surviving partner was appointed as administrator of his deceased partner, and failed to return any inventory or appraisement within four months of the date of his qualification as required by statute, and it was clear that there were conflicting interests between the administrator, claiming in his own right as surviving partner, and the heirs at law and distributees claiming under the decedent, an order removing the administrator was plainly right. Nickels v. Horsley, 126 Va. 54 , 100 S.E. 831 (1919).

Circuit court did not abuse its discretion or err in removing brothers from their roles as co-executors because the brothers were not getting along, and as a result, the administration of the estate was suffering; the conflict between the brothers led to numerous subsequent resignations, at the expense of the estate, and the brothers could not agree on how to distribute the assets of the estate. Galiotos v. Galiotos,, 2021 Va. LEXIS 58 (June 3, 2021).

CIRCUIT COURT OPINIONS

Action to remove trustees. - Where the trustees were willing to step aside and either of two courts could entertain a § 26-3 petition to remove them, pursuant to §§ 26-46.2 and 26-48 and in the interest of justice, the beneficiary's action to remove the trustees would be transferred to the court with supervisory authority over the trust's administration. Estate of Mabon, 61 Va. Cir. 420, 2003 Va. Cir. LEXIS 126 (Richmond 2003).

Grounds of removal held sufficient. - Brother was removed as executor because his failure to account for, and pursue, his own debts to the estate, and his failure to carry out the provision of the will that required him to distribute the entire estate to the trust upon Father's death, were sufficient cause for his removal as executor. Menefee v. Menefee, 104 Va. Cir. 160, 2020 Va. Cir. LEXIS 21 (Chesapeake Jan. 23, 2020).

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$25,000" for "$15,000."

The 2015 amendments. - The 2015 amendment by c. 610 added the subsection A and B designations and added subsections C, D and E.

The 2018 amendments. - The 2018 amendment by c. 575 substituted "when there are no assets or the asset or amount" for "when the amount" in subsection A.

Law review. - For article, "Wills, Trusts, and Estates," see 35 U. Rich. L. Rev. 845 (2001).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties - Various Actions. Friend.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 12 Grant of Administration. § n 12.15 The Bond. Cox.

Virginia Forms (Matthew Bender). No. 6-721 Incapacitated Adult Checklist - Guardian/Conservator Appointment; No. 15-401 Checklist for Probate and Administration, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 75, 259.

§ 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.

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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.)

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981). For comment on statutes of limitations applicable in legal malpractice actions, see 16 U. Rich. L. Rev. 907 (1982).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 69, 317; 12A M.J. Limitation of Actions, § 55.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Object of section is to require payment of interest by fiduciary. - The true object of this section is to settle any question which otherwise might arise as to the propriety of charging fiduciaries, and other persons mentioned therein, with the interest as well as the principal of debts lost by their negligence or improper conduct. Southall's Adm'r v. Taylor, 55 Va. (14 Gratt.) 269 (1858).

Failure to proceed promptly with collection of assets due an estate is negligence, for which the personal representative may be liable under this section. Isbell v. Flippen, 185 Va. 977 , 41 S.E.2d 31 (1947).

But action is unnecessary if claim is clearly uncollectible. - Under this section, the administrator is only chargeable with money he fails to collect through his negligence or other improper conduct, and he is not required to sue for a debt due the estate when it is apparent that the debtor is unable to pay it. Virginia Sur. Co. v. Hilton, 181 Va. 952 , 27 S.E.2d 62 (1943).

An administrator is bound to plead the statute of limitations to actions on claims not asserted within the statutory period. It is his duty to interpose this plea not only to protect the decedent's estate, but also for the benefit of other creditors, or of legatees or distributees of the decedent. Gwinn v. Farrier, 159 Va. 183 , 165 S.E. 647 (1932); Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459 (1940).

But fiduciary need not plead statute when it is inapplicable. - The provision of this section that an administrator shall have no credit for a claim which he pays, knowing facts whereby recovery could be prevented, does not require him to plead the statute of limitations to a claim apparently barred, where he knows facts making the statute inapplicable. Radford v. Fowlkes, 85 Va. 820 , 8 S.E. 817 (1889).

He must make any defense decedent could have made. - No estate is lawfully administered where the personal representative has neglected or failed to make any defense of which the decedent, if living, could have availed himself. Smith v. Pattie, 81 Va. 654 (1886).

And trustee paying barred claim has no right of contribution. - The trustee of one of two joint obligors, who, in violation of this section, pays the entire debt after it has become barred by the statute of limitations, has no right of contribution against the estate of the other obligor. Turner v. Thom, 89 Va. 745 , 17 S.E. 323 (1893).

Standard of care applicable to attorneys. - The law implies a promise that an attorney will exercise a reasonable degree of care, skill, and dispatch in carrying out the business for which he is employed, and the same standard of reasonable care applies to all attorneys in the performance of their professional duties, but the contractual obligations will, of course, vary widely from client to client and case to case. Ortiz v. Barrett, 222 Va. 118 , 278 S.E.2d 833 (1981).

Liability of local attorney hired by foreign attorney. - Where a foreign attorney hires a local attorney to perform services on an hourly basis, and where the foreign attorney remains lead counsel in the action and the local attorney has no direct contact with the client, the local attorney does not escape liability to the client for his negligence in the discharge of his assigned duties since he has an implied obligation to act with reasonable care. Ortiz v. Barrett, 222 Va. 118 , 278 S.E.2d 833 (1981).

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

  1. 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.).
  2. 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.
  3. 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.
  4. 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.
  5. 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.)

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981). For comment on statutes of limitations applicable in legal malpractice actions, see 16 U. Rich. L. Rev. 907 (1982).

CIRCUIT COURT OPINIONS

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

Scope of liability. - Statute recognized the basic principle that the court could not hold a trustee, or anyone else, liable for decisions that it did not and could not have made. Rollins v. Branch Banking & Trust Co. of Va., 56 Va. Cir. 147, 2001 Va. Cir. LEXIS 146 (Roanoke 2001).

Statute clearly prohibited the imposition of liability on the trustee for failing to do what he had no ability to do. Rollins v. Branch Banking & Trust Co. of Va., 56 Va. Cir. 147, 2001 Va. Cir. LEXIS 146 (Roanoke 2001).

Under subsection D, the prohibition on recovery did not excuse a trustee from liability for failing to participate in the administration of the trust or for failing to attempt to prevent a breach of trust; thus a trustee could be held liable for a loss caused by his conduct for actions which he was entrusted to take. Rollins v. Branch Banking & Trust Co. of Va., 56 Va. Cir. 147, 2001 Va. Cir. LEXIS 146 (Roanoke 2001).

§ 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.)

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Purpose of section. - This section merely authorizes the court, in a suit against an administrator on a debt due from his decedent, to enter a judgment without an account of the transactions of the representative. Such a judgment would ordinarily carry costs with it. To prevent an estate from being depleted by having to bear the costs of litigation against it made necessary by the stubborn and imprudent attitude of the personal representative, the court, even where it enters a judgment to be paid out of the estate, may make the representative personally liable for the costs. This is the only effect and purpose of the section. In re Butler, 20 F. Supp. 995 (W.D. Va. 1937).

Judgment should recite that it is to be paid from estate. - This section does not alter the general rule that, where a judgment against a personal representative should be paid and is intended to be paid from the assets of his decedent's estate, the judgment should so recite. In re Butler, 20 F. Supp. 995 (W.D. Va. 1937).

§ 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.)

CASE NOTES

Section confers only power to order payment. - The only power that the court has under this section is to order "payment of what shall appear due" when by the commissioner's report it appears that "something" is due by the fiduciary and there is a confirmation of the report by the court. Cope v. Shedd-Carter, 175 Va. 273 , 7 S.E.2d 891 (1940)(decided under prior law).

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

  1. 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.
  2. 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.)

Law review. - For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 4 Process. § 4.03 Methods of Serving Process. Friend.

Virginia Forms (Matthew Bender). No. 5-1114 Show Cause Order Against Delinquent Fiduciary; No. 15-405 Memorandum of Facts - Guardian of Minor, et seq.

§ 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.

  1. 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.

  2. 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.
  3. 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.
  4. 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.
  5. 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.

  1. 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.
  2. 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.
  3. 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.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 10 Foreclosure of a Deed of Trust and a UCC Security Interest. § 10.2 The Mortgage Transaction, et seq. Rendleman.

Virginia Forms (Matthew Bender). No. 6-918 Written One-Price Bid, et seq.

CASE NOTES

Voidable transactions. - Virginia law deems that a conflict of interest such as a breach of faith or fiduciary duty by officers of the trustee makes a transaction voidable by the plaintiff-debtor, not void, thus rendering that defense useless against a holder in due course. Resolution Trust Corp. v. Maplewood Invs., 31 F.3d 1276 (4th Cir. 1994)(decided under prior law).

Relationship to federal law. - Because state law granted state banks, but not national banks with no principal office in Virginia, the power to act as a deed of trust trustee and foreclose, a power incidental to a national bank's real estate lending power, the National Bank Act preempted state law, and, even if "trustees" referred to a different type of trustee, deed of trust trustees fit within the catch-all provision, which applied the National Bank Act to national banks serving in any other fiduciary capacity, and, Virginia law governing fiduciaries included provisions applying explicitly to deed of trust trustees. Jaldin v. Recontrust Co., N.A., 539 Fed. Appx. 97, 2013 U.S. App. LEXIS 18073 (4th Cir. 2013), cert. denied, 572 U.S. 1115, 134 S. Ct. 2293, 189 L. Ed. 2d 174 (2014).

§ 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.

  1. 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 .
  2. 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 .
  3. 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.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties - Various Actions. Friend.

Virginia Forms (Matthew Bender). No. 1-107 Style and Commencement of Action by an Executor; No. 5-1114 Show Cause Order Against Delinquent Fiduciary; No. 6-723 Consent to Service of Process by Nonresident Guardian; No. 15-248 Appointment of Fiduciaries; No. 15-401 Checklist for Probate and Administration, et seq.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 4, 14, 347.

Editor's note. - Most of the cases below were decided under prior law.

CASE NOTES

The 1950 amendment to this section deals with fiduciaries acting in Virginia generally and not with the Virginia Wrongful Death Act. Kaufmann v. Service Trucking Co., 139 F. Supp. 1 (D. Md. 1956).

Validity of deed of trust to resident and nonresident trustees. - There is no authority for the statement that a deed of trust made in this state to two trustees, one being a resident of Virginia and the other being a nonresident, would be invalid. It seems that such a claim is impliedly contradicted by the provisions of this section. Woodhouse v. Burling, 76 F.2d 446 (D.C. Cir. 1935).

Foreign personal representative. - Since the 1950 amendment of this section a personal representative, who is not a resident of Virginia and who has not qualified or been appointed as such in the state, cannot maintain an action in a United States district court sitting in Virginia, under the Virginia Statute of Death by Wrongful Act. Holt v. Middlebrook, 214 F.2d 187 (4th Cir. 1954).

A nonresident personal representative who was not qualified in Virginia under this section could not maintain an action in a federal district court sitting in Virginia, under either the wrongful death act of Virginia or that of North Carolina, under which the personal representative is the only party having the right to sue. Mozingo v. Consolidated Constr. Co., 171 F. Supp. 396 (E.D. Va. 1959).

A nonresident personal representative as sole plaintiff cannot maintain an action for death by wrongful act in a federal court in Virginia against a resident of Virginia. The effect of this rule is to divest the federal courts in this state of jurisdiction in any action for death by wrongful act against a resident of Virginia, since there will be a citizen of Virginia on each side of the controversy and the requirements of diversity jurisdiction will not be satisfied. Rodgers v. Irvine, 161 F. Supp. 784 (W.D. Va. 1957), aff'd sub nom. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958). See note to § 8.01-50 .

Section 8.01-50 and this section prohibit an Ohio administrator from instituting an action for wrongful death in Virginia. Goranson v. Capital Airlines, 221 F. Supp. 820 (E.D. Va. 1963), cert. denied, 382 U.S. 984, 86 S. Ct. 560, 15 L. Ed. 2d 473 (1966).

Where a surviving wife was not qualified as a personal representative in any state when the wife filed a wrongful death suit in Virginia under § 26-59 and subsection B of § 8.01-50 , the wife lacked standing to maintain the action; therefore, the statute of limitations was not tolled by subsection B of § 8.01-244 and the action was properly dismissed. Fowler v. Winchester Med. Ctr., Inc., 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

Guardian appointed in another state. - This section does not require that a guardian appointed and qualified in another state must, in order to bring suit in Virginia, associate a resident coguardian as plaintiff. Vroon v. Templin, 278 F.2d 345 (4th Cir. 1960).

The amendment of 1950 did not alter in any way the inhibition placed against guardians. The words "or act" in the first sentence relate to personal representatives, but not to guardians. As to guardians the section remains unchanged, and the only prohibition against nonresidents is to their appointment in Virginia. Vroon v. Templin, 278 F.2d 345 (4th Cir. 1960).

Waiver where defendants did not properly challenge nonresident's right to maintain action. - Where defendants did not properly and seasonably challenge the nonresident administrator's right to maintain the action in the trial court, they waived the issue, and it could not be raised for the first time on appeal. Wackwitz v. Roy, 244 Va. 60 , 418 S.E.2d 861 (1992).

This section bars nonresident administrators from maintaining wrongful death actions. Wackwitz v. Roy, 244 Va. 60 , 418 S.E.2d 861 (1992).

Statute of limitations begins to run on date foreign representative is qualified in Virginia. - Overruling prior precedent as to the running of the statute of limitations, the Supreme Court of Virginia reversed a trial court's judgment dismissing a personal representative's motion for judgment on a personal injury action against a physician as untimely under subdivision B 1 of § 8.01-229 where her qualification as a personal representative in another state and her prior motion for judgment filed while she was a foreign representative had no legal effect due to her lack of standing; the statute of limitations commenced upon the date she qualified as personal representative in Virginia. Harmon v. Sadjadi, 273 Va. 184 , 639 S.E.2d 294 (2007).

McDaniel v. North Carolina Pulp Co., 198 Va. 612 , 95 S.E.2d 201 (1956), which concerned the running of the statute of limitations, was overruled as there was no basis to carve out an exception to the otherwise clear precedent that lack of standing caused a party's legal proceeding to be of no legal effect. Harmon v. Sadjadi, 273 Va. 184 , 639 S.E.2d 294 (2007).

CIRCUIT COURT OPINIONS

Statute of limitations not tolled where plaintiff not qualified as personal representative. - Plaintiff parents did not qualify as the personal representatives of their deceased child's estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation's plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law that required the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County 2005).

§ 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.)

CASE NOTES

Application of foreign guardian for removal of ward's effects. - The application of a foreign guardian, under this section and § 26-61, for the removal of the effects of his ward out of the state, is a separate and distinct proceeding from a suit by a creditor to administer the assets of the estate of the ward's deceased ancestor. Clendenning v. Conrad, 91 Va. 410 , 21 S.E. 818 (1895)(decided under prior law).

Noncompliance with section is error. - A decree ordering the payment to a foreign guardian of a ward's money without compliance with this section is erroneous. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112 (1877); Taliaferro v. Day, 82 Va. 79 (1886)(decided under prior law).

§ 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.)

Editor's note. - Most of the cases below were decided under prior law.

CASE NOTES

Provisions mandatory. - The provisions of this section are mandatory, and must be complied with before any money or other personal property belonging to a nonresident infant can be paid over to a foreign guardian. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112 (1877).

Object of notice is protection of interests. - The object of the notice required by this section is to enable parties affected by such removal to appear and protect their interest, and, if need be, prevent the removal. Clendenning v. Conrad, 91 Va. 410 , 21 S.E. 818 (1895).

Protection of rights when removal order improper. - Although the application by a foreign guardian for the removal of the assets from the Commonwealth is a summary proceeding, four weeks' notice must be given by publication. And if the court finds that the order for removal was improper, it may take all necessary steps to protect the rights of all involved. Clendenning v. Conrad, 91 Va. 410 , 21 S.E. 818 (1895).

Securing creditors. - The foreign guardian has no right to remove a homestead in money for the benefit of the children until the principal has been so secured that the creditors will get the benefit of it after the youngest of the wards has attained the age of twenty-one years, or until the further order of the court. Clendenning v. Conrad, 91 Va. 410 , 21 S.E. 818 (1895).

Discretion of court is not to be exercised arbitrarily. - The discretion of the court implied in this section is a judicial discretion, to be exercised according to the facts and not arbitrarily. Layton v. Pribble, 200 Va. 405 , 105 S.E.2d 864 (1958), holding that the facts were such that the transfer would be in the interest of the incompetent and would not prejudice the rights of any other person.

§ 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.

Sec.

§ 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.)

Research References. - Virginia Forms (Matthew Bender). No. 15-490 Affidavit by Fiduciary Accounting for Stocks and Bonds.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 26 or prior law.

CASE NOTES

Section not applicable to funds in hands of committee. - This section only applies to such fiduciaries as represent the court, and provides the means by which the court holds and controls the fund in its charge, and does not apply to funds in the hands of the committee of a lunatic. Hurt v. City of Bristol, 104 Va. 213 , 51 S.E. 223 (1905).

Executor does not become trustee. - If an executor is directed to invest funds belonging to the estate which came into his hands as executor, no trust is superadded, but that is part of his duties as executor. Rixey's Ex'rs v. Commonwealth, 125 Va. 337 , 99 S.E. 573 (1919).

Commissioner must have posted list of fiduciaries' accounts. - Before a court can make an order under this section for the investment of a ward's estate, the commissioner must have posted a list of the fiduciaries' accounts before him for settlement, at the courthouse door according to § 26-27. For failure to do so, such order may be set aside on motion. Whitehead's Adm'r v. Whitehead, 64 Va. (23 Gratt.) 376 (1873).

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

  1. 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.
  2. 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.

  1. 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.
  2. 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:
      1. 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;
      2. 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
      3. 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.
  3. 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.
  4. 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.).
  5. 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.)

Law review. - For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

CASE NOTES

Consultation with financial advisor not required. - A trustee in Virginia is not required to consult a financial advisor and will suffer no penalties or potential liability for mismanagement of trust assets so long as he invests in one of the securities listed in the statute. Scott v. United States, 186 F. Supp. 2d 664 (E.D. Va. 2002), aff'd, 328 F.3d 132 (4th Cir. 2003)(decided under prior law).

§ 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.)

CASE NOTES

Waiver of "prudent man" rule. - Where a will, which created a testamentary marital trust, provided that the trustee was to have full discretionary powers of management without being restricted to those investments authorized by § 26-40 and this section for the investment of trust funds, and provided that investment was authorized with respect to any type of real or personal property, regardless of diversification or state laws, and with respect to common stocks, unimproved real estate, nonproductive items, common trust funds and investment company shares, the testator had waived the "prudent man" rule otherwise applicable in the investment of trust assets. Hoffman v. First Va. Bank, 220 Va. 834 , 263 S.E.2d 402 (1980)(decided under prior law).

§ 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.)

Law review. - For article, "In Defense of the No Further Inquiry Rule: A Response to Professor John Langbein," see 47 Wm. & Mary L. Rev. 541 (2005).

PART B. Powers of Attorney.

Chapter 16. Uniform Power of Attorney Act.

General Provisions.

Authority.

Statutory Forms.

Miscellaneous Provisions.

Article 1. General Provisions.

§ 64.2-1600. Definitions.

For the purposes of this chapter, unless the context requires otherwise:

"Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an original agent, coagent, successor agent, and a person to which an agent's authority is delegated.

"Durable," with respect to a power of attorney, means not terminated by the principal's incapacity.

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

"Good faith" means honesty in fact.

"Incapacity" means inability of an individual to manage property or business affairs because the individual:

  1. Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
  2. Is missing or outside the United States and unable to return.

    "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

    "Power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.

    "Presently exercisable general power of appointment," with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.

    "Principal" means an individual who grants authority to an agent in a power of attorney.

    "Property" means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein.

    "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

    "Sign" means, with present intent to authenticate or adopt a record: (i) to execute or adopt a tangible symbol or (ii) to attach to or logically associate with the record an electronic sound, symbol, or process.

    "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

    "Stocks and bonds" means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

    (2010, cc. 455, 632, § 26-73; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. § 26-1 A-101 et seq.

Arkansas: A.C.A. § 28-68-101 et seq.

Colorado: C.R.S. §§ 15-14-701 et seq.

Connecticut: Conn. Gen. Stat. § 1-350 et seq.

Hawaii: HRS § 551E-1 et seq.

Idaho: Idaho Code § 15-12-101 et seq.

Iowa: Iowa Code § 633B.101 et seq.

Maine: 18-A M.R.S. § 5-901 et seq.

Montana: 72-31-301, MCA et seq.

Nebraska: R.R.S. Neb. § 30-4001 et seq.

New Mexico: N.M. Stat. Ann. § 46B-1-101 et seq.

Ohio: ORC Ann. § 1337.21 et seq.

South Carolina: S.C. Code Ann. § 62-8-101 et seq.

Utah: Utah Code Ann. § 75-9-101 et seq.

Washington: Rev. Code Wash. (ARCW) § 11.125.010 et seq.

West Virginia: W. Va. Code § 39B-1-101 et seq.

Law review. - For annual survey essay, "The Virginia Uniform Power of Attorney Act," see 44 U. Rich. L. Rev. 107 (2009).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 33 Living Wills and Power of Attorney. § 33.06 Virginia and West Virginia Uniform Power of Attorney Act. Cox.

Virginia Forms (Matthew Bender). No. 6-715 Checklist for Guardian ad litem's Report, et seq.; No. 15-114 General Power of Attorney - Short Form, et seq.; No. 16-1707 Execution by Attorney-in-Fact; No. 16-1901 General Power of Attorney - Short Form, et seq.

Michie's Jurisprudence. - For related discussion, see 14B M.J. Powers, § 2.

§ 64.2-1601. Applicability.

This chapter applies to all powers of attorney except:

  1. A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;
  2. A power to make health care decisions;
  3. A proxy or other delegation to exercise voting rights or management rights with respect to an entity;
  4. A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose; and
  5. A power to make arrangements for burial or disposition of remains pursuant to § 54.1-2825 . (2010, cc. 455, 632, § 26-74; 2012, c. 614.)

Law review. - For annual survey essay, "The Virginia Uniform Power of Attorney Act," see 44 U. Rich. L. Rev. 107 (2009).

CASE NOTES

Applicability. - Subdivision 2 was inapplicable to an ex-wife's action accessing a patient's medical records where she gained access using her position as a registered nurse to help the patient understand treatment and make informed decisions, not to decide whether the patient should be treated and what type of treatment he should undertake. Univ. of Va. Med. Ctr. v. Jordan, No. 0790-15-2, 2016 Va. App. LEXIS 30 (Feb. 2, 2016).

Although the Court of Appeals of Virginia is not convinced that there is any tension between this section and subdivision D 16 of § 32.1-127.1:03 , because obtaining one's own health records is not likely a governmental purpose, it concludes that if there is such tension, § 32.1-127.1:03 D 16, which specifically authorizes disclosures of medical records to the person holding a durable power of attorney, controls over the more general provisions of this section. Univ. of Va. Med. Ctr. v. Jordan, No. 0790-15-2, 2016 Va. App. LEXIS 30 (Feb. 2, 2016).

§ 64.2-1602. Power of attorney is durable.

A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal.

(2010, cc. 455, 632, § 26-75; 2012, c. 614.)

§ 64.2-1603. Execution of power of attorney.

A power of attorney shall be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments. A power of attorney in order to be recordable shall satisfy the requirements of § 55.1-600 .

(2010, cc. 455, 632, § 26-76; 2012, c. 614.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-600" for "55-106."

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Michie's Jurisprudence. - For related discussion, see 14B M.J. Powers, § 7.

§ 64.2-1604. Validity of power of attorney.

  1. A power of attorney executed in the Commonwealth on or after July 1, 2010, is valid if its execution complies with § 64.2-1603 .
  2. A power of attorney executed in the Commonwealth before July 1, 2010, is valid if its execution complied with the law of the Commonwealth as it existed at the time of execution.
  3. A power of attorney executed other than in the Commonwealth is valid in the Commonwealth if, when the power of attorney was executed, the execution complied with (i) the law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to § 64.2-1605 ; (ii) the requirements for a military power of attorney pursuant to 10 U.S.C. § 1044b, as amended; or (iii) the laws of the Commonwealth.
  4. Except as otherwise provided by statute other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
  5. An agent in possession of a general, special, or limited power of attorney or other writing vesting any power or authority in him shall, where the instrument is otherwise valid, be deemed to possess the powers and authority granted by such instrument notwithstanding any failure of the principal to deliver the instrument to him, and persons dealing with such agent shall have no obligation to inquire into the manner or circumstances by which such possession was acquired, provided, however, that nothing herein shall preclude the court from considering such manner or circumstances as relevant factors in any proceeding brought to terminate, suspend, or limit the authority of the agent.

    (2010, cc. 455, 632, § 26-77; 2012, c. 614.)

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

§ 64.2-1605. Meaning and effect of power of attorney.

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

(2010, cc. 455, 632, § 26-78; 2012, c. 614.)

§ 64.2-1606. Nomination of conservator or guardian; relation of agent to court-appointed fiduciary.

  1. In a power of attorney, a principal may nominate a conservator or guardian of the principal's estate or guardian of the principal's person for consideration by the court if protective proceedings for the principal's estate or person are begun after the principal executes the power of attorney.
  2. If, after a principal executes a power of attorney, a court appoints a conservator or guardian of the principal's estate or other fiduciary charged with the management of some or all of the principal's property, the agent is accountable to the fiduciary as well as to the principal. The power of attorney is not terminated and the agent's authority continues unless limited, suspended, or terminated by the court.

    (2010, cc. 455, 632, § 26-79; 2012, c. 614.)

§ 64.2-1607. When power of attorney effective.

  1. A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.
  2. If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.
  3. If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by (i) the principal's attending physician and a second physician or licensed clinical psychologist after personal examination of the principal that the principal is incapacitated within the meaning of subdivision 1 of the definition of incapacity in § 64.2-1600 or (ii) an attorney-at-law, a judge, or an appropriate governmental official that the principal is incapacitated within the meaning of subdivision 1 of the definition of incapacity in § 64.2-1600 .
  4. A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, §§ 1171 through 1179 of the Social Security Act, 42 U.S.C. § 1320d, as amended, and applicable regulations, to obtain access to the principal's health care information and communicate with the principal's health care provider.

    (2010, cc. 455, 632, § 26-80; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 14B M.J. Powers, § 4.

§ 64.2-1608. Termination of power of attorney or agent's authority.

  1. A power of attorney terminates when:
    1. The principal dies;
    2. The principal becomes incapacitated, if the power of attorney is not durable;
    3. The principal revokes the power of attorney;
    4. The power of attorney provides that it terminates;
    5. The purpose of the power of attorney is accomplished; or
    6. The principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.
  2. An agent's authority terminates when:
    1. The principal revokes the authority;
    2. The agent dies, becomes incapacitated, or resigns;
    3. Unless the power of attorney otherwise provides, an action is filed (i) for the divorce or annulment of the agent's marriage to the principal or their legal separation, (ii) by either the agent or principal for separate maintenance from the other, or (iii) by either the agent or principal for custody or visitation of a child in common with the other; or
    4. The power of attorney terminates.
  3. Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under subsection B, notwithstanding a lapse of time since the execution of the power of attorney.
  4. Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.
  5. Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.
  6. The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

    (2010, cc. 455, 632, § 26-81; 2012, cc. 57, 614.)

Editor's note. - Acts 2012, c. 57 amended former § 26-81, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendment by Acts 2012, c. 57 has been given effect in this section by rewriting subdivision B 3, which formerly read: "An action is filed for the divorce or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or."

§ 64.2-1609. Coagents and successor agents.

  1. A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, each coagent may exercise its authority independently.
  2. A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent (i) has the same authority as that granted to the original agent; and (ii) may not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.
  3. Except as otherwise provided in the power of attorney and subsection D, an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.
  4. An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal's best interest. An agent that fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.

    (2010, cc. 455, 632, § 26-82; 2012, c. 614.)

§ 64.2-1610. Reimbursement and compensation of agent.

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

(2010, cc. 455, 632, § 26-83; 2012, c. 614.)

§ 64.2-1611. Agent's acceptance.

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

(2010, cc. 455, 632, § 26-84; 2012, c. 614.)

§ 64.2-1612. Agent's duties.

  1. Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall:
    1. Act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;
    2. Act in good faith; and
    3. Act only within the scope of authority granted in the power of attorney.
  2. Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:
    1. Act loyally for the principal's benefit;
    2. Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;
    3. Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
    4. Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
    5. Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and otherwise act in the principal's best interest; and
    6. Attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:
      1. The value and nature of the principal's property;
      2. The principal's foreseeable obligations and need for maintenance;
      3. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
      4. Eligibility for a benefit, a program, or assistance under a statute or regulation.
  3. An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.
  4. An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.
  5. If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise shall be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
  6. Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.
  7. An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person; however, nothing herein is intended to abrogate any duty of the agent under the Uniform Prudent Investor Act (§ 64.2-780 et seq.).
  8. Except as otherwise provided in the power of attorney, an agent shall disclose receipts, disbursements, or transactions conducted on behalf of the principal if requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.
  9. Except as otherwise provided in the power of attorney, an agent shall, on reasonable request made by a person listed in subdivisions A 3 through A 9 of § 64.2-1614 who has a good faith belief that the principal suffers an incapacity or, if deceased, suffered incapacity at the time the agent acted, disclose to such person the extent to which he has chosen to act and the actions taken on behalf of the principal within the five years prior to either (i) the date of the request or (ii) the date of the death of the principal, if the principal is deceased at the time such request is made, and shall permit reasonable inspection of records pertaining to such actions by such person. In all cases where the principal is deceased at the time such request is made, such request shall be made within one year after the date of the death of the principal. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days. (2010, cc. 455, 632, § 26-85; 2012, c. 614.)

CASE NOTES

Creation of living trusts allowed. - Trial court properly upheld a daughter's actions in creating living trusts that disinherited the wife's heirs and provided for the daughter and son to receive decedent's entire estate where the power of attorney expressly authorized the creation of inter vivos trusts and gifts to decedent's children, the daughter acted in the decedent's best interests given the evidence that decedent was not harmed, the wife had pre-deceased the decedent, and the decedent was concerned with providing for his children. Reineck v. Lemen, 292 Va. 710 , 792 S.E.2d 269, 2016 Va. LEXIS 178 (2016).

State law violation alone did not establish nondischargeable defalcation. - While there was no doubt debtor violated § 64.2-1612 by cashing in the annuity or that he was liable for his state law violation absent bankruptcy protection, the state law violation alone did not establish nondischargeable defalcation under 11 U.S.C.S. § 523(a)(4); Bullock v. Bank Champaign, N.A., 569 U.S. 267 (2013), imposes a culpable state of mind requirement that Virginia law does not. At its core, this case demonstrated the difference between the Virginia law determination of liability and the narrower scope of nondischargeable liability under bankruptcy law. Chavis v. Mangrum (In re Mangrum), 599 Bankr. 868, 2019 Bankr. LEXIS 1505 (Bankr. E.D. Va. 2019).

CIRCUIT COURT OPINIONS

Divorce of incapacitated person. - Husband could not proceed with a divorce case by using the husband's sibling as an agent under a general power of attorney grantedbecause a general power of attorney did not permit an agent to maintain a divorce action for an incapacitated person. The circuit court further found that the husband had to first obtain a guardian to maintain the divorce. Heu v. Kim,, 2021 Va. Cir. LEXIS 7 (Fairfax County Jan. 8, 2021).

§ 64.2-1613. Exoneration of agent.

A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal's successors in interest except to the extent the provision:

  1. Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
  2. Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

    (2010, cc. 455, 632, § 26-86; 2012, c. 614.)

§ 64.2-1614. Judicial relief.

  1. In addition to the remedies referenced in § 64.2-1621 , the following persons may petition a court to construe a power of attorney or review the agent's conduct, and grant appropriate relief:
    1. The principal or the agent;
    2. A guardian, conservator, personal representative of the estate of a deceased principal, or other fiduciary acting for the principal;
    3. A person authorized to make health care decisions for the principal;
    4. The principal's spouse, parent, or descendant;
    5. An adult who is a brother, sister, niece, or nephew of the principal;
    6. A person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate;
    7. The adult protective services unit of the local department of social services for the county or city where the principal resides or is located;
    8. The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare; and
    9. A person asked to accept the power of attorney.
    1. Whether or not supplemental relief is sought in the proceeding, where an agent has violated duties of disclosure imposed by § 64.2-1612 , any person to whom such duties are owing may, for the purpose of obtaining information pertinent to the need or propriety of (i) instituting a proceeding under Chapter 20 (§ 64.2-2000 et seq.); (ii) terminating, suspending, or limiting the authority of the agent; or (iii) bringing a proceeding to hold the agent, or a transferee from such agent, liable for breach of duty or to recover particular assets or the value of such assets of a principal or deceased principal, petition a circuit court for discovery from the agent of information and records pertaining to actions taken pursuant to a power of attorney. B. 1.  Whether or not supplemental relief is sought in the proceeding, where an agent has violated duties of disclosure imposed by § 64.2-1612 , any person to whom such duties are owing may, for the purpose of obtaining information pertinent to the need or propriety of (i) instituting a proceeding under Chapter 20 (§ 64.2-2000 et seq.); (ii) terminating, suspending, or limiting the authority of the agent; or (iii) bringing a proceeding to hold the agent, or a transferee from such agent, liable for breach of duty or to recover particular assets or the value of such assets of a principal or deceased principal, petition a circuit court for discovery from the agent of information and records pertaining to actions taken pursuant to a power of attorney.
    2. The petition may be filed in the circuit court of the county or city in which the agent resides or has his principal place of employment, or, if a nonresident, in any court in which a determination of incompetency or incapacity of the principal is proper under Chapter 20 (§ 64.2-2000 et seq.), or, if a conservator or guardian has been appointed for the principal, in the court that made the appointment. The court, after reasonable notice to the agent and to the principal, if no guardian or conservator has been appointed, or to the conservator or guardian, if one has been appointed, may conduct a hearing on the petition. The court, upon the hearing on the petition and upon consideration of the interest of the principal and his estate, may dismiss the petition or may enter such order or orders respecting discovery as it may deem appropriate, including an order that the agent respond to all discovery methods that the petitioner might employ in a civil action or suit subject to the Rules of Supreme Court of Virginia. Upon the failure of the agent to make discovery, the court may make and enforce further orders respecting discovery that would be proper in a civil action subject to such Rules and may award expenses, including reasonable attorney fees, as therein provided. Furthermore, upon completion of discovery, the court, if satisfied that prior to filing the petition the petitioner had requested the information or records that are the subject of ordered discovery pursuant to § 64.2-1612, may, upon finding that the failure to comply with the request for information was unreasonable, order the agent to pay the petitioner's expenses in obtaining discovery, including reasonable attorney fees.
    3. A determination to grant or deny in whole or in part discovery sought hereunder shall not be considered a finding regarding the competence, capacity, or impairment of the principal, nor shall the granting or denial of discovery hereunder preclude the availability of other remedies involving protection of the person or estate of the principal or the rights and duties of the agent.
  2. The agent may, after reasonable notice to the principal, petition the circuit court for authority to make gifts of the principal's property to the extent not inconsistent with the express terms of the power of attorney or other writing. The court shall determine the amounts, recipients, and proportions of any gifts of the principal's property after considering all relevant factors including, without limitation, those contained in subsection C of § 64.2-1638 .
  3. Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney.
  4. In a judicial proceeding under this chapter, if the court finds that the agent breached his fiduciary duty in violation of the provisions of this chapter, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any person who petitions the court for relief under subdivisions A 1 through 8, to be paid by the agent found in violation. This provision applies to a judicial proceeding concerning a power of attorney commenced on or after July 1, 2019.

    (2010, cc. 455, 632, § 26-87; 2012, c. 614; 2019, c. 520.)

The 2019 amendments. - The 2019 amendment by c. 520 added subsection E.

CIRCUIT COURT OPINIONS

Lack of standing or capacity. - Persons who may bring a suit to remove an attorney-in-fact are precisely those persons defined in § 37.1-134.22 [now § 37.2-1018], i.e. parent, brother, sister, niece, nephew, child or other descendant, spouse, surviving spouse, and a descendant does not include collateral relatives such as a cousin; therefore, a court properly granted a demurrer in a case brought by a cousin seeking the removal of an attorney-in-fact because the cousin lacked standing and capacity to proceed, and no other action was necessary because a ward was not harmed or helped by the disclaimer of an inheritance. Turner v. Bowman, 64 Va. Cir. 354, 2004 Va. Cir. LEXIS 163 (Rockingham County 2004) (decided under former § 11-9.1 )

§ 64.2-1615. Agent's liability.

An agent that violates this chapter is liable to the principal or the principal's successors in interest for the amount required to:

  1. Restore the value of the principal's property to what it would have been had the violation not occurred; and
  2. Reimburse the principal or the principal's successors in interest for the attorney fees and costs paid on the agent's behalf.

    (2010, cc. 455, 632, § 26-88; 2012, c. 614.)

§ 64.2-1616. Agent's resignation; notice.

Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:

  1. To the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent;
  2. If there is no person described in subdivision 1, to an adult who is a spouse, child or other descendant, parent, brother, or sister of the principal;
  3. If none of the foregoing persons is reasonably available, another person reasonably believed by the agent to have sufficient interest in the principal's welfare; or
  4. If none of the foregoing persons is reasonably available, the adult protective services unit of the local department of social services for the county or city where the principal resides or is located.

    (2010, cc. 455, 632, § 26-89; 2012, c. 614.)

§ 64.2-1617. Acceptance of and reliance upon acknowledged power of attorney.

  1. For purposes of this section and § 64.2-1618 , "acknowledged" means verified before a notary public or other individual authorized to take acknowledgments.
  2. A person that in good faith accepts an acknowledged power of attorney that has been signed in accordance with § 64.2-1603 without actual knowledge that the power of attorney is void, invalid, or terminated, that the purported agent's authority is void, invalid, or terminated, or that the agent is exceeding or improperly exercising the agent's authority may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect, the agent's authority were genuine, valid, and still in effect, and the agent had not exceeded and had properly exercised the authority. The preceding sentence shall not apply to an acknowledged power of attorney that contains a forged signature of the principal.
  3. A person that is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation, any or all of the following:
    1. An agent's certification under oath of any factual matter concerning the principal, agent, or power of attorney;
    2. An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and
    3. An opinion of the counsel for the principal or the agent, or the opinion of counsel for the person, as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.
  4. An English translation or an opinion of counsel for the principal or the agent requested under this section shall be provided at the principal's expense.
  5. An agent's certification, an English translation, or an opinion of counsel shall be in recordable form if the exercise of the power requires recordation of any instrument under the laws of the Commonwealth.
  6. For purposes of this section and § 64.2-1618 , a person that conducts activities through employees and exercises commercially reasonable procedures to communicate information concerning powers of attorney among its employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney has followed such procedures and is nonetheless without actual knowledge of the fact. (2010, cc. 455, 632, § 26-90; 2012, c. 614.)

§ 64.2-1618. Liability for refusal to accept acknowledged power of attorney.

  1. Except as otherwise provided in subsection B:
    1. A person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel under subsection C of § 64.2-1617 no later than seven business days after presentation of the power of attorney for acceptance;
    2. If a person requests a certification, a translation, or an opinion of counsel under subsection C of § 64.2-1617 , the person shall accept the power of attorney no later than five business days after receipt of the certification, translation, or opinion of counsel; and
    3. A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
  2. A person is not required to accept an acknowledged power of attorney for a transaction if:
    1. The person is not otherwise required to engage in the transaction with the principal in the same circumstances, or the principal has otherwise relieved the person from an obligation to engage in the transaction with an agent representing the principal under a power of attorney;
    2. Engaging in the transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;
    3. The person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power;
    4. A request for a certification, a translation, or an opinion of counsel under subsection C of § 64.2-1617 is refused;
    5. The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under subsection C of § 64.2-1617 has been requested or provided; or
    6. The person makes, or has actual knowledge that another person has made, a report to the local adult protective services department or adult protective services hotline stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
  3. A person that refuses in violation of this section to accept an acknowledged power of attorney is subject to:
    1. A court order mandating acceptance of the power of attorney; and
    2. Liability for reasonable attorney fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.
  4. For purposes of this section, "business day" shall refer to any day other than Saturday, Sunday, or any day designated as a holiday by the Commonwealth or the federal government.

    (2010, cc. 455, 632, § 26-91; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Construction. - If a bank fails to obtain an opinion in accordance with the statute, the mandate to accept the power of attorney should date back to the date it was presented and should include a mandate to honor the transaction the principal intended to make; this ensures a bank must honor an acknowledged power of attorney unless it requests a translation, certification, or opinion of counsel, and a bank that fails to do so in the time required or refuses a power of attorney before doing so proceeds at its own peril. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

A better result would be to mandate the refusing party to honor the transaction that the agent had been instructed by the principal to make on his or her behalf, unless that party did in fact obtain a good faith certification, translation or opinion of counsel to the contrary. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

Cause of action stated under Power of Attorney Act. - Bank's demurrer was overruled because a decedent's son stated a claim under the Power of Attorney Act since if the allegations were proven, the circuit court could mandate the bank to accept the power of attorney and honor the transaction the decedent intended to make through the son as his agent; the payment by the bank to another party would be its own loss, having taken the risk of refusing the power of attorney before receiving an opinion of counsel. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

§ 64.2-1619. Principles of law and equity.

Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.

(2010, cc. 455, 632, § 26-92; 2012, c. 614.)

§ 64.2-1620. Laws applicable to financial institutions and entities.

This chapter does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.

(2010, cc. 455, 632, § 26-93; 2012, c. 614.)

§ 64.2-1621. Remedies under other law.

The remedies under this chapter are not exclusive and do not abrogate any right or remedy, including a court-supervised accounting, under the laws of the Commonwealth other than this chapter.

(2010, cc. 455, 632, § 26-94; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Statute of limitations. - When a decedent's son presented a power of attorney to a bank he was acting not only as agent but as the decedent's intended beneficiary, and the Uniform Power of Attorney Act recognized a property interest in such a beneficiary and conferred standing on the son to assert that property interest; thus, the son incurred damages as a result of the alleged violation of the Power of Attorney Act well within the five-year limitation period for property damage. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 132 (Chesapeake June 29, 2018).

Article 2. Authority.

§ 64.2-1622. Authority that requires specific grant; grant of general authority.

  1. Subject to the provisions of subsection H, an agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited or limited by another statute, agreement, or instrument to which the authority or property is subject:
    1. Create, amend, revoke, or terminate an inter vivos trust;
    2. Make a gift;
    3. Create or change rights of survivorship;
    4. Create or change a beneficiary designation;
    5. Delegate authority granted under the power of attorney;
    6. Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
    7. Exercise fiduciary powers that the principal has authority to delegate; or
    8. Have authority over the content of an electronic communication of the principal as provided by § 64.2-123 .
  2. Notwithstanding a grant of authority to do an act described in subsection A or H, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
  3. Subject to subsections A, B, D, and E, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in § 64.2-124 and §§ 64.2-1625 through 64.2-1637 .
  4. Unless the power of attorney otherwise provides and subject to subsection H, a grant of authority to make a gift is subject to § 64.2-1638 .
  5. Subject to subsections A, B, and D, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
  6. Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in the Commonwealth and whether or not the authority is exercised or the power of attorney is executed in the Commonwealth.
  7. An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.
  8. Notwithstanding the provisions of subsection A, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent shall have the authority to make gifts in any amount of any of the principal's property to any individuals or to organizations described in §§ 170(c) and 2522(a) of the Internal Revenue Code or corresponding future provisions of federal tax law, or both, in accordance with the principal's personal history of making or joining in the making of lifetime gifts. This subsection shall not in any way impair the right or power of any principal, by express words in the power of attorney, to authorize, or limit the authority of, an agent to make gifts of the principal's property.

    ( 2010, cc. 455, 632, § 26-95; 2012, c. 614; 2017, cc. 33, 80.)

The 2017 amendments. - The 2017 amendments by cc. 33 and 80 are identical, and added subdivision A 8 and made related changes; and inserted " § 64.2-124 and" in subsection C.

Law review. - For annual survey essay, "The Virginia Uniform Power of Attorney Act," see 44 U. Rich. L. Rev. 107 (2009).

For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

CASE NOTES

Change of beneficiary authorized. - Language in power of attorney authorized the daughter to change the beneficiary of an IRA where the decedent provided the attorney-in-fact with the power to manage qualified retirement plans and individual retirement accounts, including but not limited to the exercise of all rights, privileges, elections, and options that he had with regard to any individual retirement account, and the decedent obviously had the right to designate beneficiaries. Reineck v. Lemen, 292 Va. 710 , 792 S.E.2d 269, 2016 Va. LEXIS 178 (2016).

Transfers of property. - Because "sell and convey" in a power of attorney, strictly construed, was not an express grant of authority to the decedent's mother to make gifts or other transfers for inadequate consideration, the circuit court erred in holding the power of attorney expressly authorized her to give away the decedent's real and personal property; "sell and convey" contemplated a transfer be for adequate consideration and did not expressly authorize the gifts of the decedent's property granted by the mother. Davis v. Davis, 298 Va. 157 , 835 S.E.2d 888, 2019 Va. LEXIS 150 (2019).

Gifts. - Insufficient evidence supported the conclusion that a mother's transfers were in accordance with the decedent's personal history of making lifetime gifts, and thus, the circuit court erred in holding that the mother was authorized to gift the decedent's real and personal property to herself and her surviving children; the transfers shared no similarities with the decedent's prior purported gifts, and the nature, amount, purpose, and timing of the gifts made them akin to testamentary gifts. Davis v. Davis, 298 Va. 157 , 835 S.E.2d 888, 2019 Va. LEXIS 150 (2019).

Circuit court erred in concluding that the gifts made by a decedent's mother were in accordance with the prior purported gifts given by the decedent; because there was valid consideration, a 90-year lease and the use of leased property as collateral were not gifts made by a decedent. Davis v. Davis, 298 Va. 157 , 835 S.E.2d 888, 2019 Va. LEXIS 150 (2019).

§ 64.2-1623. Incorporation of authority.

  1. An agent has authority described in this article if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in §§ 64.2-1625 through 64.2-1638 , or cites the section in which the authority is described.
  2. A reference in a power of attorney to general authority with respect to the descriptive term for a subject in §§ 64.2-1625 through 64.2-1638 or a citation to a section of §§ 64.2-1625 through 64.2-1638 incorporates the entire section as if it were set out in full in the power of attorney.
  3. A principal may modify authority incorporated by reference.

    (2010, cc. 455, 632, § 26-96; 2012, c. 614.)

§ 64.2-1624. Construction of authority generally.

Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in §§ 64.2-1625 through 64.2-1638 or that grants to an agent authority to do all acts that a principal could do pursuant to subsection C of § 64.2-1622 , a principal authorizes the agent, with respect to that subject, to:

  1. Demand, receive, and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;
  2. Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;
  3. Execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal's property and attaching it to the power of attorney;
  4. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;
  5. Seek on the principal's behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;
  6. Engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;
  7. Prepare, execute, and file a record, report, or other document to safeguard or promote the principal's interest under a statute or regulation;
  8. Communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;
  9. Access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means; and
  10. Do any lawful act with respect to the subject and all property related to the subject.

    (2010, cc. 455, 632, § 26-97; 2012, c. 614.)

CASE NOTES

Acknowledging deed of trust. - Reading §§ 26-97 and 26-98 together, Virginia law clearly provides that an attorney-in-fact may acknowledge a deed of trust on behalf of the principal. Rogan v. CitiMortgage, Inc. (In re Hurt),, 2011 Bankr. LEXIS 1482 (March 31, 2011)(decided under prior law).

§ 64.2-1625. Real property.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:

  1. Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;
  2. Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;
  3. Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  4. Release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property that exists or is asserted;
  5. Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
    1. Insuring against liability or casualty or other loss;
    2. Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;
    3. Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with them; and
    4. Purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;
  6. Use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
  7. Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:
    1. Selling or otherwise disposing of them;
    2. Exercising or selling an option, right of conversion, or similar right with respect to them; and
    3. Exercising any voting rights in person or by proxy;
  8. Change the form of title of an interest in or right incident to real property; and
  9. Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

    (2010, cc. 455, 632, § 26-98; 2012, c. 614.)

CASE NOTES

Acknowledging deed of trust. - Reading §§ 26-97 and 26-98 together, Virginia law clearly provides that an attorney-in-fact may acknowledge a deed of trust on behalf of the principal. Rogan v. CitiMortgage, Inc. (In re Hurt),, 2011 Bankr. LEXIS 1482 (March 31, 2011)(decided under prior law).

§ 64.2-1626. Tangible personal property.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

  1. Demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;
  2. Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or otherwise dispose of tangible personal property or an interest in tangible personal property;
  3. Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  4. Release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;
  5. Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:
    1. Insuring against liability or casualty or other loss;
    2. Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;
    3. Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;
    4. Moving the property from place to place;
    5. Storing the property for hire or on a gratuitous bailment; and
    6. Using and making repairs, alterations, or improvements to the property; and
  6. Change the form of title of an interest in tangible personal property.

    (2010, cc. 455, 632, § 26-99; 2012, c. 614.)

§ 64.2-1627. Stocks and bonds.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:

  1. Buy, sell, and exchange stocks and bonds;
  2. Establish, continue, modify, or terminate an account with respect to stocks and bonds;
  3. Pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;
  4. Receive certificates and other evidences of ownership with respect to stocks and bonds; and
  5. Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.

    (2010, cc. 455, 632, § 26-100; 2012, c. 614.)

§ 64.2-1628. Commodities and options.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:

  1. Buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and
  2. Establish, continue, modify, and terminate option accounts.

    (2010, cc. 455, 632, § 26-101; 2012, c. 614.)

§ 64.2-1629. Banks and other financial institutions.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:

  1. Continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;
  2. Establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;
  3. Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;
  4. Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;
  5. Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;
  6. Enter a safe deposit box or vault and withdraw or add to the contents;
  7. Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  8. Make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal's order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;
  9. Receive for the principal and act upon a sight draft, warehouse receipt, or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;
  10. Apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler's checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and
  11. Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

    (2010, cc. 455, 632, § 26-102; 2012, c. 614.)

§ 64.2-1630. Operation of entity or business.

Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:

  1. Operate, buy, sell, enlarge, reduce, or terminate an ownership interest;
  2. Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;
  3. Enforce the terms of an ownership agreement;
  4. Initiate, participate in, submit to alternative dispute resolution of, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;
  5. Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;
  6. Initiate, participate in, submit to alternative dispute resolution of, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;
  7. With respect to an entity or business owned solely by the principal:
    1. Continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;
    2. Determine (i) the location of its operation; (ii) the nature and extent of its business; (iii) the methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation; (iv) the amount and types of insurance carried; and (v) the mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;
    3. Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and
    4. Demand and receive money due or claimed by the principal or on the principal's behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;
  8. Put additional capital into an entity or business in which the principal has an interest;
  9. Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;
  10. Sell or liquidate all or part of an entity or business;
  11. Establish the value of an entity or business under a buyout agreement to which the principal is a party;
  12. Prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments; and
  13. Pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

    (2010, cc. 455, 632, § 26-103; 2012, c. 614.)

§ 64.2-1631. Insurance and annuities.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:

  1. Continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal that insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;
  2. Procure new, different, and additional contracts of insurance and annuities for the principal and the principal's spouse, children, and other dependents and select the amount, type of insurance or annuity, and mode of payment;
  3. Pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;
  4. Apply for and receive a loan secured by a contract of insurance or annuity;
  5. Surrender and receive the cash surrender value on a contract of insurance or annuity;
  6. Exercise an election;
  7. Exercise investment powers available under a contract of insurance or annuity;
  8. Change the manner of paying premiums on a contract of insurance or annuity;
  9. Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;
  10. Apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;
  11. Collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;
  12. Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and
  13. Pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

    (2010, cc. 455, 632, § 26-104; 2012, c. 614.)

§ 64.2-1632. Estates, trusts, and other beneficial interests.

  1. In this section, "estate, trust, or other beneficial interest" means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be entitled to a share or payment.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to:
    1. Accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;
    2. Demand or obtain money or another thing of value to which the principal is, may become, or claims to be entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;
    3. Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;
    4. Initiate, participate in, submit to alternative dispute resolution of, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;
    5. Initiate, participate in, submit to alternative dispute resolution of, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;
    6. Conserve, invest, disburse, or use anything received for an authorized purpose;
    7. Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor; and
    8. Reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.

      (2010, cc. 455, 632, § 26-105; 2012, c. 614.)

§ 64.2-1633. Claims and litigation.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

  1. Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;
  2. Bring an action to determine adverse claims or intervene or otherwise participate in litigation;
  3. Seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;
  4. Make or accept a tender, offer of judgment, or admission of facts; submit a controversy on an agreed statement of facts; consent to examination; and bind the principal in litigation;
  5. Submit to alternative dispute resolution, settle, and propose or accept a compromise;
  6. Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, and receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;
  7. Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee that affects an interest of the principal in property or other thing of value;
  8. Pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and
  9. Receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

    (2010, cc. 455, 632, § 26-106; 2012, c. 614.)

§ 64.2-1634. Personal and family maintenance.

  1. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:
    1. Perform the acts necessary to maintain the customary standard of living of the principal, the principal's spouse, and the following individuals, whether living when the power of attorney is executed or later born:
      1. The individuals legally entitled to be supported by the principal; and
      2. The individuals whom the principal has customarily supported or indicated the intent to support;
    2. Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;
    3. Provide living quarters for the individuals described in subdivision 1 by:
      1. Purchase, lease, or other contract; or
      2. Paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;
    4. Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for the individuals described in subdivision 1;
    5. Pay expenses for necessary health care and custodial care on behalf of the individuals described in subdivision 1;
    6. Act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, §§ 1171 through 1179 of the Social Security Act, 42 U.S.C. § 1320d, as amended, and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of the Commonwealth to consent to health care on behalf of the principal;
    7. Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in subdivision 1;
    8. Maintain credit and debit accounts for the convenience of the individuals described in subdivision 1 and open new accounts; and
    9. Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.
  2. Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.

    (2010, cc. 455, 632, § 26-107; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Divorce of incapacitated person. - Husband could not proceed with a divorce case by using the husband's sibling as an agent under a general power of attorney grantedbecause a general power of attorney did not permit an agent to maintain a divorce action for an incapacitated person. The circuit court further found that the husband had to first obtain a guardian to maintain the divorce. Heu v. Kim,, 2021 Va. Cir. LEXIS 7 (Fairfax County Jan. 8, 2021).

§ 64.2-1635. Benefits from governmental programs or civil or military service.

  1. In this section, "benefits from governmental programs or civil or military service" means any benefit, program, or assistance provided under a statute or regulation including, but not limited to, Social Security, Medicare, Medicaid, and the Department of Veterans Affairs.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:
    1. Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in subdivision A 1 of § 64.2-1634 and for shipment of their household effects;
    2. Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose;
    3. Enroll in, apply for, select, reject, change, amend, or discontinue, on the principal's behalf, a benefit or program;
    4. Prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or regulation;
    5. Initiate, participate in, submit to alternative dispute resolution of, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or regulation; and
    6. Receive the financial proceeds of a claim described in subdivision 4 and conserve, invest, disburse, or use for a lawful purpose anything so received. (2010, cc. 455, 632, § 26-108; 2012, c. 614.)

§ 64.2-1636. Retirement plans.

  1. In this section, "retirement plan" means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:
    1. An individual retirement account under Internal Revenue Code 26 U.S.C. § 408, as amended;
    2. A Roth individual retirement account under Internal Revenue Code 26 U.S.C. § 408A, as amended;
    3. A deemed individual retirement account under Internal Revenue Code 26 U.S.C. § 408(q), as amended;
    4. An annuity or mutual fund custodial account under Internal Revenue Code 26 U.S.C. § 403(b), as amended;
    5. A pension, profit-sharing, stock bonus, or other retirement plan qualified under Internal Revenue Code 26 U.S.C. § 401(a), as amended;
    6. A plan under Internal Revenue Code 26 U.S.C. § 457(b), as amended; and
    7. A nonqualified deferred compensation plan under Internal Revenue Code 26 U.S.C. § 409A, as amended.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:
    1. Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;
    2. Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;
    3. Establish a retirement plan in the principal's name;
    4. Make contributions to a retirement plan;
    5. Exercise investment powers available under a retirement plan; and
    6. Borrow from, sell assets to, or purchase assets from a retirement plan.

      (2010, cc. 455, 632, § 26-109; 2012, c. 614.)

§ 64.2-1637. Taxes.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:

  1. Prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code 26 U.S.C. § 2032A, as amended, closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following 25 tax years;
  2. Pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;
  3. Exercise any election available to the principal under federal, state, local, or foreign tax law; and
  4. Act for the principal in all tax matters for all periods before the Internal Revenue Service or other taxing authority.

    (2010, cc. 455, 632, § 26-110; 2012, c. 614.)

§ 64.2-1638. Gifts.

  1. In this section, a gift "for the benefit of" a person includes a gift to a trust, a custodial trust under the Uniform Custodial Trust Act (§ 64.2-900 et seq.), an account under the Uniform Transfers to Minors Act (§ 64.2-1900 et seq.), and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code 26 U.S.C. § 529, as amended.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:
    1. Make outright to, or for the benefit of, a person a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code 26 U.S.C. § 2503(b), as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal's spouse agrees to consent to a split gift pursuant to Internal Revenue Code 26 U.S.C. § 2513, as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and
    2. Consent, pursuant to Internal Revenue Code 26 U.S.C. § 2513, as amended, to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.
  3. An agent may make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including:
    1. The value and nature of the principal's property;
    2. The principal's foreseeable obligations and need for maintenance;
    3. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
    4. Eligibility for a benefit, a program, or assistance under a statute or regulation; and
    5. The principal's personal history of making or joining in making gifts.

      (2010, cc. 455, 632, § 26-111; 2012, c. 614.)

CASE NOTES

Gift limit. - Because the cost-of-living adjustment resulted in a gift limit of approximately $14,000 per recipient, even if a decedent's mother was expressly authorized to gift the decedent's property, the circuit court erred in not applying that $14,000 per recipient limit to the over $2 million of property that the mother transferred to herself and her surviving children. Davis v. Davis, 298 Va. 157 , 835 S.E.2d 888, 2019 Va. LEXIS 150 (2019).

Article 3. Statutory Forms.

§ 64.2-1639. Agent's certification.

The following optional form may be used by an agent to certify facts concerning a power of attorney. AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT'S AUTHORITY State of .................... County/City of .................... I, .................... (Name of Agent), certify under penalty of perjury that .................... (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated .................... I further certify that to my knowledge: (1) The Principal is alive and has not revoked the power of attorney or my authority to act under the power of attorney and the power of attorney and my authority to act under the power of attorney have not terminated; (2) If the power of attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred; (3) If I was named as a successor agent, the prior agent is no longer able or willing to serve; and (4) ........................................................................ ............................................................................ ............................................................................ ............................................................................ (Insert other relevant statements) SIGNATURE AND ACKNOWLEDGMENT .................... .................... Agent's Signature Date Agent's Name Printed .................... .................... Agent's Address .................... Agent's Telephone Number This document was acknowledged before me on ...................., (Date) by .................... (Name of Agent) .................... .................... Signature of Notary My commission expires: .................... (Seal, if any) Notary Registration Number: .................... This document prepared by: ....................

(2010, cc. 455, 632, § 26-113; 2012, c. 614.)

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Research References. - Virginia Forms (Matthew Bender). No. 15-123 Certification of Validity of Power of Attorney and Agent's Authority; No. 16-1904 Affidavit Affirming Nontermination of Power of Attorney.

Article 4. Miscellaneous Provisions.

§ 64.2-1640. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

(2010, cc. 455, 632, § 26-114; 2012, c. 614.)

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

§ 64.2-1641. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.), but does not modify, limit, or supersede § 101(c) of that act (15 U.S.C. § 7001(c)) or authorize electronic delivery of any of the notices described in § 103(b) of that act (15 U.S.C. § 7003(b)).

(2010, cc. 455, 632, § 26-115; 2012, c. 614.)

§ 64.2-1642. Effect on existing powers of attorney.

Except as otherwise provided in this chapter, on July 1, 2010:

  1. This chapter applies to a power of attorney created before, on, or after July 1, 2010;
  2. This chapter applies to a judicial proceeding concerning a power of attorney commenced on or after July 1, 2010;
  3. This chapter applies to a judicial proceeding concerning a power of attorney commenced before July 1, 2010, unless the court finds that application of a provision of this chapter would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies; and
  4. Notwithstanding any other provision of this chapter, an act done before July 1, 2010, is not affected by this chapter.

    (2010, cc. 455, 632, § 26-116; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 14B M.J. Powers, § 2.

PART C. Guardianship of Minor.

Chapter 17. Appointment of Guardian.

Sec.

§ 64.2-1700. Natural guardians.

The parents of an unmarried minor child are the joint natural guardians of the person of such child with equal legal powers and legal rights with regard to such child, provided that the parents are living together, are respectively competent to transact their own business, and are not otherwise unsuitable. Upon the death of either parent, the survivor shall be the natural guardian of the person of such child. If either parent has abandoned the family, the other parent shall be the natural guardian of the person of such child.

(Code 1919, § 5320; 1930, p. 687; Code 1950, § 31-1 ; 1999, c. 16; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 14-202 Custody Upon Death or Incapacity of a Parent; No. 15-106 Will Giving Entire Estate to Spouse with Trust for Children in the Event Spouse Predeceases Testator; No. 15-209 Appointment of Guardian for Minor Children; No. 15-423 Inventory for Estate of Minor, et seq.

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, §§ 4-6, 13.

Editor's note. - The annotations below were decided under former similar statutory provisions in Title 31 or prior law.

CASE NOTES

Guardianship, legal custody distinguished. - The distinction between "legal custody" and "guardianship" is a reflection of the extent of the power over and the responsibility to the child involved in each. Thus, in the Commonwealth, legal custody is the right to have physical charge of the child and generally direct the day-to-day activities of the child's life. Guardianship of the person and estate of a child, by contrast, is a broader power to have the custody of the ward and the right to take possession of the ward's estate, real and personal, and out of the proceeds of such estate provide for the ward's maintenance and education. Additionally, the legal custodian, while being required to provide the child, is not fiduciary or guarantor of the child. Rather, it is the guardian of the person and estate who carries the burden of managing the ward's estate and making good the lawful debts of his ward. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Role of guardian. - Although the Code of Virginia does not define the term "guardian," implicit in the statutes is a recognition that a guardian is a person who has either the custody and control of the estate of a minor or the custody of the person of a minor, or both. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

The authority conferred by this section is limited to those named in the statute, and does not extend to grandparents. Hayes v. Strauss, 151 Va. 136 , 144 S.E. 432 (1928).

Second marriage does not deprive a mother of the right to custody of her child, where there is no legal guardian of the child. Armstrong v. Stone, 50 Va. (9 Gratt.) 102 (1852).

Upon the death of the parent who has held custody under a divorce decree, the right to custody automatically inures to the surviving parent. Judd v. Van Horn, 195 Va. 988 , 81 S.E.2d 432 (1954).

Custody was properly awarded to the mother (rather than the stepmother or grandmother) after the death of the child's father, who had previously been awarded custody after divorce and remarriage. Jones v. Henson, 202 Va. 738 , 120 S.E.2d 286 (1961).

Duty to support children. - As a parent's duty to support children is based largely upon the right to their custody and control, it follows that a mother, after death of the father, has a duty to support her children. Commonwealth v. Shepard, 212 Va. 843 , 188 S.E.2d 99 (1972).

Burden of showing existence of circumstances which would deprive the parents of their right to custody is on the person opposing the right, and the evidence justifying the separation of a child from its parents must be cogent and convincing. Phillips v. Kiraly, 200 Va. 345 , 105 S.E.2d 855 (1958); Jones v. Henson, 202 Va. 738 , 120 S.E.2d 286 (1961).

Hostility of divorced parents toward each other as grounds for denying either custody. - In a custody dispute arising out of a divorce action, the conscientious concern that if the children were placed in the custody of either parent, the open hostility that the parties have exhibited toward each other would be harmful to the children, being one common to most divorce cases involving custody disputes, did not, standing alone, constitute an extraordinary reason for taking a child from its parent, or parents. James v. James, 230 Va. 51 , 334 S.E.2d 551 (1985).

Necessity of notice prior to transfer proceeding. - Reasonable notice to all interested parties is required in a proceeding involving a private petition for the transfer of guardianship of a minor child to protect the rights of such parties and to ensure the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Incorrect use of balancing test in transfer analysis. - Where it is established that the petition seeking legal guardianship of the person of a minor child is unopposed by the child's natural guardian(s) and occurs subsequent to or contemporaneously with a voluntary temporary transfer of custody to the prospective legal guardian of the person of the child, the chancellor, in determining whether to grant the petition, applied an incorrect standard by balancing a potential financial benefit to the prospective legal guardian of the person against the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Showing of abuse. - Absent some showing that plaintiff had been divested of or had abused her statutory capacity as natural guardian, under this section, she remained the proper person to receive payments and to be the contingent payee for those funds. Parrish v. Jessee, 250 Va. 514 , 464 S.E.2d 141 (1995).

CIRCUIT COURT OPINIONS

Duty to support children. - Where the decedent died just after being born, the administrator was not entitled to collect under the parents' homeowners' policy that excluded residents of the household; the decedent was a resident of household, in part, because under § 31-1 , the parents had a duty to support and protect the decedent. Harrell v. Shelby Cas. Ins. Co., 58 Va. Cir. 484, 2002 Va. Cir. LEXIS 165 (Norfolk 2002).

Residence of minor. - Parent has a duty imposed by statute and natural law to support and protect his legitimate children; infant child who died from injuries from a traffic accident and who had spent her entire life in hospitals was a permanent resident of her parents' household. Harrell v. Shelby Cas. Ins. Co., 58 Va. Cir. 484, 2002 Va. Cir. LEXIS 165 (Norfolk 2002).

OPINIONS OF THE ATTORNEY GENERAL

Authority of court inherent to appoint guardian ad litem. - The Circuit Court may appoint a guardian ad litem in proceedings pending before the Virginia Workers' Compensation Commission. See opinion of Attorney General to the Honorable Charles N. Dorsey, Judge, Twenty-third Judicial Circuit, 13-006, 2013 Va. AG LEXIS 26 (4/19/13).

§ 64.2-1701. Testamentary guardians.

  1. Every parent may by will appoint (i) a guardian of the person of his minor child and (ii) a guardian for the estate bequeathed or devised by the parent to his minor child for such time during the minor's infancy as the parent directs. A guardian of a minor's estate shall have custody and control of the estate committed to his care. A guardian of the person of a minor other than a parent is not entitled to custody of the person of the minor so long as either of the minor's parents is living and such parent is a fit and proper person to have custody of the minor.
  2. The appointment of any guardian pursuant to subsection A shall be void if the guardian (i) renounces the guardianship or (ii) fails to appear in the court in which the will is admitted to probate within six months after the probate to accept the guardianship and give any bond required under § 64.2-1704 . (Code 1919, §§ 5314, 5315; 1930, p. 686; Code 1950, §§ 31-2, 31-3; 1989, c. 535; 1999, c. 16; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 14-202 Custody Upon Death or Incapacity of a Parent; No. 15-209 Appointment of Guardian for Minor Children; No. 15-405 Memorandum of Facts - Guardian of Minor, et seq.

CASE NOTES

Wife has no authority to appoint a testamentary guardian for a niece of her husband. Taliaferro v. Day, 82 Va. 79 (1886)(decided under prior law).

If two persons be appointed testamentary guardians, the office is joint and several and either may qualify without the other, and without summoning the other to accept or renounce the guardianship. Kevan v. Waller, 38 Va. (11 Leigh) 414 (1840)(decided under prior law).

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court did not have the authority to appoint maternal grandparents as guardians over their minor grandchild while the child's father was living and retained legal custody of the child. Moreover, an available and appropriate legal avenue existed for the grandparents in the Juvenile and Domestic Relations District Court in the form of a petition for joint custody with the father. In re Redacted,, 2020 Va. Cir. LEXIS 481 (Fairfax County Dec. 2, 2020).

§ 64.2-1702. Appointment of guardians.

The circuit court or the circuit court clerk of any county or city in which a minor resides or, if the minor is an out-of-state resident, in which the minor has any estate may appoint a guardian for the estate of the minor and may appoint a guardian for the person of the minor unless a guardian has been appointed for the minor pursuant to § 64.2-1701 .

(Code 1919, § 5316; 1926, p. 588; 1928, pp. 25, 1085; 1930, p. 686; 1938, p. 4; 1942, p. 205; 1944, p. 28; Code 1950, § 31-4; 1989, c. 55; 1999, c. 16; 2012, c. 614.)

CASE NOTES

Section does not affect power of chancery court to appoint. - The chancery courts in this state have always had the power to appoint guardians. The power is not taken from them by this statute. Durrett v. Davis, 65 Va. (24 Gratt.) 302 (1874)(decided under prior law).

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court did not have the authority to appoint maternal grandparents as guardians over their minor grandchild while the child's father was living and retained legal custody of the child. Moreover, an available and appropriate legal avenue existed for the grandparents in the Juvenile and Domestic Relations District Court in the form of a petition for joint custody with the father. In re Redacted,, 2020 Va. Cir. LEXIS 481 (Fairfax County Dec. 2, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Authority of court inherent to appoint guardian ad litem. - The Circuit Court may appoint a guardian ad litem in proceedings pending before the Virginia Workers' Compensation Commission. See opinion of Attorney General to the Honorable Charles N. Dorsey, Judge, Twenty-third Judicial Circuit, 13-006, 2013 Va. AG LEXIS 26 (4/19/13).

§ 64.2-1703. Nomination of guardians.

  1. A minor who is at least 14 years old may, in the presence of the court or clerk, or in writing acknowledged before any officer qualified to take acknowledgments, nominate his own guardian for the estate or person of the minor, who shall be appointed if the court or clerk find that the guardian nominated is suitable and competent. If the guardian nominated by the minor is not appointed, if the minor resides without the Commonwealth, or if the court or clerk finds that the guardian nominated is not suitable and competent, the court or clerk may nominate and appoint a guardian for the minor in the same manner as if the minor were less than 14 years old.
  2. In no case shall any person not related to the minor be appointed guardian until 30 days have elapsed since the death or disqualification of any natural or testamentary guardians and the minor's next of kin have had an opportunity to petition the court for appointment and unless the court or clerk is satisfied that such nonrelated person is competent to perform the duties of his office.

    (Code 1919, § 5317; 1926, p. 589; 1928, p. 1085; 1946, p. 223; Code 1950, § 31-5; 1954, c. 468; 1999, c. 16; 2012, c. 614.)

Editor's note. - Most of the cases below were decided under prior law.

CASE NOTES

Role of guardian. - Although the Code of Virginia does not define the term "guardian," implicit in the statutes is a recognition that a guardian is a person who has either the custody and control of the estate of a minor or the custody of the person of a minor, or both. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Grounds for denial of guardianship award. - Where it appears that the parties are attempting to accomplish some fraud or abuse of the power of guardianship, the transfer is not in the best interests of the child. Additionally, the chancellor, in determining the best interests of the child, may decline to award guardianship to any person deemed by him to be incompetent to discharge the duties of that office. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Necessity of notice prior to transfer proceeding. - Reasonable notice to all interested parties is required in a proceeding involving a private petition for the transfer of guardianship of a minor child to protect the rights of such parties and to ensure the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Use of best interests analysis in transfer decision. - Where the grandparents had legal custody of the child, the chancellor's consideration of a petition for transfer of guardianship is limited to a determination of whether the transfer is in the best interests of the child, and the chancellor should therefore deny such a petition only where it appears from the record that the transfer of guardianship of the person would be detrimental to the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Incorrect use of balancing test in transfer analysis. - Where it is established that the petition seeking legal guardianship of the person of a minor child is unopposed by the child's natural guardian(s) and occurs subsequent to or contemporaneously with a voluntary temporary transfer of custody to the prospective legal guardian of the person of the child, the chancellor, in determining whether to grant the petition, applied an incorrect standard by balancing a potential financial benefit to the prospective legal guardian of the person against the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Insurer may condition coverage on obtaining guardianship. - Because the statutory definition of legal custody in this Commonwealth includes the power to direct medical care, legal guardianship of the person was not a necessary legal status for grandparents who had such custody to obtain to direct such care for their granddaughter. However, the status of legal custodian does not require a non-governmental entity such as their insurance carrier to recognize their financial responsibility for her medical care. Therefore, their insurance carrier could decline to recognize the child as an insured person until the grandparents obtained the status of legal guardians of the person in order to comply with their contract. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court did not have the authority to appoint maternal grandparents as guardians over their minor grandchild while the child's father was living and retained legal custody of the child. Moreover, an available and appropriate legal avenue existed for the grandparents in the Juvenile and Domestic Relations District Court in the form of a petition for joint custody with the father. In re Redacted,, 2020 Va. Cir. LEXIS 481 (Fairfax County Dec. 2, 2020).

§ 64.2-1704. Guardian's bond.

  1. Before any person may be appointed the guardian for the estate of a minor, the person, in the circuit court or before the circuit court clerk, shall take an oath that he will faithfully perform the duties of his office to the best of his judgment and give his bond in an amount at least equal to the value of the minor's personal estate coming under his control.
  2. Every guardian for the estate of a minor shall provide surety upon his bond unless it is waived pursuant to § 64.2-1411 or, in the case of a testamentary guardian, it is waived by the testator's will. However, upon the motion of the court or clerk or upon the motion of another interested person, the court or clerk may at any time require surety upon a guardian's bond. Every order appointing a guardian shall state whether or not surety is required.
  3. If the same guardian qualifies upon the estate of two or more minors who are members of the same family, such guardian shall only be required to give one guardianship bond.

    (Code 1919, § 5318; 1926, p. 589; 1928, p. 1085; Code 1950, § 31-6; 1954, c. 398; 1995, c. 225; 1999, c. 16; 2012, c. 614.)

Research References. - Virginia Forms (Matthew Bender). No. 15-209 Appointment of Guardian for Minor Children.

§ 64.2-1705. Redetermination of guardian's bond.

Upon a guardian's request, the clerk shall redetermine the penalty of the guardian's bond in light of any reduction in the current market value of the estate under the guardian's control, whether such reduction is due to disbursements, distributions, valuation of assets, or disclaimer of fiduciary power, if such reduction is reflected in an accounting that has been confirmed by the circuit court or an inventory that has been approved by the commissioner of accounts. This provision shall not apply to any bond set by the court.

(1999, c. 16, § 31-6.1; 2012, c. 614.)

§ 64.2-1706. When court may appoint temporary guardians; bond; powers and duties.

Until a guardian appointed by the circuit court or clerk has given his bond, or while there is no guardian, the court or clerk may appoint a temporary guardian, who shall give his bond pursuant to § 64.2-1704 . Any temporary guardian during the period of his guardianship shall have all the powers and responsibilities of and shall perform all the duties of a guardian.

(Code 1919, § 5319; Code 1950, § 31-7; 1999, c. 16; 2012, c. 614.)

Chapter 18. Custody and Care of Ward and Estate.

Sec.

§ 64.2-1800. Custody, care, and education of ward; ward's estate.

Unless a guardian of the person of a minor is appointed by a parent, the circuit court, or the circuit court clerk, and except as otherwise provided in §§ 64.2-1700 and 64.2-1701 , a guardian of a minor's estate who is appointed pursuant to Chapter 17 (§ 64.2-1700 et seq.) shall have custody of his ward. The guardian of a minor's estate shall have the possession, care, and management of the minor's estate, real and personal, and, after first taking into account the minor's other sources of income, support rights, and other reasonably available resources of which the guardian is aware, shall provide for the minor's health, education, maintenance, and support from the income of the minor's estate and, if income is not sufficient, from the corpus of the minor's estate.

(Code 1919, § 5320; 1930, p. 686; Code 1950, § 31-8; 1989, c. 535; 1999, c. 16; 2011, c. 113; 2012, c. 614.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the amendment to former § 31-8 by Acts 1993, c. 929, cl. 1, would become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Research References. - Virginia Forms (Matthew Bender). No. 6-736 Petition by Guardian to Expend Corpus of Ward's Estate, et seq.

CASE NOTES

Guardian is not personally responsible for the support and education of his wards unless he consents to become bound for them. Barnum v. Frost's Adm'r, 58 Va. (17 Gratt.) 398 (1867)(decided under prior law).

But ward's estate is responsible. - A guardian placing his ward with a third person to be supported and educated, though he may undertake to pay the ward's expenses, does not thereby relieve the ward's estate, but the person with whom the ward has been placed may proceed in equity to subject the profits of the ward's estate to the payment of her expenses. Barnum v. Frost's Adm'r, 58 Va. (17 Gratt.) 398 (1867)(decided under prior law).

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court did not have the authority to appoint maternal grandparents as guardians over their minor grandchild while the child's father was living and retained legal custody of the child. Moreover, an available and appropriate legal avenue existed for the grandparents in the Juvenile and Domestic Relations District Court in the form of a petition for joint custody with the father. In re Redacted,, 2020 Va. Cir. LEXIS 481 (Fairfax County Dec. 2, 2020).

§ 64.2-1801. Parental duty of support.

  1. Notwithstanding the provisions of § 64.2-1800 , a guardian of a minor's estate shall not make any distribution of income or corpus of the minor's estate to or for the benefit of a ward who has a living parent, whether or not the guardian is such parent, except to the extent that the distribution is authorized by (i) the deed, will, or other instrument under which the estate is derived or (ii) the circuit court, upon a finding that (a) the parent is unable to completely fulfill the parental duty of supporting the minor, (b) the parent cannot for some reason be required to provide such support, or (c) a proposed distribution is beyond the scope of parental duty of support in the circumstances of a specific case. The existence of a parent-child relationship shall be determined in accordance with the provisions of § 64.2-102 . The circuit court's authorization may be contained in the order appointing the guardian or it may be obtained at any time prior to the distribution in question; however, in extenuating circumstances where the interests of equity so require, the court's authorization may be obtained after the distribution in question.
  2. A guardian who desires to make any distribution specified in subsection A that is not authorized by an existing court order or a deed, will, or other instrument under which the estate is derived shall file a petition in the circuit court wherein his accounts may be settled. The petition shall name the ward as a defendant and set forth the reasons why such distribution is appropriate. If the ward is 14 years of age or older, the guardian shall give notice of the petition to the ward at least five days before filing the petition. The court or clerk shall appoint an attorney-at-law as guardian ad litem to represent the ward. Proceedings on the petition shall conform to the procedures governing a civil action and the evidence may be taken orally. No attorney fees shall be taxed in the costs and no writ tax shall be required upon the petition. The court may fix reasonable attorney fees for services in connection with the filing of the petition, and the court shall fix the guardian ad litem's fee. Such fees shall be paid out of the estate unless the court directs that they be paid personally by the guardian. The clerk shall receive a fee as provided in subdivision A 18 of § 17.1-275 for all services rendered thereon, to be paid by the guardian out of the estate. Any notice required to be served under this section may be served by any person other than the guardian.
  3. Notwithstanding subsection B, if the court determines that an emergency exists, an order authorizing a distribution may be entered without the appointment of a guardian ad litem, provided that the court makes such further provisions in its order for the protection of the ward's estate as it may deem proper in each case.

    (1999, c. 16, § 31-8.1; 2002, c. 832; 2005, c. 681; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court did not have the authority to appoint maternal grandparents as guardians over their minor grandchild while the child's father was living and retained legal custody of the child. Moreover, an available and appropriate legal avenue existed for the grandparents in the Juvenile and Domestic Relations District Court in the form of a petition for joint custody with the father. In re Redacted,, 2020 Va. Cir. LEXIS 481 (Fairfax County Dec. 2, 2020).

§ 64.2-1802. Parental duty of support; limited authority of commissioner of accounts.

A commissioner of accounts for the jurisdiction where a guardian qualifies may authorize the same distributions under the same circumstances as the circuit court may authorize under subsection A of § 64.2-1801 , except that (i) the total distributions authorized in any one year shall not exceed $5,000 and (ii) the commissioner of accounts shall, in his report to the court on the guardian's next accounting, explain the necessity for the distributions so authorized. The provisions of subsection B of § 64.2-1801 shall not apply to proceedings under this section, but the commissioner shall give five days' written notice of the scheduled hearing date to any minor who is 14 years of age or older. The commissioner of accounts shall not charge a fee in excess of $100 for such hearing.

(1999, c. 16, § 31-8.2; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$5,000" for "$3,000."

§ 64.2-1803. Termination of guardianship.

Unless the guardian of a minor's estate dies, is removed, or resigns the guardianship, the guardian shall continue in office until the minor attains the age of majority or, in the case of testamentary guardianship, until the termination of the period set forth in the testator's will. At the expiration of the guardianship, the guardian shall deliver and pay all the estate and money in his possession, or with which he is chargeable, to the person entitled to receive such estate and money.

(Code 1919, § 5320; 1930, p. 687; Code 1950, § 31-9; 1972, c. 825; 1973, c. 401; 1999, c. 16; 2012, c. 614.)

§ 64.2-1804. Powers of courts over guardians.

The circuit courts may hear and determine all matters between guardians and their wards, require settlements of guardianship accounts, remove any guardian for neglect or breach of trust and appoint another guardian for the ward, and make any order for the custody, health, maintenance, education, and support of a ward and the management, disbursement, preservation, and investment of the ward's estate.

(Code 1919, § 5326; Code 1950, § 31-14; 1999, c. 16; 2012, c. 614.)

CASE NOTES

Jurisdiction of chancery. - Under this section, the court of chancery, as representing the parental and protecting power of the Commonwealth, has jurisdiction to determine controversies concerning the guardianship of a minor, to make orders for his support, if any property capable of being so applied be within the reach of the court, and in extreme cases even to control the right of a father to the custody of his child. Buchanan v. Buchanan, 170 Va. 458 , 197 S.E. 426 (1938)(decided under prior law).

§ 64.2-1805. Powers of guardian.

  1. Whether appointed by a parent, the circuit court, or the circuit court clerk, a guardian of a ward's estate shall have the powers set forth in § 64.2-105 as of the date the guardian acts. A guardian of a ward's estate shall also have the following powers:
    1. To ratify or reject a contract entered into by the ward;
    2. To pay any sum distributable for the benefit of the ward by paying the sum directly to the ward, to the provider of goods and services that have been furnished to the ward, to any individual or facility that is responsible for or has assumed responsibility for care and custody of the ward, or to a ward's custodian under a Uniform Transfers to Minors Act, Uniform Gifts to Minors Act, or comparable law of any applicable jurisdiction;
    3. To maintain life, health, casualty, and liability insurance for the benefit of the ward;
    4. To manage the estate following the termination of the guardianship until its delivery to the ward or successors in interest;
    5. To execute and deliver all instruments and to take all other actions that will serve the best interests of the ward;
    6. To initiate a proceeding to seek a divorce or to make an augmented estate election under § 64.2-302 or 64.2-308.13 , as applicable; and
    7. To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the guardian deems advisable, including the power to borrow from the guardian, if the guardian is a bank, for any purpose; to mortgage or pledge such portion of the ward's personal estate, and real estate subject to subsection B, as may be required to secure such loan or loans; and, as maker or endorser, to renew existing loans.
  2. A guardian may exercise the powers set forth in subsection A without prior authorization, except that the court or the commissioner of accounts, if a guardian is appointed other than by the court, may impose requirements to be satisfied by the guardian prior to the conveyance of any interest in real estate, including (i) increasing the amount of the guardian's bond, (ii) securing an appraisal of the real estate or interest, (iii) giving notice to interested parties as the court or commissioner deems proper, and (iv) consulting with the commissioner of accounts.
    1. If the court or commissioner of accounts imposes any requirements under this subsection, the guardian shall make a report of his compliance with each requirement, which shall be filed with the commissioner of accounts. Upon receipt of the guardian's report, the commissioner of accounts shall file promptly a report with the court stating whether the requirements imposed have been met and whether the conveyance is otherwise consistent with the guardian's duties. The conveyance shall not be closed until a report by the commissioner of accounts is filed with the court and confirmed as provided in §§ 64.2-1212 , 64.2-1213 , and 64.2-1214 .
    2. If the commissioner of accounts does not impose any requirements under this subsection, he shall, upon request of the guardian of the minor, issue a notarized statement providing that "The Commissioner of Accounts has declined to impose any requirements upon the power of (name of guardian), Guardian of (name of minor), to convey the following real estate of the minor: (property identification)." The conveyance shall not be closed until the guardian has furnished such a statement to the proposed grantee.
  3. Any guardian may at any time irrevocably disclaim the right to exercise any of the powers conferred by this section by filing a written disclaimer with the clerk of the circuit court wherein his accounts may be settled. Such disclaimer shall relate back to the time when the guardian assumed the guardianship and shall be binding upon any successor guardian.

    (1999, c. 16, § 31-14.1; 2012, c. 614; 2016, cc. 187, 269.)

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "or 64.2-308.13 , as applicable;" in subdivision A 6.

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court did not have the authority to appoint maternal grandparents as guardians over their minor grandchild while the child's father was living and retained legal custody of the child. Moreover, an available and appropriate legal avenue existed for the grandparents in the Juvenile and Domestic Relations District Court in the form of a petition for joint custody with the father. In re Redacted,, 2020 Va. Cir. LEXIS 481 (Fairfax County Dec. 2, 2020).

§ 64.2-1806. Powers of guardian; transition rule.

The provisions of Chapter 17 (§ 64.2-1700 et seq.) and this chapter are applicable to all guardianships, whenever created, except that a guardian who qualifies prior to July 1, 1999, shall have the power to make conveyances of his ward's estate only in accordance with the laws in effect on June 30, 1999, unless the guardian in office on June 30, 1999, has requalified on or after July 1, 1999.

(1999, c. 16, § 31-18.1; 2012, c. 614.)

Chapter 19. Virginia Uniform Transfers to Minors Act.

Sec.

§ 64.2-1900. Definitions.

In this chapter, unless the context otherwise requires:

"Adult" means an individual who attained the age of 18 years.

"Benefit plan" means an employer's plan for the benefit of an employee or partner.

"Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others.

"Conservator" means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions.

"Court" means the circuit court having appropriate jurisdiction.

"Custodial property" means (i) any interest in property transferred to a custodian under this chapter and (ii) the income from and proceeds of that interest in property.

"Custodian" means a person so designated under § 64.2-1908 or a successor or substitute custodian designated under § 64.2-1917 .

"Financial institution" means a bank, trust company, savings institution, or credit union chartered and supervised under state or federal law.

"Legal representative" means an individual's personal representative or conservator.

"Member of the minor's family" means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.

"Minor" means an individual who has not attained the age of 18 years.

"Person" means an individual, corporation, organization, or other legal entity.

"Personal representative" means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.

"Qualified minor's trust" means any trust, including a trust created by a custodian, that meets the requirements of § 2503(c) of the Internal Revenue Code of 1986 and the regulations implementing that section.

"State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

"Transfer" means a transaction that creates custodial property under § 64.2-1908 .

"Transferor" means a person who makes a transfer under this chapter.

"Trust company" means a financial institution, corporation, or other legal entity authorized to exercise general trust powers.

(1988, c. 516, § 31-37; 2007, c. 307; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 35-5A-1 to 35-5A-24.

Alaska: Alaska Stat. §§ 13.46.010 to 13.46.999.

Arizona: A.R.S. §§ 14-7651 to 14-7671.

Arkansas: A.C.A. §§ 9-26-201 to 9-26-227.

California: California Prob. Code §§ 3900 to 3925.

Colorado: C.R.S. §§ 11-50-101 to 11-50-126.

Connecticut: Conn. Gen. Stat. § 45a-557 et seq.

Delaware: 12 Del. C. §§ 4501 to 4523.

District of Columbia: D.C. Code §§ 21-301 to 21-324 .

Florida: Fla. Stat. §§ 710.101 to 710.126.

Georgia: O.C.G.A. §§ 44-5-110 to 44-5-134.

Hawaii: H.R.S. §§ 553A-1 to 553A-24.

Idaho: Idaho Code §§ 68-801 to 68.825.

Illinois: 760 I.L.C.S. 20/1 to 20/24.

Indiana: Burns Ind. Code §§ 30-2-8.5-1 to 30-2-8.5-40.

Iowa: Iowa Code §§ 565B.1 to 565B.25.

Kansas: K.S.A. §§ 38-1701 to 38-1726.

Kentucky: K.R.S. §§ 385.012 to 385.242.

Louisiana: La. R.S. §§ 9:751 to 9:773.

Maine: 33 M.R.S. §§ 1651 to 1674.

Maryland: Md. Estates and Trusts Code Ann. §§ 13-301 to 13-324.

Massachusetts: Mass. Ann. Laws ch. 201A §§ 1 to 24.

Michigan: M.C.L.S. §§ 554.521 to 554.552.

Minnesota: Minn. Stat. §§ 527.21 to 527.44.

Mississippi: Miss. Code Ann. §§ 91-20-1 to 91-20-49.

Montana: Mont. Code Anno. §§ 72-26-501 to 72-26-803.

Nebraska: R.R.S. Neb. §§ 43-2701 to 43-2724.

Nevada: Nev. Rev. Stat. Ann. §§ 167.010 to 167.110.

New Hampshire: R.S.A. §§ 463-A:1 to 463-A:26.

New Jersey: N.J. Stat. §§ 46:38A-1 to 46:38A-57.

New Mexico: N.M. Stat. Ann. § 46-7-11 et seq.

New York: NY CLS EPTL §§ 7-6.1 to 7-6.26.

North Carolina: N.C. Gen. Stat. §§ 33A-1 to 33A-24.

North Dakota: N.D. Cent. Code §§ 47-24.1-01 to 47-24.1-22.

Ohio: O.R.C. Ann. §§ 5814.01 to 5814.09.

Oklahoma: 58 Okl. St. §§ 1201 to 1225.

Oregon: O.R.S. §§ 126.805 to 126.886.

Pennsylvania: 20 Pa.C.S. §§ 5301 to 5321.

Rhode Island: R.I. Gen. Laws §§ 18-7-1 to 18-7-26.

South Dakota S.D. Codified Laws §§ 55-10A-1 to 55-10A-26.

Tennessee: Tenn. Code Ann. §§ 35-7-101 to 35-7-126.

Texas: Tex. Prop. Code §§ 141.001 to 141.025.

Utah: Utah Code Ann. §§ 75-5A-101 to 75-5A-123.

Vermont: 14 V.S.A. § 3211 et seq.

Virgin Islands: 15 V.I.C. §§ 1251a to 1251x.

Washington: Rev. Code Wash. §§ 11.114.010 to 11.114.904.

West Virginia: W. Va. Code 36-7-1 to 36-7-24.

Wisconsin: Wis. Stat. §§ 54.854 to 54.898.

Wyoming: Wyo. Stat. §§ 34-13-114 to 34-13-137.

The 2007 amendments. - The 2007 amendment by c. 307 inserted the definition for "Qualified minor's trust."

Law review. - For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

Research References. - Virginia Forms (Matthew Bender). No. 15-106 Will Giving Entire Estate to Spouse with Trust for Children in the Event Spouse Predeceases Testator; No. 15-207 Bequest or Devise to Minor, et seq.; No. 15-315 Gift Under the Virginia Uniform Transfers to Minors Act, et seq.

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, § 25.

§ 64.2-1901. Scope and jurisdiction.

  1. This chapter applies to any transfer that refers to the Uniform Transfers to Minors Act or this chapter in the designation under subsection A of § 64.2-1908 by which the transfer is made if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of the Commonwealth or the custodial property is located in the Commonwealth. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian or the removal of custodial property from the Commonwealth.
  2. A person designated as custodian under this chapter is subject to personal jurisdiction in the Commonwealth with respect to any matter relating to the custodianship.
  3. A transfer that purports to be made and that is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in the Commonwealth if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.

    (1988, c. 516, § 31-38; 2012, c. 614.)

§ 64.2-1902. Nomination of custodian.

  1. A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: "as custodian for  ................ (name of minor) under the Virginia Uniform Transfers to Minors Act." The nomination may name one or more persons as substitute custodians to whom the property shall be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights that is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.
  2. A custodian nominated under this section shall be a person to whom a transfer of property of that kind may be made under subsection A of § 64.2-1908 .
  3. The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under § 64.2-1908 . Unless the nomination of custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to § 64.2-1908 . (1988, c. 516, § 31-39; 2012, c. 614.)

§ 64.2-1903. Transfer by gift or exercise of power of appointment.

A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to § 64.2-1908 .

(1988, c. 516, § 31-40; 2012, c. 614.)

§ 64.2-1904. Transfer authorized by will or trust.

A personal representative or trustee may make an irrevocable transfer pursuant to § 64.2-1908 to a custodian for the benefit of a minor as authorized in the governing will or trust. If the testator or settlor has nominated a custodian under § 64.2-1902 to receive the custodial property, the transfer shall be made to that person.

If the testator or settlor has not nominated a custodian under § 64.2-1902 or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection A of § 64.2-1908 .

(1988, c. 516, § 31-41; 2012, c. 614.)

§ 64.2-1905. Other transfer by fiduciary.

  1. Subject to subsection C, a personal representative or trustee may make an irrevocable transfer to an adult or trust company as custodian for the benefit of a minor pursuant to § 64.2-1908 in the absence of a will or under a will or trust that does not contain an authorization to do so.
  2. Subject to subsection C, a conservator may make an irrevocable transfer to an adult or trust company as custodian for the benefit of the minor pursuant to § 64.2-1908 .
  3. A transfer under either subsection A or B may be made only if (i) the personal representative, trustee, or conservator considers the transfer to be in the best interest of the minor, (ii) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument, and (iii) the transfer is authorized by the court if it exceeds $25,000 in value or is made by a conservator.

    (1988, c. 516, § 31-42; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection C, substituted "$25,000" for "$10,000."

§ 64.2-1906. Transfer by obligor.

  1. Subject to subsections B and C, a person not subject to § 64.2-1904 or who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to § 64.2-1908 .
  2. If a person having the right to do so under § 64.2-1902 has nominated a custodian under that section to receive the custodial property, the transfer shall be made to that person.
  3. If no custodian has been nominated under § 64.2-1902 , or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor's family or to a trust company unless the property exceeds $25,000 in value, in which event the transfer may be made if authorized by the court. (1988, c. 516, § 31-43; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection C, substituted "$25,000" for "$10,000."

§ 64.2-1907. Receipt for custodial property.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this chapter.

(1988, c. 516, § 31-44; 2012, c. 614.)

§ 64.2-1908. Manner of creating custodial property and effecting transfer; designation of initial custodian; control.

  1. Custodial property is created and a transfer is made whenever:
    1. An uncertificated security or a certificated security in registered form is either:
      1. Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act"; or
      2. Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection B.
    2. Money is paid or delivered, or a security held in the name of a broker, financial institution, or its nominee is transferred, to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act."
    3. The ownership of a life or endowment insurance policy or annuity contract is either:
      1. Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act"; or
      2. Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act."
    4. An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act."
    5. An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act."
    6. A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:
      1. Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act"; or
      2. Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: "as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act."
    7. An interest in any property not described in subdivisions 1 through 6 is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection B. Nothing in this subsection shall be deemed to prohibit the creation or transfer of custodial property from a personal representative, trustee, or conservator to himself as custodian pursuant to §§ 64.2-1904 , 64.2-1905 , and 64.2-1906 .
  2. An instrument in the following form satisfies the requirements of subdivisions A 1 b and A 7.
  3. A transferor shall place the custodian in control of the custodial property as soon as practicable.
  4. A transferor who transfers property to an individual under the age of 21 years pursuant to § 64.2-1903 or 64.2-1904 may expressly provide that the custodian shall deliver, convey, or pay the property to the individual on the individual's attaining the age of 21 by inclusion of the parenthetical "(21)" after the words "Virginia Uniform Transfers to Minors Act" or substantially similar language. In such case, the word "minor" as used in this chapter shall mean an individual who has not attained the age of 21 years.
  5. A transferor who transfers property on or after July 1, 2019, to an individual under the age of 21 years pursuant to § 64.2-1903 or 64.2-1904 may expressly provide that the custodian shall deliver, convey, or pay the property to the individual on the individual's attaining the age of 25 by inclusion of the parenthetical "(25)" after the words "Virginia Uniform Transfers to Minors Act" or substantially similar language. In such case, the word "minor" as used in this chapter shall mean an individual who has not attained the age of 25 years. (1988, c. 516, § 31-45; 1989, c. 548; 1990, c. 831; 2012, c. 614; 2019, c. 527.)

TRANSFER UNDER THE VIRGINIA UNIFORM TRANSFERS TO MINORS ACT

I, ________________________ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to __________________ (name of custodian), as custodian for __________________ (name of minor) under the Virginia Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: __________________ ________________________ (Signature) __________________ (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Virginia Uniform Transfers to Minors Act. Dated: __________________ ________________________ (Signature of Custodian)

The 2019 amendments. - The 2019 amendment by c. 527 added subsection E.

Law review. - For article, "Wills, Trusts, and Estates," see 54 U. Rich. L. Rev. 183 (2019).

CIRCUIT COURT OPINIONS

Construction. - With regard to the funds that are being held pursuant to the Virginia Uniform Transfers to Minors Acts, the testator appointed a successor fiduciary to administer the funds in accordance with the provisions of subsection B of § 31-54. They would be available for distribution to the minor when he attains the age of 18, unless the original transfer of property was made as provided in subsection D of § 31-45. In that event, § 31-56 directs that the distribution to the minor be made when the minor attains the age of 21 years. Oliver v. Oliver,, 2006 Va. Cir. LEXIS 180 (Orange County Sept. 20, 2006)(decided under prior law).

§ 64.2-1909. Single and joint custodians.

A transfer may be made only for one minor, and up to two persons may be joint custodians. All custodial property held under this chapter by the same custodian or joint custodians for the benefit of the same minor constitutes a single custodianship. Unless otherwise specified in any document creating the custodial property, each joint custodian shall have full power and authority to act alone with respect to the custodial property. If either joint custodian resigns, dies, becomes incapacitated, or is removed, then the remaining joint custodian shall become sole custodian.

(1988, c. 516, § 31-46; 2006, c. 657; 2012, c. 614.)

§ 64.2-1910. Validity and effect of transfer.

  1. The validity of a transfer made in a manner prescribed in this chapter is not affected by:
    1. Failure of the transferor to comply with subsection C of § 64.2-1908 concerning possession and control;
    2. Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under subsection A of § 64.2-1908 ; or
    3. Death or incapacity of a person nominated under § 64.2-1902 or designated under § 64.2-1908 as custodian or the disclaimer of the office by that person.
  2. A transfer made pursuant to § 64.2-1908 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this chapter and neither the minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this chapter.
  3. By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this chapter.

    (1988, c. 516, § 31-47; 2012, c. 614.)

§ 64.2-1911. Care of custodial property; duties of custodian.

  1. A custodian shall take control of custodial property, register or record title to custodial property, if appropriate, and collect, hold, manage, invest, and reinvest custodial property.
  2. In dealing with custodial property, a custodian shall observe the standard of care set forth in the Uniform Prudent Investor Act (§ 64.2-780 et seq.), except to the extent provided by § 64.2-1502 . However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor.
  3. A custodian may invest in or pay premiums on life insurance or endowment policies on (i) the life of the minor only if the minor or the minor's estate is the sole beneficiary or (ii) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian is the beneficiary during the period of custodianship.
  4. A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: "as a custodian for  ..........   (name of minor) under the Virginia Uniform Transfers to Minors Act."
  5. A custodian shall keep records of all transactions with respect to custodial property, including the information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years.

    (1988, c. 516, § 31-48; 2007, c. 517; 2012, c. 614.)

Law review. - For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

CASE NOTES

Liability under former subsection B of § 31-48. - Custodians of three children's account under the Virginia Uniform Transfers to Minors Act, § 31-37 et seq., a father and an uncle, were liable for losses to the children's accounts where the uncle abdicated his custodial duties and the father violated the custodial standard of care provided in former subsection B of § 31-48, the Prudent Person Rule by speculating in airline stock when he knew that the airline was on the verge of bankruptcy. Carlson v. Wells, 281 Va. 173 , 705 S.E.2d 101 (2011)(decided under prior law).

§ 64.2-1912. Powers of custodian.

A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, which shall include but not be limited to those powers set forth in § 64.2-105 as of the date the custodian acts, but a custodian may exercise such rights, powers, and authority in that capacity only. However, this section does not relieve a custodian from liability for breach of a duty imposed under § 64.2-1911 .

(1988, c. 516, § 31-49; 2012, c. 614.)

§ 64.2-1913. Use of custodial property.

  1. A custodian may deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (i) the duty or ability of the custodian personally or of any other person to support the minor or (ii) any other income or property of the minor which may be applicable or available for that purpose.
  2. At any time a custodian may, without court order, transfer all or part of the custodial property to a qualified minor's trust. Such a transfer terminates the custodianship to the extent of the custodial property transferred.
  3. On petition of an interested person or the minor if the minor has attained the age of 14 years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
  4. A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.

    (1988, c. 516, § 31-50; 2007, c. 307; 2012, c. 614.)

§ 64.2-1914. Custodian's expenses, compensation, and bond.

  1. A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.
  2. A custodian, other than one who is a transferor under § 64.2-1903 , has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
  3. Except upon petition as provided in subsection F of § 64.2-1917 , a custodian need not give a bond. (1988, c. 516, § 31-51; 2012, c. 614.)

§ 64.2-1915. Exemption of third person from liability.

A third person may act in good faith and without court order on the instruction of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining (i) the validity of the purported custodian's designation, (ii) the propriety of, or the authority under this chapter for, any act of the purported custodian, (iii) the validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian, or (iv) the propriety of the application of any property of the minor delivered to the purported custodian.

(1988, c. 516, § 31-52; 2012, c. 614.)

CASE NOTES

Applicability. - When a mother who had been appointed guardian of her minor daughter's estate used estate funds to buy land, which she quitclaimed to herself and tried to sell after using it to obtain personal loans, her proposed buyers and the property's mortgagees were not protected by § 31-52 because, since the mother's conveyance to herself was not a "transfer" under the Uniform Transfers to Minors Act, § 31-37 et seq., the buyers and mortgagees were only protected to the extent they could show they dealt with the mother as custodian of the daughter's estate, and they could not show this, as they only dealt with her in her individual capacity. Richardson v. AMRESCO Residential Mortg. Corp., 267 Va. 43 , 592 S.E.2d 65 (2004)(decided under prior law).

§ 64.2-1916. Liability to third persons.

A claim based on (i) a contract entered into by a custodian acting in a custodial capacity, (ii) an obligation arising from the ownership or control of custodial property, or (iii) a tort committed during the custodianship may be asserted against the custodial property by proceeding against the custodian in a custodial capacity, whether or not the custodian or the minor is personally liable therefor.

A custodian is not personally liable on a contract properly entered into in the custodial capacity, unless the custodian fails to reveal that capacity and to identify the custodianship in the contract, or for an obligation arising from control of custodial property or for a tort committed during the custodianship, unless the custodian is personally at fault.

A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.

(1988, c. 516, § 31-53; 2012, c. 614.)

§ 64.2-1917. Renunciation, resignation, death, or removal of custodian; designation of successor custodian.

  1. A person nominated under § 64.2-1902 or designated under § 64.2-1908 as custodian may decline to serve by delivering written notice to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under § 64.2-1902 , the person who made the nomination may nominate a substitute custodian under § 64.2-1902. Otherwise, the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer. In either case the nomination or designation shall be made from among the persons eligible to serve as custodian for that kind of property under subsection A of § 64.2-1908 . The custodian so designated has the rights of a successor custodian.
  2. A custodian at any time may designate a trust company or an adult other than a transferor under § 64.2-1903 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, or becomes incapacitated.
  3. A custodian may resign at any time by (i) delivering written notice to the minor, if the minor has attained the age of 14 years, and to the successor custodian and (ii) delivering the custodial property to the successor custodian.
  4. If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of 14 years, the minor may designate as successor custodian, in the manner prescribed in subsection B, an adult member of the minor's family, a conservator of the minor, or a trust company. If the minor has not attained the age of 14 years or fails to act within 60 days after the ineligibility, death, or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.
  5. A custodian who declines to serve under subsection A or resigns under subsection C or the legal representative of a deceased or incapacitated custodian shall, as soon as practicable, put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
  6. A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor, if the minor has attained the age of 14 years, may petition the court to (i) remove the custodian for cause and to designate a successor custodian other than a transferor under § 64.2-1903 or (ii) require the custodian to give appropriate bond. (1988, c. 516, § 31-54; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Construction. - With regard to the funds that are being held pursuant to the Virginia Uniform Transfers to Minors Acts, the testator appointed a successor fiduciary to administer the funds in accordance with the provisions of subsection B of § 31-54. They would be available for distribution to the minor when he attains the age of 18, unless the original transfer of property was made as provided in subsection D of § 31-45. In that event, § 31-56 directs that the distribution to the minor be made when the minor attains the age of 21 years. Oliver v. Oliver,, 2006 Va. Cir. LEXIS 180 (Orange County Sept. 20, 2006)(decided under prior law).

§ 64.2-1918. Accounting by and determination of liability of custodian.

  1. A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor, if the minor has attained the age of 14 years, may petition the court (i) for an accounting by the custodian or the custodian's legal representative or (ii) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under § 64.2-1916 to which the minor or the minor's legal representative was a party.
  2. A successor custodian may petition the court for an accounting by the predecessor custodian.
  3. The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.
  4. If a custodian is removed under subsection F of § 64.2-1917 , the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property. (1988, c. 516, § 31-55; 2012, c. 614.)

§ 64.2-1919. Termination of custodianship.

  1. Except as provided in subsection B, the custodian shall transfer the custodial property to the minor or to the minor's estate in an appropriate manner upon the earlier of:
    1. The minor's attainment of 18 years of age or if the transfer was made as provided in subsection D or E of § 64.2-1908 , the minor's attainment of 21 or 25 years of age, as applicable; or
    2. The minor's death.
  2. If the custodial property is transferred by irrevocable gift or the exercise of an inter vivos general power of appointment in the manner provided in subsection E of § 64.2-1908 , for delivery, conveyance, or payment to the minor upon the minor's attaining the age of 25 years, the custodian shall nevertheless transfer the custodial property to the minor upon the minor's attaining the age of 21 years if the minor delivers a written request therefor to the custodian. A request under this subsection shall be valid only if it is delivered to the custodian during the period beginning 30 days before the date on which the minor attains the age of 21 years and ending 30 days after the later of (i) the date on which the minor attains the age of 21 years or (ii) the date on which the custodian delivers written notice to the minor of the minor's right to terminate the custodianship pursuant to this subsection. (1988, c. 516, § 31-56; 2012, c. 614; 2019, c. 527.)

The 2019 amendments. - The 2019 amendment by c. 527 designated the existing provisions as subsection A and added subsection B; in subsection A, inserted "Except as provided in subsection B" at the beginning; in subdivision A 1, inserted "or E" following "subsection D," and substituted "21 or 25 years of age, as applicable" for "21 years of age."

CIRCUIT COURT OPINIONS

Construction. - With regard to the funds that are being held pursuant to the Virginia Uniform Transfers to Minors Acts, the testator appointed a successor fiduciary to administer the funds in accordance with the provisions of subsection B of § 31-54. They would be available for distribution to the minor when he attains the age of 18, unless the original transfer of property was made as provided in subsection D of § 31-45. In that event, § 31-56 directs that the distribution to the minor be made when the minor attains the age of 21 years. Oliver v. Oliver,, 2006 Va. Cir. LEXIS 180 (Orange County Sept. 20, 2006)(decided under prior law).

§ 64.2-1920. Applicability.

This chapter applies to a transfer within the scope of § 64.2-1901 made after July 1, 1988, if:

  1. The transfer purports to have been made under the provisions of the Virginia Uniform Gifts to Minors Act (former §§ 31-26 through 31-36); or
  2. The instrument by which the transfer purports to have been made uses in substance the designation "as custodian under the Uniform Gifts to Minors Act" or "as custodian under the Uniform Transfers to Minors Act" of any other state, and the application of this chapter is necessary to validate the transfer.

    (1988, c. 516, § 31-57; 2012, c. 614.)

§ 64.2-1921. Effect on existing custodianships.

  1. Any transfer of custodial property as now defined in this chapter made before July 1, 1988, is validated notwithstanding that there was no specific authority in the Virginia Uniform Gifts to Minors Act (former §§ 31-26 through 31-36) for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
  2. This chapter applies to all transfers made before July 1, 1988, in a manner and form prescribed in the Virginia Uniform Gifts to Minors Act (former §§ 31-26 through 31-36) except insofar as the application impairs constitutionally vested rights.

    (1988, c. 516, § 31-58; 2012, c. 614.)

§ 64.2-1922. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

(1988, c. 516, § 31-59; 2012, c. 614.)

PART D. Guardianship of Incapacitated Persons.

Chapter 20. Guardianship and Conservatorship.

Appointment.

Powers, Duties, and Liabilities.

Article 1. Appointment.

§ 64.2-2000. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Advance directive" shall have the same meaning as provided in § 54.1-2982 .

"Annual report" means the report required to be filed by a guardian pursuant to § 64.2-2020 .

"Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person and, where the context plainly indicates, includes a "limited conservator" or a "temporary conservator." "Conservator" includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public conservator pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide conservatorial services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Department for Aging and Rehabilitative Services as a public conservator, it may also serve as a conservator for other individuals.

"Estate" includes both real and personal property.

"Facility" means a state or licensed hospital, training center, psychiatric hospital, or other type of residential or outpatient mental health or mental retardation facility. When modified by the word "state," "facility" means a state hospital or training center operated by the Department of Behavioral Health and Developmental Services, including the buildings and land associated with it.

"Guardian" means a person appointed by the court who has the powers and duties set out in § 64.2-2019 , or § 63.2-1609 if applicable, and who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The term includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public guardian pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide guardian services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Department for Aging and Rehabilitative Services as a public guardian, it may also serve as a guardian for other individuals.

"Guardian ad litem" means an attorney appointed by the court to represent the interests of the respondent and whose duties include evaluation of the petition for guardianship or conservatorship and filing a report with the court pursuant to § 64.2-2003 .

"Incapacitated person" means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. A finding that a person is incapacitated shall be construed as a finding that the person is "mentally incompetent" as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.

"Individualized education plan" or "IEP" means a plan or program developed annually to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives specialized instruction and related services as provided by 20 U.S.C. § 1414.

"Individual receiving services" or "individual" means a current direct recipient of public or private mental health, developmental, or substance abuse treatment, rehabilitation, or habilitation services and includes the terms "consumer," "patient," "resident," "recipient," or "client."

"Limited conservator" means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of an incapacitated person as specified in the order of appointment.

"Limited guardian" means a person appointed by the court who has only those responsibilities for the personal affairs of an incapacitated person as specified in the order of appointment.

"Mental illness" means a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.

"Petition" means the document filed with a circuit court to initiate a proceeding to appoint a guardian or conservator.

"Power of attorney" has the same meaning ascribed to it in § 64.2-1600 .

"Property" includes both real and personal property.

"Respondent" means an allegedly incapacitated person for whom a petition for guardianship or conservatorship has been filed.

"Supported decision-making agreement" has the same meaning ascribed to it in § 37.2-314.3 .

"Temporary conservator" means a person appointed by a court for a limited duration of time as specified in the order of appointment.

"Temporary guardian" means a person appointed by a court for a limited duration of time as specified in the order of appointment.

"Transition plan" means the plan that is required as part of the IEP used to help students and families prepare for the future after the student reaches the age of majority.

(1997, c. 921, § 37.1-134.6; 1998, cc. 582, 787; 2004, c. 858; 2005, c. 716, § 37.2-1000 ; 2006, c. 724; 2012, cc. 614, 803, 835; 2020, c. 855; 2021, Sp. Sess. I, c. 232.)

Cross references. - As to the Public Guardian and Conservator Advisory Board, see §§ 51.5-149.1 , 51.5-149.2 .

As to security freezes for protected consumers, see § 59.1-444.3 .

Editor's note. - Acts 1997, c. 921, which enacted former § 37.2-1000 , in cl. 2 provides: "That this act shall become effective January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship or conservatorship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

Acts 2012, cc. 803 and 835, cl. 59, amended former § 37.2-1000 , from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 803 and 835, cl. 59, have been given effect in this section by substituting "Department for Aging and Rehabilitative Services" for "Department for the Aging" four times and substituting "Article 6 ( § 51.5-149 et seq.) of Chapter 14 of Title 51.5" for "Article 2 ( § 2.2-711 et seq.) of Chapter 7 of Title 2.2" twice.

At the direction of the Virginia Code Commission the definition for "Individual receiving services" was substituted for the definition of "consumer" to conform to amendments by Acts 2012, cc. 476 and 507.

Acts 2020, c. 855, cl. 2 provides: "That the Department of Behavioral Health and Developmental Services (the Department) shall convene a group of stakeholders to study the use of supported decision-making agreements in the Commonwealth, including making recommendations as to the use of supported decision-making agreements as a less restrictive alternative to the appointment of a guardian or conservator for an incapacitated person. The Department shall report the findings and recommendations of the stakeholder group's study to the Chairmen of the Senate Committee on the Judiciary and the House Committee on Health, Welfare, and Institutions no later than November 1, 2020."

The 2020 amendments. - The 2020 amendment by c. 855, in the definition of "Advance directive," substituted " § 54.1-2982 " for "the Health Care Decisions Act ( § 54.1-2981 et seq.)"; inserted the definition of "Annual report," "Guardian ad litem," "Individual receiving services," "Petition," "Power of attorney," "Temporary conservator," "Temporary guardian," and "Transition plan"; in the definition of "Conservator," substituted " 'Conservator' " for "The term" in the second sentence at the beginning; in the definition for "Guardian," inserted "has the powers and duties set out in § 64.2-2019 , or § 63.2-1609 if applicable, and who" in the first sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 232, effective July 1, 2021, added the definition of "Supported decision-making agreement."

Research References. - Virginia Forms (Matthew Bender). No. 1-106 Style and Commencement of Action by Conservator of Incapacitated Person; No. 6-700 Information Pamphlet: Guardianship and Conservatorship Proceedings Regarding Incapacitated Adults, et seq.; No. 6-801 Complaint by Conservator to Sell Land of Person Under Disability, et seq.; No. 15-408 Memorandum of Facts - Incapacitated Adult.

CASE NOTES

Presumption of incapacity. - Mere fact that one was under a conservatorship was not an adjudication of insanity and did not create a presumption of incapacity, and none of the conservator statutes at issue, former Fla. Stat. § 744.331, Tenn. Code Ann. § 34-1-101(7), or Va. Code Ann. § 37.2-1000 , required a specific factual finding that the deceased was incompetent to such an extent that he could not execute a will. Accordingly, the circuit court correctly ruled that the deceased's adjudications of incompetence due to encephalopathy and the attendant appointments of conservators did not create a presumption of incapacity. Parish v. Parish, 281 Va. 191 , 704 S.E.2d 99 (2011)(decided under prior law).

Applied in Lopez-Rosario v. Habib, 291 Va. 293 , 785 S.E.2d 214 (2016).

CIRCUIT COURT OPINIONS

Evidence of capacity. - Revocation of a wife as the designated beneficiary of a life insurance policy was upheld because the evidence a daughter submitted about her father's capacity and wish to change his beneficiary was not controverted; that the father preferred to confer a benefit on his daughter, who took him in and cared for him, rather than on a wife of just a few years, who was removed as guardian for malfeasance and who had no contact with him for years, was supported by a preponderance of the evidence. Minn. Life Ins. Co. v. Brown, 97 Va. Cir. 68, 2012 Va. Cir. LEXIS 204 (Norfolk Nov. 21, 2012).

If an incapacitated person may have sufficient capacity to make a will, it follows that he or she may likewise have sufficient capacity to direct a change in his or her life insurance beneficiary designation; both are testamentary decisions that take effect at death. Minn. Life Ins. Co. v. Brown, 97 Va. Cir. 68, 2012 Va. Cir. LEXIS 204 (Norfolk Nov. 21, 2012).

Based on a plain reading of subdivision A 2 b of § 8.01-229 and § 64.2-2000 , the § 64.2-2000 definition, which refers to an incapacitation finding by a court, does not preclude one from being incapacitated for purposes of § 8.01-229 simply because one has not yet been adjudicated incapacitated; adjudication is a predicate for legal recognition of the incapacity, including for appointment of a guardian or conservator, and the focus of subdivision A 2 b of § 8.01-229 is on when one becomes incapacitated. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

Guardian's complaint, which was filed less than one year after the guardian was appointed, was timely filed because the guardian proved the patient was incapacitated prior to the incident and never regained capacity; a doctor's testimony was sufficient to rebut the presumption of capacity and prove that the patient was incapacitated while the doctor was treating her, and the patient was not going to, and did not, regain capacity. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

In light of the decedent's performing chores and running errands without supervision, any inference that he was an incapacitated person under § 64.2-2000 was contrary to reason. Belcher v. Johnson, 95 Va. Cir. 171, 2017 Va. Cir. LEXIS 19 (Martinsville Feb. 10, 2017).

§ 64.2-2001. Filing of petition; jurisdiction; instructions to be provided.

  1. A petition for the appointment of a guardian or conservator shall be filed with the circuit court of the county or city in which the respondent is a resident or is located or in which the respondent resided immediately prior to becoming a patient, voluntarily or involuntarily, in a hospital, including a hospital licensed by the Department of Health pursuant to § 32.1-123 , or a resident in a nursing facility or nursing home, convalescent home, assisted living facility as defined in § 63.2-100 , or any other similar institution or, if the petition is for the appointment of a conservator for a nonresident with property in the state, in the city or county in which the respondent's property is located.
  2. Article 2 (§ 64.2-2105 et seq.) of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act provides the exclusive jurisdictional basis for a court of the Commonwealth to appoint a guardian or conservator for an adult.
  3. Where the petition is brought by a parent or guardian of a respondent who is under the age of 18, or by any other person and there is no living parent or guardian of a respondent who is under the age of 18, the petition may be filed no earlier than six months prior to the respondent's eighteenth birthday. Where such a petition is brought, a court may enter an order appointing the parent or guardian of the respondent, or other person if there is no living parent or guardian, as guardian or conservator prior to the respondent's eighteenth birthday. Such order shall specify whether it takes effect immediately upon entry or on the respondent's eighteenth birthday. Where the petition is brought by any other person and there is a living parent or guardian of a respondent who is under the age of 18, the petition may be filed no earlier than the respondent's eighteenth birthday.
  4. Instructions regarding the duties, powers, and liabilities of guardians and conservators shall be provided to each clerk of court by the Office of the Executive Secretary of the Supreme Court, and the clerk shall provide such information to each guardian and conservator upon notice of appointment.
  5. The circuit court in which the proceeding is first commenced may order a transfer of venue if it would be in the best interest of the respondent.

    (1997, c. 921, § 37.1-134.7; 2001, c. 274; 2002, c. 736; 2005, c. 716, § 37.2-1001; 2006, c. 552; 2011, c. 518; 2012, c. 614; 2013, c. 523; 2016, c. 31.)

The 2013 amendments. - The 2013 amendment by c. 523, in subsection C, inserted "or by any other person and there is no living parent or guardian of a respondent who is under the age of 18" in the first sentence and "and there is a living parent or guardian of a respondent who is under the age of 18" in the second sentence.

The 2016 amendments. - The 2016 amendment by c. 31 added the second and third sentences in subsection B.

§ 64.2-2002. Who may file petition; contents.

  1. Any person may file a petition for the appointment of a guardian, a conservator, or both.
  2. A petition for the appointment of a guardian, a conservator, or both, shall state the petitioner's name, place of residence, post office address, and relationship, if any, to the respondent and, to the extent known as of the date of filing, shall include the following:
    1. The respondent's name, date of birth, place of residence or location, post office address, and the sealed filing of the social security number;
    2. The basis for the court's jurisdiction under the provisions of Article 2 (§ 64.2-2105 et seq.) of Chapter 21;
    3. The names and post office addresses of the respondent's spouse, adult children, parents, and adult siblings or, if no such relatives are known to the petitioner, at least three other known relatives of the respondent, including stepchildren. If a total of three such persons cannot be identified and located, the petitioner shall certify that fact in the petition, and the court shall set forth such finding in the final order;
    4. The name, place of residence or location, and post office address of the individual or facility, if any, that is responsible for or has assumed responsibility for the respondent's care or custody;
    5. The name, place of residence or location, and post office address of any agent designated under a durable power of attorney or an advance directive of which the respondent is the principal, and any guardian, committee, or conservator currently acting, whether in this state or elsewhere, and the petitioner shall attach a copy of any such durable power of attorney, advance directive, or order appointing the guardian, committee, or conservator, if available;
    6. The type of guardianship or conservatorship requested and a brief description of the nature and extent of the respondent's alleged incapacity;
    7. When the petition requests appointment of a guardian, a brief description of the services currently being provided for the respondent's health, care, safety, or rehabilitation and, where appropriate, a recommendation as to living arrangements and treatment plan;
    8. If the appointment of a limited guardian is requested, the specific areas of protection and assistance to be included in the order of appointment and, if the appointment of a limited conservator is requested, the specific areas of management and assistance to be included in the order of appointment;
    9. The name and post office address of any proposed guardian or conservator or any guardian or conservator nominated by the respondent and that person's relationship to the respondent;
    10. The native language of the respondent and any necessary alternative mode of communication;
    11. A statement of the financial resources of the respondent that shall, to the extent known, list the approximate value of the respondent's property and the respondent's anticipated annual gross income, other receipts, and debts;
    12. A statement of whether the petitioner believes that the respondent's attendance at the hearing would be detrimental to the respondent's health, care, or safety; and
    13. A request for appointment of a guardian ad litem. (1997, c. 921, § 37.1-134.8; 2005, c. 716, § 37.2-1002; 2006, c. 471; 2012, c. 614; 2013, c. 523.)

The 2013 amendments. - The 2013 amendment by c. 523 added subdivision B 2 and redesignated accordingly; in subdivision B 5, substituted "and any guardian" for "or any guardian," and inserted "or order appointing the guardian, committee, or conservator."

§ 64.2-2003. Appointment of guardian ad litem.

  1. On the filing of every petition for guardianship or conservatorship, the court shall appoint a guardian ad litem to represent the interests of the respondent. The guardian ad litem shall be paid a fee that is fixed by the court to be paid by the petitioner or taxed as costs, as the court directs.
  2. Duties of the guardian ad litem include (i) personally visiting the respondent; (ii) advising the respondent of rights pursuant to §§ 64.2-2006 and 64.2-2007 and certifying to the court that the respondent has been so advised; (iii) recommending that legal counsel be appointed for the respondent, pursuant to § 64.2-2006 , if the guardian ad litem believes that counsel for the respondent is necessary; (iv) investigating the petition and evidence, requesting additional evaluation if necessary, considering whether a less restrictive alternative to guardianship or conservatorship is available, including the use of an advance directive, supported decision-making agreement, or durable power of attorney, and filing a report pursuant to subsection C; and (v) personally appearing at all court proceedings and conferences. If the respondent is between 17 and a half and 21 years of age and has an Individualized Education Plan (IEP) and transition plan, the guardian ad litem shall review such IEP and transition plan and include the results of his review in the report required by clause (iv).
  3. In the report required by clause (iv) of subsection B, the guardian ad litem shall address the following major areas of concern: (i) whether the court has jurisdiction; (ii) whether a guardian or conservator is needed based on evaluations and reviews conducted pursuant to subsection B; (iii) the extent of the duties and powers of the guardian or conservator; (iv) the propriety and suitability of the person selected as guardian or conservator after consideration of the person's geographic location, familial or other relationship with the respondent, ability to carry out the powers and duties of the office, commitment to promoting the respondent's welfare, any potential conflicts of interests, wishes of the respondent, and recommendations of relatives; (v) a recommendation as to the amount of surety on the conservator's bond, if any; and (vi) consideration of proper residential placement of the respondent.
  4. A health care provider and local school division shall disclose or make available to the guardian ad litem, upon request, any information, records, and reports concerning the respondent that the guardian ad litem determines necessary to perform his duties under this section.

    (1997, c. 921, § 37.1-134.9; 2004, cc. 66, 1014; 2005, c. 716, § 37.2-1003; 2012, c. 614; 2020, cc. 581, 855; 2021, Sp. Sess. I, c. 232.)

Editor's note. - Acts 2020, c. 855, cl. 2 provides: "That the Department of Behavioral Health and Developmental Services (the Department) shall convene a group of stakeholders to study the use of supported decision-making agreements in the Commonwealth, including making recommendations as to the use of supported decision-making agreements as a less restrictive alternative to the appointment of a guardian or conservator for an incapacitated person. The Department shall report the findings and recommendations of the stakeholder group's study to the Chairmen of the Senate Committee on the Judiciary and the House Committee on Health, Welfare, and Institutions no later than November 1, 2020."

The 2020 amendments. - The 2020 amendment by c. 581, added the last sentence in subsection A; and in subsection D, inserted "and local school division."

The 2020 amendment by c. 855, in subsection B, inserted "considering whether a less restrictive alternative to guardianship or conservatorship is available, including the use of an advance directive or durable power of attorney" in the first sentence, clause (iv) and added the last sentence; in subsection C, inserted "based on evaluations and reviews conducted pursuant to subsection B" in clause (ii); and in subsection D, inserted "and local school division."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 232, effective July 1, 2021, inserted "supported decision-making agreement" in clause (iv) of subsection B.

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Former § 37.1-132 was designed to safeguard the property of incompetent persons from dissipation by their own improvidence and to preserve it for their own support and maintenance and, incidentally, for the benefit of the heirs or legatees and devisees. Gilmer v. Brown, 186 Va. 630 , 44 S.E.2d 16 (1947), construing former § 37-140.

Appointment as evidence of mental incapacity. - The appointment of a guardian or committee under this section (referring to former § 37-140) should not be regarded as prima facie evidence of mental incapacity, but the order of such appointment should be admitted as pertinent evidence to be given such weight as the jury may determine. Gilmer v. Brown, 186 Va. 630 , 44 S.E.2d 16 (1947); Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151 (1950).

Incurring of debts in sale of ward's real estate. - Upon the exhaustion of a ward's liquid assets and personal estate, the ward's committee would be justified in selling the ward's real estate. As this would require a court order, the committee may, of necessity, be required to incur debts and obligations on behalf of its ward. Carter v. Cavalier Cent. Bank & Trust Co., 223 Va. 571 , 292 S.E.2d 305 (1982).

Bankruptcy petition. - Physically incapacitated debtor could not file a Chapter 7 bankruptcy petition through his wife by virtue of her power of attorney, but he could file by means of a court-appointed guardian having specific authorization to file bankruptcy on his behalf. In re Smith, 115 Bankr. 84 (Bankr. E.D. Va. 1990).

Jurisdiction. - Former § 37.1-132 conferred jurisdiction on the circuit court where the allegedly impaired person is located or in which such person is a resident. Mazur v. Woodson, 932 F. Supp. 144 (E.D. Va. 1996).

Mere presence in a state is sufficient to confer jurisdiction on the state's courts for matters relating to the oversight of the mentally ill or incapacitated. Mazur v. Woodson, 932 F. Supp. 144 (E.D. Va. 1996).

When trial court's findings affirmed on appeal. - It is a question of fact as to whether an incompetent is capable of managing his property, and a finding by the trial court that a person is or is not so capable, if supported by the evidence, will be affirmed by the Supreme Court. Schmidt v. Goddin, 224 Va. 474 , 297 S.E.2d 701 (1982).

CIRCUIT COURT OPINIONS

Fees. - Respondents argued that the court had discretion to apportion guardian ad litem fees and should do so as petitioner nonsuited her claims, but the nonsuit statute no longer provided a penalty for vexing an opponent; a guardian ad litem is not an expert witness, but rather an attorney appointed to represent the interests of the respondents, and the nonsuit statute did not provide any support for the relief respondents requested. Culp v. Bryant, 94 Va. Cir. 451, 2016 Va. Cir. LEXIS 178 (Chesapeake Nov. 4, 2016).

§ 64.2-2004. Notice of hearing; jurisdictional.

  1. Upon the filing of the petition, the court shall promptly set a date, time, and location for a hearing. The respondent shall be given reasonable notice of the hearing. The respondent may not waive notice, and a failure to properly notify the respondent shall be jurisdictional.
  2. A respondent, whether or not he resides in the Commonwealth, shall be personally served with the notice of the hearing, a copy of the petition, and a copy of the order appointing a guardian ad litem pursuant to § 64.2-2003 . A certification, in the guardian ad litem's report required by subsection B of § 64.2-2003 , that the guardian ad litem personally served the respondent with the notice, a copy of the petition, and a copy of the order appointing a guardian ad litem shall constitute valid personal service for purposes of this section.
  3. A copy of the notice, together with a copy of the petition, shall be mailed by first-class mail by the petitioner at least seven days before the hearing to all adult individuals and to all entities whose names and post office addresses appear in the petition. The court, for good cause shown, may waive the advance notice required by this subsection. If the advance notice is waived, the petitioner shall promptly mail by first-class mail a copy of the petition and any order entered to those individuals and entities.
  4. The notice to the respondent shall include a brief statement in at least 14-point type of the purpose of the proceedings and shall inform the respondent of the right to be represented by counsel pursuant to § 64.2-2006 and to a hearing pursuant to § 64.2-2007 . Additionally, the notice shall include the following statement in conspicuous, bold print. WARNING AT THE HEARING YOU MAY LOSE MANY OF YOUR RIGHTS. A GUARDIAN MAY BE APPOINTED TO MAKE PERSONAL DECISIONS FOR YOU. A CONSERVATOR MAY BE APPOINTED TO MAKE DECISIONS CONCERNING YOUR PROPERTY AND FINANCES. THE APPOINTMENT MAY AFFECT CONTROL OF HOW YOU SPEND YOUR MONEY, HOW YOUR PROPERTY IS MANAGED AND CONTROLLED, WHO MAKES YOUR MEDICAL DECISIONS, WHERE YOU LIVE, WHETHER YOU ARE ALLOWED TO VOTE, AND OTHER IMPORTANT RIGHTS.
  5. The petitioner shall file with the clerk of the circuit court a statement of compliance with subsections B, C, and D.

    (1997, c. 921, § 37.1-134.10; 2001, c. 30; 2005, c. 716, § 37.2-1004; 2012, c. 614.)

§ 64.2-2005. Evaluation report.

  1. A report evaluating the condition of the respondent shall be filed, under seal, with the court and provided to the guardian ad litem, the respondent, and all adult individuals and all entities to whom notice is required under subsection C of § 64.2-2004 within a reasonable time prior to the hearing on the petition. The report shall be prepared by one or more licensed physicians or psychologists or licensed professionals skilled in the assessment and treatment of the physical or mental conditions of the respondent as alleged in the petition. If a report is not available, the court may proceed to hold the hearing without the report for good cause shown, absent any objection by the guardian ad litem, or may order a report and delay the hearing until the report is prepared, filed, and provided.
  2. The report shall evaluate the condition of the respondent and shall contain, to the best information and belief of its signatory:
    1. A description of the nature, type, and extent of the respondent's incapacity, including the respondent's specific functional impairments;
    2. A diagnosis or assessment of the respondent's mental and physical condition, including a statement as to whether the individual is on any medications that may affect his actions or demeanor, and, where appropriate and consistent with the scope of the evaluator's license, an evaluation of the respondent's ability to learn self-care skills, adaptive behavior, and social skills and a prognosis for improvement;
    3. The date or dates of the examinations, evaluations, and assessments upon which the report is based; and
    4. The signature of the person conducting the evaluation and the nature of the professional license held by that person.
  3. In the absence of bad faith or malicious intent, a person performing the evaluation shall be immune from civil liability for any breach of patient confidentiality made in furtherance of his duties under this section.
  4. A report prepared pursuant to this section shall be admissible as evidence in open court of the facts stated in the report and the results of the examination or evaluation referred to in the report, unless counsel for the respondent or the guardian ad litem objects.

    (1997, c. 921, § 37.1-134.11; 2005, c. 716, § 37.2-1005; 2012, c. 614; 2014, c. 402.)

The 2014 amendments. - The 2014 amendment by c. 402, in subsection A, inserted "under seal" and "the respondent, and all adult individuals and all entities to whom notice is required under subsection C of § 64.2-2004 " in the first sentence, and deleted "to the guardian ad litem" from the end; and in subsection D, inserted "in open court."

§ 64.2-2006. Counsel for respondent.

The respondent has the right to be represented by counsel of the respondent's choice. If the respondent is not represented by counsel, the court may appoint legal counsel upon the filing of the petition or at any time prior to the entry of the order upon request of the respondent or the guardian ad litem, if the court determines that counsel is needed to protect the respondent's interest. Counsel appointed by the court shall be paid a fee that is fixed by the court to be taxed as part of the costs of the proceeding.

A health care provider shall disclose or make available to the attorney, upon request, any information, records, and reports concerning the respondent that the attorney determines necessary to perform his duties under this section, including a copy of the evaluation report required under § 64.2-2005 .

(1997, c. 921, § 37.1-134.12; 2004, cc. 66, 1014; 2005, c. 716, § 37.2-1006; 2012, c. 614.)

§ 64.2-2007. Hearing on petition to appoint.

  1. The respondent is entitled to a jury trial upon request, and may compel the attendance of witnesses, present evidence on his own behalf, and confront and cross-examine witnesses.
  2. The court or the jury, if a jury is requested, shall hear the petition for the appointment of a guardian or conservator. The hearing may be held at such convenient place as the court directs, including the place where the respondent is located. The hearing shall be conducted within 120 days from the filing of the petition unless the court postpones it for cause. The proposed guardian or conservator shall attend the hearing except for good cause shown and, where appropriate, shall provide the court with a recommendation as to living arrangements and a treatment plan for the respondent. The respondent is entitled to be present at the hearing and all other stages of the proceedings. The respondent shall be present if he so requests or if his presence is requested by the guardian ad litem. Whether or not present, the respondent shall be regarded as having denied the allegations in the petition.
  3. In determining the need for a guardian or a conservator and the powers and duties of any guardian or conservator, if needed, consideration shall be given to the following factors: (i) the limitations of the respondent; (ii) the development of the respondent's maximum self-reliance and independence; (iii) the availability of less restrictive alternatives, including advance directives, supported decision-making agreements, and durable powers of attorney; (iv) the extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse; (v) the actions needed to be taken by the guardian or conservator; (vi) the suitability of the proposed guardian or conservator; and (vii) the best interests of the respondent.
  4. If, after considering the evidence presented at the hearing, the court or jury determines on the basis of clear and convincing evidence that the respondent is incapacitated and in need of a guardian or conservator, the court shall appoint a suitable person, who may be the spouse of the respondent, to be the guardian or the conservator or both, giving due deference to the wishes of the respondent. If a guardian or conservator is appointed, the court shall inform him of his duties and powers pursuant to Article 2 (§ 64.2-2019 et seq.) and shall further inform the guardian or conservator that, to the extent feasible, the respondent should be encouraged to participate in decisions, act on his own behalf, and develop or maintain the capacity to manage his personal affairs if he retains any decision-making rights. Except for good cause shown, including a determination by the court that there is no acceptable alternative available to serve, the court shall not appoint as guardian or conservator for the respondent an attorney who has been engaged by the petitioner to represent the petitioner within three calendar years of the appointment. Such prohibition also applies to all other attorneys and employees of the law firm with which such attorney is associated. The court shall require the proposed guardian or conservator to certify at the time of appointment that he has disclosed to the court any such representation of the petitioner or association with a law firm that represented the petitioner within the three calendar years preceding the appointment. Compensation paid by a petitioner to an attorney or law firm for serving as a guardian or conservator shall not constitute representation of the petitioner by such attorney or law firm. In the case of a petitioner that is a medical care facility as defined in § 32.1-102.1 , the court may, for good cause shown, order that the reasonable costs for the guardian or conservator be paid by the petitioner during the time the respondent is under the care of such medical care facility. The court in its order shall make specific findings of fact and conclusions of law in support of each provision of any orders entered. The order of appointment shall be made in a form that complies with the requirements set out in § 64.2-2009 . (1997, c. 921, § 37.1-134.13; 2005, c. 716, § 37.2-1007; 2009, c. 433; 2012, c. 614; 2013, c. 523; 2020, cc. 649, 855; 2021, Sp. Sess. I, c. 232.)

Editor's note. - Acts 2020, c. 855, cl. 2 provides: "That the Department of Behavioral Health and Developmental Services (the Department) shall convene a group of stakeholders to study the use of supported decision-making agreements in the Commonwealth, including making recommendations as to the use of supported decision-making agreements as a less restrictive alternative to the appointment of a guardian or conservator for an incapacitated person. The Department shall report the findings and recommendations of the stakeholder group's study to the Chairmen of the Senate Committee on the Judiciary and the House Committee on Health, Welfare, and Institutions no later than November 1, 2020."

The 2013 amendments. - The 2013 amendment by c. 523 added the third sentence in subsection B; and added "and (vii) the best interests of the respondent" at the end of subsection C.

The 2020 amendments. - The 2020 amendment by c. 649 added the last five sentences in subsection D.

The 2020 amendment by c. 855, in subsection D, added the second sentence in the first paragraph and the last sentence in the final paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 232, effective July 1, 2021, inserted "supported decision-making agreements" in clause (iii) of subsection C.

§ 64.2-2008. Fees and costs.

  1. The petitioner shall pay the filing fee set forth in subdivision A 42 of § 17.1-275 and costs. Service fees and court costs may be waived by the court if it is alleged under oath that the estate of the respondent is unavailable or insufficient. If a guardian or conservator is appointed and the court finds that the petition is brought in good faith and for the benefit of the respondent, the court shall order that the petitioner be reimbursed from the estate for all reasonable costs and fees if the estate of the incapacitated person is available and sufficient to reimburse the petitioner. If a guardian or conservator is not appointed and the court nonetheless finds that the petition is brought in good faith and for the benefit of the respondent, the court may direct the respondent's estate, if available and sufficient, to reimburse the petitioner for all reasonable costs and fees. The court may require the petitioner to pay or reimburse all or some of the respondent's reasonable costs and fees and any other costs incurred under this chapter if the court finds that the petitioner initiated a proceeding under this chapter that was in bad faith or not for the benefit of the respondent.
  2. In any proceeding filed pursuant to this article, if the adult subject of the petition is determined to be indigent, any fees and costs of the proceeding that are fixed by the court or taxed as costs shall be borne by the Commonwealth.

    (1998, c. 76, § 37.1-134.13:1; 2005, c. 716, § 37.2-1008; 2012, c. 614; 2013, c. 523; 2021, Sp. Sess. I, c. 427.)

The 2013 amendments. - The 2013 amendment by c. 523, in subsection A, inserted "reasonable" in the third and fourth sentences, inserted "and the court finds that the petition is brought in good faith and for the benefit of the respondent" in the third sentence, and added the last sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 427, effective July 1, 2021, substituted "subdivision A 42" for "subdivision A 43" in the first sentence of subsection A.

CIRCUIT COURT OPINIONS

Fees. - Considering the apparent hostility in this family, it was reasonable for petitioner to believe that appointment of a neutral third party guardian would better serve respondents' interests, and the orders appointing a guardian provided that those fees were to be paid out of respondents' estate; respondents' motion to order petitioner to pay the fees was denied. Culp v. Bryant, 94 Va. Cir. 451, 2016 Va. Cir. LEXIS 178 (Chesapeake Nov. 4, 2016).

§ 64.2-2009. Court order of appointment; limited guardianships and conservatorships.

  1. The court's order appointing a guardian or conservator shall (i) state the nature and extent of the person's incapacity; (ii) define the powers and duties of the guardian or conservator so as to permit the incapacitated person to care for himself and manage property to the extent he is capable; (iii) specify whether the appointment of a guardian or conservator is limited to a specified length of time, as the court in its discretion may determine; (iv) specify the legal disabilities, if any, of the person in connection with the finding of incapacity, including but not limited to mental competency for purposes of Article II, Section 1 of the Constitution of Virginia or Title 24.2; (v) include any limitations deemed appropriate following consideration of the factors specified in § 64.2-2007 ; (vi) set the bond of the guardian and the bond and surety, if any, of the conservator; and (vii) where a petition is brought prior to the incapacitated person's eighteenth birthday, pursuant to subsection C of § 64.2-2001 , whether the order shall take effect immediately upon entry or on the incapacitated person's eighteenth birthday.
  2. The court may appoint a limited guardian for an incapacitated person who is capable of addressing some of the essential requirements for his care for the limited purpose of medical decision making, decisions about place of residency, or other specific decisions regarding his personal affairs. The court may appoint a limited conservator for an incapacitated person who is capable of managing some of his property and financial affairs for limited purposes that are specified in the order.
  3. Unless the guardian has a professional relationship with the incapacitated person or is employed by or affiliated with a facility where the person resides, the court's order may authorize the guardian to consent to the admission of the person to a facility pursuant to § 37.2-805.1 , upon finding by clear and convincing evidence that (i) the person has severe and persistent mental illness that significantly impairs the person's capacity to exercise judgment or self-control, as confirmed by the evaluation of a licensed psychiatrist; (ii) such condition is unlikely to improve in the foreseeable future; and (iii) the guardian has formulated a plan for providing ongoing treatment of the person's illness in the least restrictive setting suitable for the person's condition.
  4. A guardian need not be appointed for a person who has appointed an agent under an advance directive executed in accordance with the provisions of Article 8 (§ 54.1-2981 et seq.) of Chapter 29 of Title 54.1, unless the court determines that the agent is not acting in accordance with the wishes of the principal or there is a need for decision making outside the purview of the advance directive. A conservator need not be appointed for a person (i) who has appointed an agent under a durable power of attorney, unless the court determines pursuant to the Uniform Power of Attorney Act (§ 64.2-1600 et seq.) that the agent is not acting in the best interests of the principal or there is a need for decision making outside the purview of the durable power of attorney or (ii) whose only or major source of income is from the Social Security Administration or other government program and who has a representative payee.
  5. All orders appointing a guardian shall include the following statements in conspicuous bold print in at least 14-point type: "1. Pursuant to § 64.2-2009 of the Code of Virginia, ________________________ (name of guardian), is hereby appointed as guardian of ________________________ (name of respondent) with all duties and powers granted to a guardian pursuant to § 64.2-2019 of the Code of Virginia, including but not limited to: (enter a statement of the rights removed and retained, if any, at the time of appointment; whether the appointment of a guardian is a full guardianship, public guardianship pursuant to § 64.2-2010 of the Code of Virginia, limited guardianship pursuant to § 64.2-2009 of the Code of Virginia, or temporary guardianship; and the duration of the appointment). 2. Pursuant to the provisions of subsection E of § 64.2-2019 of the Code of Virginia, a guardian, to the extent possible, shall encourage the incapacitated person to participate in decisions, shall consider the expressed desires and personal values of the incapacitated person to the extent known, and shall not unreasonably restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship. 3. Pursuant to § 64.2-2020 of the Code of Virginia, an annual report shall be filed by the guardian with the local department of social services for the jurisdiction where the incapacitated person resides. 4. Pursuant to § 64.2-2012 of the Code of Virginia, all guardianship orders are subject to petition for restoration of the incapacitated person to capacity; modification of the type of appointment or areas of protection, management, or assistance granted; or termination of the guardianship." (1997, c. 921, § 37.1-134.14; 1998, c. 582; 2005, c. 716, § 37.2-1009; 2009, cc. 211, 268; 2010, cc. 455, 632; 2012, c. 614; 2016, c. 31; 2020, c. 855.)

Editor's note. - Acts 2020, c. 855, cl. 2 provides: "That the Department of Behavioral Health and Developmental Services (the Department) shall convene a group of stakeholders to study the use of supported decision-making agreements in the Commonwealth, including making recommendations as to the use of supported decision-making agreements as a less restrictive alternative to the appointment of a guardian or conservator for an incapacitated person. The Department shall report the findings and recommendations of the stakeholder group's study to the Chairmen of the Senate Committee on the Judiciary and the House Committee on Health, Welfare, and Institutions no later than November 1, 2020."

The 2016 amendments. - The 2016 amendment by c. 31 added clause (vii) in subsection A and made related changes.

The 2020 amendments. - The 2020 amendment by c. 855 added subsection E.

Research References. - Virginia Forms (Matthew Bender). No. 6-707 Petition for Appointment of Limited Guardian and Limited Conservator, et seq; No. 16-1913 Advance Medical Directive, et seq.

CASE NOTES

Medical malpractice suit. - Pursuant to § 64.2-2025 , plaintiff's parents, as co-guardians responsible for her personal affairs, had the authority and obligation to prosecute lawsuits on plaintiff's behalf. Therefore, plaintiff lacked standing to file a medical malpractice suit in her own name. Lopez-Rosario v. Habib, 291 Va. 293 , 785 S.E.2d 214 (2016).

§ 64.2-2010. Eligibility for public guardian or conservator.

The circuit court may appoint a local or regional program authorized by the Department for Aging and Rehabilitative Services pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 as the guardian or conservator for any resident of the Commonwealth who is found to be incapacitated if the court finds that (i) the incapacitated person's resources are insufficient to fully compensate a private guardian and pay court costs and fees associated with the appointment proceeding and (ii) there is no other proper and suitable person willing and able to serve in such capacity or there is no guardian or conservator appointed within one month of adjudication pursuant to § 64.2-2015 . The court shall use the guidelines for determining indigency set forth in § 19.2-159 in determining the sufficiency of the respondent's estate. If the respondent would be eligible for the appointment of counsel pursuant to § 19.2-159 , he shall be eligible for the appointment of a public guardian or conservator pursuant to this section.

(1998, c. 787, § 37.1-134.14:1; 2005, cc. 712, 716, § 37.2-1010; 2012, cc. 614, 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 59, amended former § 37.2-1010, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 803 and 835, cl. 59, have been given effect in this section by substituting "Department for Aging and Rehabilitative Services" for "Department for the Aging" and "Article 6 ( § 51.5-149 et seq.) of Chapter 14 of Title 51.5" for "Article 2 ( § 2.2-711 et seq.) of Chapter 7 of Title 2.2."

§ 64.2-2011. Qualification of guardian or conservator; clerk to record order and issue certificate; reliance on certificate.

  1. A guardian or conservator appointed in the court order shall qualify before the clerk upon the following:
    1. Subscribing to an oath promising to faithfully perform the duties of the office in accordance with all provisions of this chapter;
    2. Posting of bond, but no surety shall be required on the bond of the guardian, and the conservator's bond may be with or without surety, as ordered by the court; and
    3. Acceptance in writing by the guardian or conservator of any educational materials provided by the court.
  2. Upon qualification, the clerk shall issue to the guardian or conservator a certificate with a copy of the order appended thereto. The clerk shall record the order in the same manner as a power of attorney would be recorded and shall, in addition to the requirements of § 64.2-2014 , provide a copy of the order to the commissioner of accounts. It shall be the duty of a conservator having the power to sell real estate to record the order in the office of the clerk of any jurisdiction where the respondent owns real property. If the order appoints a guardian, the clerk shall promptly forward a copy of the order to the local department of social services in the jurisdiction where the respondent then resides and to the Department of Medical Assistance Services.
  3. A conservator shall have all powers granted pursuant to § 64.2-2021 as are necessary and proper for the performance of his duties in accordance with this chapter, subject to the limitations that are prescribed in the order. The powers granted to a guardian shall only be those powers enumerated in the court order.
  4. Any individual or entity conducting business in good faith with a guardian or conservator who presents a currently effective certificate of qualification may presume that the guardian or conservator is properly authorized to act as to any matter or transaction, except to the extent of any limitations upon the fiduciary's powers contained in the court's order of appointment.
    1. A person that refuses in violation of this subsection to accept a certificate of qualification is subject to (i) a court order mandating acceptance of the certificate of qualification and (ii) liability for reasonable attorney fees and costs incurred in any action or proceeding that confirms the validity of the certificate of qualification or mandates acceptance of the certificate of qualification.
    2. A person shall either accept or reject a certificate of qualification no later than seven business days after presentation of such certificate of qualification for acceptance. A person is not required to accept a certificate of qualification for a transaction if:
      1. Engaging in the transaction with the guardian or conservator would be inconsistent with state or federal law;
      2. The person has actual knowledge of the termination of the authority of the guardian or conservator or of the certificate of qualification before exercise of the power;
      3. The person in good faith believes that the certificate of qualification is not valid or that the guardian or conservator does not have the authority to perform the act requested; or
      4. The person believes in good faith that the transaction may involve, facilitate, result in, or contribute to financial exploitation.

        (1997, c. 921, § 37.1-134.15; 1998, c. 582; 2005, c. 716, § 37.2-1011; 2012, c. 614; 2016, c. 30; 2020, c. 702.)

The 2016 amendments. - The 2016 amendment by c. 30 added "and to the Department of Medical Assistance Services" at the end of subsection B.

The 2020 amendments. - The 2020 amendment by c. 702 added subdivisions D 1 and D 2.

§ 64.2-2012. Petition for restoration, modification, or termination; effects.

  1. Upon petition by the incapacitated person, the guardian or conservator, or any other person or upon motion of the court, the court may (i) declare the incapacitated person restored to capacity; (ii) modify the type of appointment or the areas of protection, management, or assistance previously granted or require a new bond; (iii) terminate the guardianship or conservatorship; (iv) order removal of the guardian or conservator as provided in § 64.2-1410 ; or (v) order other appropriate relief. The fee for filing the petition shall be as provided in subdivision A 42 of § 17.1-275 .
  2. In the case of a petition for modification to expand the scope of a guardianship or conservatorship, the incapacitated person shall be entitled to a jury, upon request. Notice of the hearing and a copy of the petition shall be personally served on the incapacitated person and mailed to other persons entitled to notice pursuant to § 64.2-2004 . The court shall appoint a guardian ad litem for the incapacitated person and may appoint one or more licensed physicians or psychologists or licensed professionals skilled in the assessment and treatment of the physical or mental conditions of the incapacitated person, as alleged in the petition, to conduct an evaluation. Upon the filing of any other such petition or upon the motion of the court, and after reasonable notice to the incapacitated person, any guardian or conservator, any attorney of record, any person entitled to notice of the filing of an original petition as provided in § 64.2-2004 , and any other person or entity as the court may require, the court shall hold a hearing.
  3. An order appointing a guardian or conservator may be revoked, modified, or terminated upon a finding that it is in the best interests of the incapacitated person and that:
    1. The incapacitated person is no longer in need of the assistance or protection of a guardian or conservator;
    2. The extent of protection, management, or assistance previously granted is either excessive or insufficient considering the current need of the incapacitated person;
    3. The incapacitated person's understanding or capacity to manage his estate and financial affairs or to provide for his health, care, or safety has so changed as to warrant such action; or
    4. Circumstances are such that the guardianship or conservatorship is no longer necessary or is insufficient.
  4. The court shall declare the person restored to capacity and discharge the guardian or conservator if, on the basis of evidence offered at the hearing, the court finds by a preponderance of the evidence that the incapacitated person has substantially regained his ability to (i) care for his person in the case of a guardianship or (ii) manage and handle his estate in the case of a conservatorship.

    In the case of a petition for modification of a guardianship or conservatorship, the court shall order (a) limiting or reducing the powers of the guardian or conservator if the court finds by a preponderance of the evidence that it is in the best interests of the incapacitated person to do so, or (b) increasing or expanding the powers of the guardian or conservator if the court finds by clear and convincing evidence that it is in the best interests of the incapacitated person to do so.

    The court may order a new bond or other appropriate relief upon finding by a preponderance of the evidence that the guardian or conservator is not acting in the best interests of the incapacitated person or of the estate.

  5. The powers of a guardian or conservator shall terminate upon the death, resignation, or removal of the guardian or conservator or upon the termination of the guardianship or conservatorship.

    A guardianship or conservatorship shall terminate upon the death of the incapacitated person or, if ordered by the court, following a hearing on the petition of any interested person.

  6. The court may allow reasonable compensation from the estate of the incapacitated person to any guardian ad litem, attorney, or evaluator appointed pursuant to this section. Any compensation allowed shall be taxed as costs of the proceeding.

    (1997, c. 921, § 37.1-134.16; 2005, c. 716, § 37.2-1012; 2012, c. 614; 2021, Sp. Sess. I, c. 427.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 427, effective July 1, 2021, substituted "subdivision A 42" for "subdivision A 43" in clause (v) of subsection A.

§ 64.2-2013. Standby guardianship or conservatorship for incapacitated persons.

  1. For purposes of this section, the term "person" includes a child or a parent sharing a biological relationship with one another or having a relationship established by adoption, a relationship established pursuant to Chapter 9 (§ 20-156 et seq.) of Title 20, or a relationship established by a judicial proceeding that establishes parentage or orders legal guardianship. The term includes persons 18 years of age and over.
  2. On petition of one or both parents, one or more children, or the legal guardian of an incapacitated person made to the circuit court for the jurisdiction where the parent, parents, child, children, or legal guardian resides, the court may appoint a standby guardian or a standby conservator, or both, of the incapacitated person. The appointment of the standby fiduciary shall be affirmed biennially by the parent, parents, child, children, or legal guardian of the person and by the standby fiduciary prior to his assuming his position as fiduciary by filing with the court an affidavit that states that the standby fiduciary remains available and capable to fulfill his duties.
  3. The standby fiduciary shall be authorized without further proceedings to assume the duties of his office immediately upon the death or adjudication of incapacity of the last surviving of the parents or children of the incapacitated person or of his legal guardian, subject to confirmation of his appointment by the circuit court within 60 days following assumption of his duties. If the incapacitated person is 18 years of age or older, the court, before confirming the appointment of the standby fiduciary, shall conduct a hearing pursuant to this article. The requirements of the court and the powers, duties, and liabilities that pertain to guardians and conservators govern the confirmation of the standby fiduciary and shall apply to the standby fiduciary upon the assumption of his duties.

    (1997, c. 921, § 37.1-134.17; 2004, c. 135; 2005, c. 716, § 37.2-1013; 2012, c. 614.)

§ 64.2-2014. Clerk to index findings of incapacity or restoration; notice of findings.

  1. A copy of the court's findings that a person is incapacitated or has been restored to capacity, or a copy of any order appointing a conservator or guardian pursuant to § 64.2-2115 , shall be filed by the judge with the clerk of the circuit court for the county or city where the hearing took place as soon as practicable, but no later than the close of business on the next business day following the completion of the hearing. The clerk shall properly index the findings in the index to deed books by reference to the order book and page whereon the order is spread and shall immediately notify the Commissioner of Behavioral Health and Developmental Services in accordance with § 64.2-2028 , the commissioner of accounts in order to ensure compliance by a conservator with the duties imposed pursuant to §§ 64.2-2021 , 64.2-2022 , 64.2-2023 , and 64.2-2026 , and the Commissioner of Elections with the information required by § 24.2-410 . If a guardian is appointed, the clerk shall forward a copy of the court order to the local department of social services of the jurisdiction where the person then resides and to the Department of Medical Assistance Services. If a guardianship is terminated or otherwise modified, the clerk shall forward a copy of the court order to the local department of social services to which the original order of appointment was forwarded, to the local department of social services in the jurisdiction where the person then resides, if different from the department to which the original order was forwarded, and to the Department of Medical Assistance Services.
  2. The clerk shall, as soon as practicable, but no later than the close of business on the following business day, certify and forward upon receipt to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any order adjudicating a person incapacitated under this article, any order appointing a conservator or guardian pursuant to § 64.2-2115 , and any order of restoration of capacity under § 64.2-2012 . Except as provided in subdivision A 1 of § 19.2-389 , the copy of the form and the order shall be kept confidential in a separate file and used only to determine a person's eligibility to possess, purchase, or transfer a firearm. (1997, c. 921, § 37.1-134.18; 1998, c. 582; 2001, cc. 478, 479, 507; 2005, c. 716, § 37.2-1014; 2011, c. 518; 2012, c. 614; 2013, c. 542; 2014, cc. 336, 374; 2015, c. 540; 2016, c. 30.)

Editor's note. - Acts 2013, c. 542, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2014."

The 2013 amendments. - The 2013 amendment by c. 542, effective July 1, 2014, substituted "Commissioner of Elections" for "Secretary of the State Board of Elections" in the second sentence in subsection A.

The 2014 amendments. - The 2014 amendments by cc. 336 and 374 are identical, and in subsection A, inserted "for the county or city where the hearing took place as soon as practicable, but no later than the close of business on the next business day following the completion of the hearing" at the end of the first sentence; and in subsection B inserted "as soon as practicable, but no later than the close of business on the following day" and substituted "upon receipt" for "forthwith."

The 2015 amendments. - The 2015 amendment by c. 540 substituted "Except as provided in subdivision A 1 of § 19.2-389 , the" for "The" in the second sentence of subsection B.

The 2016 amendments. - The 2016 amendment by c. 30 added "and to the Department of Medical Assistance Services" at the end of the third sentence and substituted "to the local department of social services in the jurisdiction where the person then resides, if different from the department to which the original order was forwarded, and to the Department of Medical Assistance Services" for "and, if different, to the local department of social services in the jurisdiction where the person then resides," in the last sentence of subsection A.

OPINIONS OF THE ATTORNEY GENERAL

State Police may provide mental health information to FBI to determine a person's eligibility to possess, purchase, or transfer a firearm. - The Department of State Police has the authority to provide certain mental health information maintained in the Central Criminal Records Exchange to the Federal Bureau of Investigation, so long as it is (i) kept confidential; and (ii) used only to determine a person's eligibility to possess, purchase or transfer a firearm. See opinion of Attorney General to Colonel W. Gerald Massengill, Superintendent, Department of State Police, 01-062 (4/4/02) (decided under prior law).

§ 64.2-2015. When no guardian or conservator appointed within one month of adjudication.

  1. If a person is adjudicated incapacitated and in need of a guardian or conservator and the court has not identified any person to serve as guardian or conservator within one month from the adjudication, the court may appoint a local or regional program of the Virginia Public Guardian and Conservator Program authorized by the Department for Aging and Rehabilitative Services pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5. If there is no such local or regional program within the court's jurisdiction, the court may appoint any local or regional program within 60 miles of the residence of the incapacitated person as identified by the Department for Aging and Rehabilitative Services. However, the court shall not appoint any such local or regional program that has reached or exceeded its ideal ratio of clients to staff pursuant to regulations adopted by the Department for Aging and Rehabilitative Services under § 51.5-150 .
  2. If any person appointed as a fiduciary under this title refuses the trust or fails to give bond as required within one month from the date of his appointment, the court, on motion of any interested person, may appoint some other person as fiduciary, taking from the fiduciary the bond required, or shall commit the estate of the respondent to the sheriff of the county or city where the respondent is an inhabitant; and the sheriff shall be the fiduciary, and he and the sureties in his official bond shall be bound for the faithful performance of the trust.

    (Code 1950, § 37-145; 1950, p. 923; 1968, c. 477, § 37.1-137; 1971, Ex. Sess., c. 155; 1976, c. 671; 1997, c. 921, § 37.1-134.19; 1998, c. 787; 2005, cc. 712, 716, § 37.2-1015; 2012, cc. 614, 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 59, amended former § 37.2-1015, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 803 and 835, cl. 59, have been given effect in this section by substituting "Department for Aging and Rehabilitative Services" for "Department for the Aging" three times and substituting "Article 6 ( § 51.5-149 et seq.) of Chapter 14 of Title 51.5" for "Article 2 ( § 2.2-711 et seq.) of Chapter 7 of Title 2.2" and "51.5-150" for "2.2-712" in the first paragraph.

§ 64.2-2016. Trustees for incapacitated veterans and their beneficiaries.

  1. Whenever any veteran of the armed forces of the United States or the beneficiary of any veteran is found to be incapacitated by the medical authorities of the U.S. Department of Veterans Affairs, on motion of the U.S. Department of Veterans Affairs or any interested person, and after reasonable notice to the veteran or beneficiary, the circuit court of the county or the city in which the veteran or beneficiary resides, in lieu of appointing a conservator or finding him to be incapacitated, shall appoint a trustee for the veteran or the beneficiary of the veteran where it appears to the court that a trustee is needed for the purpose of receiving and administering pension, compensation, insurance, or other benefits that might be paid by the United States government. Any motion shall be accompanied by a certificate of the Secretary of Veterans Affairs or his duly authorized representative certifying that the veteran or beneficiary has been rated incapacitated by the U.S. Department of Veterans Affairs and that the appointment of a trustee is a condition precedent to the payment of any moneys due the veteran or the beneficiary.
  2. Upon his qualification, the trustee, in addition to administering the funds payable through the U.S. Department of Veterans Affairs, shall administer the entire estate of the veteran or the beneficiary regardless of the source from which it is derived and, in such administration, shall have the same powers and duties and be subject to the same liabilities as are vested in or imposed upon a conservator pursuant to this chapter. The trustee, in addition to the duties and obligations imposed upon him under his trust by the federal government, shall be subject to the state laws that are applicable to the appointment and administration of conservators for incapacitated persons.
  3. The court that appointed the trustee for a veteran or beneficiary pursuant to this section may subsequently find that the veteran or beneficiary has been restored to capacity.

    (1997, c. 921, § 37.1-134.20; 2005, c. 716, § 37.2-1016; 2012, c. 614.)

CASE NOTES

In a proceeding for the removal of the committee of an insane veteran it was held that former § 37.1-134 fully recognized the right of the Veterans' Bureau (now Veterans' Administration) to proceed in the courts in matters of this nature. United States Veterans' Bureau v. Thomas, 156 Va. 902 , 159 S.E. 159 (1931) (decided under prior law).

§ 64.2-2017. Payments from U.S. Department of Veterans Affairs.

Monthly payments of pension, compensation, insurance, or other benefits from the U.S. Department of Veterans Affairs made to a trustee or other fiduciary shall be considered as income and not principal, but the accumulation of such monthly payments received by a trustee or other fiduciary and in his possession at the end of the accounting year may be carried over as principal and converted into the corpus of the estate when the accumulation amounts to $2,000 or more.

(Code 1950, § 37-150.1; 1966, c. 310; 1968, c. 477, § 37.1-143; 2005, c. 716, § 37.2-1017; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532 substituted "$2,000" for "$200."

§ 64.2-2018. Taking of bond by clerk of court.

Whenever this title provides for the appointment of a fiduciary by a circuit court, the clerk of the court also shall have the authority to take the required bond, set the penalty thereof, and pass upon the sufficiency of the surety thereon.

(Code 1950, § 37-144.1; 1958, c. 277; 1968, cc. 383, 477, § 37.1-136; 1976, c. 671; 2005, c. 716, § 37.2-1019; 2012, c. 614.)

Article 2. Powers, Duties, and Liabilities.

§ 64.2-2019. Duties and powers of guardian.

  1. A guardian stands in a fiduciary relationship to the incapacitated person for whom he was appointed guardian and may be held personally liable for a breach of any fiduciary duty to the incapacitated person. A guardian shall not be liable for the acts of the incapacitated person unless the guardian is personally negligent. A guardian shall not be required to expend personal funds on behalf of the incapacitated person.
  2. A guardian's duties and authority shall not extend to decisions addressed in a valid advance directive or durable power of attorney previously executed by the incapacitated person. A guardian may seek court authorization to revoke, suspend, or otherwise modify a durable power of attorney, as provided by the Uniform Power of Attorney Act (§ 64.2-1600 et seq.). Notwithstanding the provisions of the Health Care Decisions Act (§ 54.1-2981 et seq.) and in accordance with the procedures of § 64.2-2012 , a guardian may seek court authorization to modify the designation of an agent under an advance directive, but the modification shall not in any way affect the incapacitated person's directives concerning the provision or refusal of specific medical treatments or procedures.
  3. A guardian shall maintain sufficient contact with the incapacitated person to know of his capabilities, limitations, needs, and opportunities. The guardian shall visit the incapacitated person as often as necessary.
  4. A guardian shall be required to seek prior court authorization to change the incapacitated person's residence to another state, to terminate or consent to a termination of the person's parental rights, or to initiate a change in the person's marital status.
  5. A guardian shall, to the extent feasible, encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the incapacitated person to the extent known and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence. A guardian shall not unreasonably restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship.
  6. A guardian shall have authority to make arrangements for the funeral and disposition of remains, including cremation, interment, entombment, memorialization, inurnment, or scattering of the cremains, or some combination thereof, if the guardian is not aware of any person that has been otherwise designated to make such arrangements as set forth in § 54.1-2825 . A guardian shall have authority to make arrangements for the funeral and disposition of remains after the death of an incapacitated person if, after the guardian has made a good faith effort to locate the next of kin of the incapacitated person to determine if the next of kin wishes to make such arrangements, the next of kin does not wish to make the arrangements or the next of kin cannot be located. Good faith effort shall include contacting the next of kin identified in the petition for appointment of a guardian. The funeral service licensee, funeral service establishment, registered crematory, cemetery, cemetery operator, or guardian shall be immune from civil liability for any act, decision, or omission resulting from acceptance of any dead body for burial, cremation, or other disposition when the provisions of this section are met, unless such acts, decisions, or omissions resulted from bad faith or malicious intent. (1997, c. 921, § 37.1-137.1; 2005, c. 716, § 37.2-1020; 2010, cc. 455, 632; 2012, cc. 463, 614; 2016, cc. 404, 405.)

Editor's note. - Acts 2012, c. 463 amended former § 37.2-1020, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendment by Acts 2012, c. 463 has been given effect in this section by adding subsection F.

The 2016 amendments. - The 2016 amendments by cc. 404 and 405 are identical, and added the last sentence in subsection E.

Applied in Lopez-Rosario v. Habib, 291 Va. 293 , 785 S.E.2d 214 (2016).

CIRCUIT COURT OPINIONS

Divorce of incapacitated person. - Husband could not proceed with a divorce case by using the husband's sibling as an agent under a general power of attorney grantedbecause a general power of attorney did not permit an agent to maintain a divorce action for an incapacitated person. The circuit court further found that the husband had to first obtain a guardian to maintain the divorce. Heu v. Kim,, 2021 Va. Cir. LEXIS 7 (Fairfax County Jan. 8, 2021).

§ 64.2-2020. Annual reports by guardians.

  1. A guardian shall file an annual report in compliance with the filing deadlines in § 64.2-1305 with the local department of social services for the jurisdiction where the incapacitated person then resides. The annual report shall be on a form prepared by the Office of the Executive Secretary of the Supreme Court and shall be accompanied by a filing fee of $5. The local department shall retain the fee in the jurisdiction where the fee is collected for use in the provision of services to adults in need of protection. Within 60 days of receipt of the annual report, the local department shall file a copy of the annual report with the clerk of the circuit court that appointed the guardian, to be placed with the court papers pertaining to the guardianship case. Twice each year the local department shall file with the clerk of the circuit court a list of all guardians who are more than 90 days delinquent in filing an annual report as required by this section. If the guardian is also a conservator, a settlement of accounts shall also be filed with the commissioner of accounts as provided in § 64.2-1305 .
  2. The annual report to the local department of social services shall include:
    1. A description of the current mental, physical, and social condition of the incapacitated person;
    2. A description of the incapacitated person's living arrangements during the reported period;
    3. The medical, educational, vocational, and other professional services provided to the incapacitated person and the guardian's opinion as to the adequacy of the incapacitated person's care;
    4. A statement of the frequency and nature of the guardian's visits with and activities on behalf of the incapacitated person;
    5. A statement of whether the guardian agrees with the current treatment or habilitation plan;
    6. A recommendation as to the need for continued guardianship, any recommended changes in the scope of the guardianship, and any other information useful in the opinion of the guardian; and
    7. The compensation requested and the reasonable and necessary expenses incurred by the guardian.

      The guardian shall certify by signing under oath that the information contained in the annual report is true and correct to the best of his knowledge. If a guardian makes a false entry or statement in the annual report, he shall be subject to a civil penalty of not more than $500. Such penalty shall be collected by the attorney for the Commonwealth or the county or city attorney, and the proceeds shall be deposited into the general fund.

  3. If the local department of social services files notice that the annual report has not been timely filed in accordance with subsection A with the clerk of the circuit court, the court may issue a summons or rule to show cause why the guardian has failed to file such annual report.

    (1997, c. 921, § 37.1-137.2; 1998, c. 582; 2000, c. 198; 2003, c. 527; 2005, c. 716, § 37.2-1021; 2012, c. 614; 2013, c. 133; 2019, c. 443; 2020, cc. 190, 372.)

The 2013 amendments. - The 2013 amendment by c. 133 combined the former first and second sentences of subsection A into one sentence by deleting "in which he was appointed. It shall be the duty of that local department to forward the report to the local department of the jurisdiction" following "for the jurisdiction" in the first sentence.

The 2019 amendments. - The 2019 amendment by c. 443, in subsections A and B, inserted "annual" preceding "report" four times; and in subdivisions B 2 through 4, inserted "incapacitated" preceding both "person" and "person's" four times; and added subsection C.

The 2020 amendments. - The 2020 amendments by cc. 190 and 372 are identical, and in the last paragraph in subsection B, inserted "by signing under oath" in the first sentence and added the last two sentences.

Research References. - Virginia Forms (Matthew Bender). No. 6-703 Petition for Appointment of Guardian and Conservator, et seq.; No. 15-482 Annual Report of Guardian for an Incapacitated Person.

§ 64.2-2021. General duties and liabilities of conservator.

  1. At all times the conservator shall exercise reasonable care, diligence, and prudence and shall act in the best interest of the incapacitated person. To the extent known to him, a conservator shall consider the expressed desires and personal values of the incapacitated person.
  2. Subject to any conditions or limitations set forth in the conservatorship order, the conservator shall take care of and preserve the estate of the incapacitated person and manage it to the best advantage. The conservator shall apply the income from the estate, or so much as may be necessary, to the payment of the debts of the incapacitated person, including payment of reasonable compensation to himself and to any guardian appointed, and to the maintenance of the person and of his legal dependents, if any, and, to the extent that the income is not sufficient, he shall so apply the corpus of the estate.
  3. A conservator shall, to the extent feasible, encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage the estate and his financial affairs. A conservator also shall consider the size of the estate, the probable duration of the conservatorship, the incapacitated person's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.
  4. A conservator stands in a fiduciary relationship to the incapacitated person for whom he was appointed conservator and may be held personally liable for a breach of any fiduciary duty. Unless otherwise provided in the contract, a conservator is personally liable on a contract entered into in a fiduciary capacity in the course of administration of the estate, unless he reveals the representative capacity and identifies the estate in the contract. Claims based upon contracts entered into by a conservator in a fiduciary capacity, obligations arising from ownership or control of the estate, or torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable therefor. A successor conservator is not personally liable for the contracts or actions of a predecessor.
  5. A conservator shall comply with and be subject to the requirements imposed upon fiduciaries generally under Part A (§ 64.2-1200 et seq.) of this subtitle, specifically including the duty to account set forth in § 64.2-1305 . (1997, c. 921, § 37.1-137.3; 2005, c. 716, § 37.2-1022; 2012, c. 614.)

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Committee has management of ward's property. - A committee is appointed for the purpose of securing a competent person to manage the property of an incompetent adult. The ownership of the property remains in the incompetent. Its management alone is transferred to the committee for preservation and such wise expenditure as may be most beneficial to the incompetent owner. Somers v. Godwin, 182 Va. 144 , 27 S.E.2d 909 (1943).

While it is the duty of the committee to render his accounts annually before a commissioner of the court in which he qualified ( § 26-17), he has absolute control and management of his ward's estate, and § 26-38, which authorizes the court to order money in the hands of any fiduciary to be invested, etc., and the statute relative to the payment of taxes on funds under the control of the court, have no application to funds in the hands of a committee or other fiduciary who is the representative of, or holds the estate of, a person under disability, such fiduciary being at all times liable for interest upon the annual balances in his hands. Said statutes only apply to such fiduciaries as represent the court and are the means by which the court holds and controls the fund in its charge. Hurt v. City of Bristol, 104 Va. 213 , 51 S.E. 223 (1905). See Merchant's Adm'r v. Shry, 116 Va. 437 , 82 S.E. 106 (1914).

Power of guardian or committee to incur obligations for necessities. - While the general rule is that a guardian is without power to bind a ward or his estate by contract, a guardian or committee of an incompetent may incur obligations for necessaries, such as care and support of his ward, without the prior approval of the court. Carter v. Cavalier Cent. Bank & Trust Co., 223 Va. 571 , 292 S.E.2d 305 (1982).

Conversion of realty to personalty or personalty to realty through purchase of security at foreclosure sale. - On appeal from a decree directing a trustee to execute and deliver to the committee of an insane person a deed to real estate sold under foreclosure proceedings at public auction, the trustee contended that the purchase of the property by the committee would have converted his ward's estate from personalty to realty, which he had no legal right to do without the sanction of a court of competent jurisdiction. The ward's personal funds had been invested by a prior committee in a bond secured by the real estate involved. The trial court, prior to the completion of the sale and transfer of the property, approved and confirmed its purchase by the committee as for the best interest of the ward. It was held that the committee was clothed with an implied power under former version of this section to bid on the property to prevent the trust estate from being deprived of its security at less than its fair value; and under all of the circumstances, the spirit of the rule requiring the consent of the court had been observed. Somers v. Godwin, 182 Va. 144 , 27 S.E.2d 909 (1943).

The proceeds of land sold during incompetency of testatrix should not share with the personal estate in payment of her expenses during incompetency. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953).

The paramount duty of the committee is to attend to his ward's wants and comforts and to furnish him so far as the funds in his hands will allow, with not only all the necessaries of life, but all the proper recreation and amusements consistent with his former habit of living. The care, health and comfort of the ward alone are to be considered, and this without reference to the interest of the next of kin, heirs at law and expectants. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

The committee may expend the corpus of his ward's personal estate in his discretion, subject only to the future confirmation of his reports by the court, which should follow if the expenditures were bona fide and reasonably necessary and proper under all the circumstances of the case. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914). See Hauser v. King, 76 Va. 731 (1882); Davidson v. Pope, 82 Va. 747 , 1 S.E. 117 (1887).

Without first obtaining the court's permission. - While the court has supervision of the expenditures made by the committee of an insane person, it cannot be considered malfeasance in office for the committee to trench upon the corpus of his ward's personal estate to the extent that it may be necessary to the maintenance of the ward and of his family, if any, without first obtaining permission from the court. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

Discontinuance of allowance to ward's adult children. - Where the continuance by the committee of a weekly allowance formerly made by the ward to each of his adult children trenched upon the corpus of his personal estate, the Supreme Court cannot say that the action of the trial court in directing its discontinuance was not justified. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

Will executed prior to incompetency. - Since the ownership of the property remains in the incompetent, where it has been disposed of by a valid will prior to incompetency neither the committee nor the court can rewrite the will or change the beneficiaries named therein. The form of the property may be changed for certain purposes but the will cannot be revoked or modified. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953).

Liability of committee. - The committee is liable for whatever estate of his ward he received by virtue and under color of his appointment. If one assumes to act as a trustee in relation to trust property, without just authority, he shall be held liable equally as if he had been lawfully appointed. Neither the committee nor his sureties could, in another proceeding, object that the order appointing the committee was void. Pannill's Adm'r v. Calloway's Comm., 78 Va. 387 (1884).

Same; interest. - As a general rule the committee of a lunatic is only to be charged simple interest upon the balances found against him on a settlement of his account. Crigler's Comm. v. Alexander's Ex'r, 74 Va. (33 Gratt.) 674 (1880). See Bird's Comm. v. Bird, 62 Va. (21 Gratt.) 712 (1872).

Same; liability of sureties. - The estate of the committee should be first exhausted before that of his sureties is touched for money for which he is officially liable. Pannill's Adm'r v. Calloway's Comm., 78 Va. 387 (1884).

The answer of a committee as to the amount of his ward's lien, in a creditor's suit does not relieve the court of the necessity of taking an account of such lien; and if the answer mistakes the amount of the lien, both the committee and court are under obligation to correct the mistake. Calloway's Comm. v. Dinsmore, 83 Va. 309 , 2 S.E. 517 (1887).

Fixing of the amount of compensation that the committee should receive for his services out of the estate of his ward rests in the sound discretion of the court under all the circumstances of the case. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

A debt due the committee from the estate of his ward is proper to be entered in his account, as it is his only remedy; and when the account is confirmed it is beyond the operation of the statute of limitations like any other item of such confirmed account. Carter v. Edmonds, 80 Va. 58 (1885).

Committee has no right to release claim to prejudice of sureties. - A committee is entitled under this section to apply his ward's personalty to her support, so far as necessary, and having maintained her out of his own means, has a claim against her estate for his reimbursement which claim he has no right to release, and thus put a burden on the sureties on his bond. Hauser v. King, 76 Va. 731 (1882).

CIRCUIT COURT OPINIONS

Revocation of beneficiary. - Revocation of a wife as the designated beneficiary of a life insurance policy was upheld because the evidence a daughter submitted about her father's capacity and wish to change his beneficiary was not controverted; that the father preferred to confer a benefit on his daughter, who took him in and cared for him, rather than on a wife of just a few years, who was removed as guardian for malfeasance and who had no contact with him for years, was supported by a preponderance of the evidence. Minn. Life Ins. Co. v. Brown, 97 Va. Cir. 68, 2012 Va. Cir. LEXIS 204 (Norfolk Nov. 21, 2012).

If an incapacitated person may have sufficient capacity to make a will, it follows that he or she may likewise have sufficient capacity to direct a change in his or her life insurance beneficiary designation; both are testamentary decisions that take effect at death. Minn. Life Ins. Co. v. Brown, 97 Va. Cir. 68, 2012 Va. Cir. LEXIS 204 (Norfolk Nov. 21, 2012).

§ 64.2-2022. Management powers and duties of conservator.

  1. A conservator, in managing the estate, shall have the powers set forth in § 64.2-105 as of the date the conservator acts as well as the following powers, which may be exercised without prior court authorization except as otherwise specifically provided in the court's order of appointment:
    1. To ratify or reject a contract entered into by an incapacitated person;
    2. To pay any sum distributable for the benefit of the incapacitated person or for the benefit of a legal dependent by paying the sum directly to the distributee, to the provider of goods and services, to any individual or facility that is responsible for or has assumed responsibility for care and custody, or to a distributee's custodian under a Uniform Gifts or Transfers to Minors Act of any applicable jurisdiction or by paying the sum to the guardian of the incapacitated person or, in the case of a dependent, to the dependent's guardian or conservator;
    3. To maintain life, health, casualty, and liability insurance for the benefit of the incapacitated person or his legal dependents;
    4. To manage the estate following the termination of the conservatorship until its delivery to the incapacitated person or successors in interest;
    5. To execute and deliver all instruments and to take all other actions that will serve in the best interests of the incapacitated person;
    6. To initiate a proceeding (i) to revoke a power of attorney under the provisions of the Uniform Power of Attorney Act (§ 64.2-1600 et seq.), (ii) to make an augmented estate election under § 64.2-302 or 64.2-308.13 , as applicable, or (iii) to make an election to take a family allowance, exempt property, or a homestead allowance under § 64.2-313 ; and
    7. To borrow money for periods of time and upon terms and conditions for rates, maturities, renewals, and security that to the conservator shall seem advisable, including the power to borrow from the conservator, if the conservator is a bank, for any purpose; to mortgage or pledge the portion of the incapacitated person's estate that may be required to secure the loan or loans; and, as maker or endorser, to renew existing loans.
  2. The court may impose requirements to be satisfied by the conservator prior to the conveyance of any interest in real estate, including (i) increasing the amount of the conservator's bond, (ii) securing an appraisal of the real estate or interest, (iii) giving notice to interested parties as the court deems proper, (iv) consulting by the conservator with the commissioner of accounts and, if one has been appointed, with the guardian, and (v) requiring the use of a common source information company, as defined in § 54.1-2130 , when listing the property. If the court imposes any such requirements, the conservator shall make a report of his compliance with each requirement, to be filed with the commissioner of accounts. Promptly following receipt of the conservator's report, the commissioner of accounts shall file a report with the court indicating whether the requirements imposed have been met and whether the sale is otherwise consistent with the conservator's duties. The conveyance shall not be closed until a report by the commissioner of accounts is filed with the court and confirmed as provided in §§ 64.2-1212 , 64.2-1213 , and 64.2-1214 . (1997, c. 921, § 37.1-137.4; 2004, cc. 652, 756; 2005, c. 716, § 37.2-1023; 2007, c. 694; 2010, cc. 455, 632; 2012, c. 614; 2013, c. 523; 2016, cc. 187, 269.)

The 2013 amendments. - The 2013 amendment by c. 523 added clause (iii) in subdivision A 6, and made a related change.

The 2016 amendments. - The 2016 amendments by cc. 187 and 269 are identical, and inserted "or 64.2-308.13 , as applicable," in subdivision A 6.

Research References. - Virginia Forms (Matthew Bender). No. 1-106 Style and Commencement of Action by Conservator of Incapacitated Person; No. 5-1004 Complaint to Set Aside Deed Because of Mental Incapacity; No. 6-703 Petition for Appointment of Guardian and Conservator, et seq.

CIRCUIT COURT OPINIONS

Revocation of beneficiary. - Revocation of a wife as the designated beneficiary of a life insurance policy was upheld because the evidence a daughter submitted about her father's capacity and wish to change his beneficiary was not controverted; that the father preferred to confer a benefit on his daughter, who took him in and cared for him, rather than on a wife of just a few years, who was removed as guardian for malfeasance and who had no contact with him for years, was supported by a preponderance of the evidence. Minn. Life Ins. Co. v. Brown, 97 Va. Cir. 68, 2012 Va. Cir. LEXIS 204 (Norfolk Nov. 21, 2012).

If an incapacitated person may have sufficient capacity to make a will, it follows that he or she may likewise have sufficient capacity to direct a change in his or her life insurance beneficiary designation; both are testamentary decisions that take effect at death. Minn. Life Ins. Co. v. Brown, 97 Va. Cir. 68, 2012 Va. Cir. LEXIS 204 (Norfolk Nov. 21, 2012).

Conservator's recovery. - Specific harm to the estate caused by the prior conservator's defalcation amounted to costs incurred in taking over the estate and performing the past due duties, and thus the bond secured by the prior conservator was liable for such costs, and the successor conservator was entitled to seek recovery directly from the insurer as the process of first billing the estate was inefficient. In re Estate of Bone, 91 Va. Cir. 547, 2014 Va. Cir. LEXIS 157 (Chesapeake Nov. 21, 2014).

§ 64.2-2023. Estate planning.

  1. In the order appointing a conservator entered pursuant to § 64.2-2009 or in a separate proceeding brought on petition, the court may for good cause shown authorize a conservator to (i) make gifts from income and principal of the incapacitated person's estate not necessary for the incapacitated person's maintenance to those persons to whom the incapacitated person would, in the judgment of the court, have made gifts if he had been of sound mind, (ii) disclaim property as provided in Chapter 26 (§ 64.2-2600 et seq.), or (iii) create a revocable or irrevocable trust on behalf of an incapacitated person with terms approved by the court or transfer assets of an incapacitated person or an incapacitated person's estate to a trust.
  2. In a proceeding under this section, a guardian ad litem shall be appointed to represent the interest of the incapacitated person. Notice of a proceeding under this section shall be given pursuant to Chapter 8 (§ 8.01-285 et seq.) of Title 8.01 and the Rules of Supreme Court of Virginia to: (i) the incapacitated person and the incapacitated person's spouse and children, (ii) all beneficiaries named in any known will of the incapacitated person, (iii) the incapacitated person's intestate heirs determined as if the incapacitated person had died intestate on the date of the filing of the petition, and (iv) all other interested persons. The court may authorize the hearing to proceed without notice to any person who would not be substantially affected by the proceedings. For the purposes of this section, the beneficiaries and intestate heirs shall be deemed possessed of inchoate property rights. Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may with the approval of the court be represented and bound by another having a substantially identical interest with respect to the will proceeding under this section, but only to the extent that there is no conflict of interest between the representative and the person represented.
  3. The court shall determine the amounts, recipients, and proportions of any gifts of the estate, the advisability of any disclaimer, whether good cause exists to create a trust or transfer assets, and whether to approve the trust terms after considering (i) the size and composition of the estate; (ii) the nature and probable duration of the incapacity; (iii) the effect of the gifts, disclaimers, trusts, or transfers on the estate's financial ability to meet the incapacitated person's foreseeable health, medical care, and maintenance needs; (iv) the incapacitated person's estate plan and the effect of the gifts, disclaimers, trusts, or transfers on the estate plan; (v) prior patterns of assistance or gifts to the proposed donees; (vi) the tax effect of the proposed gifts, disclaimers, trusts, or transfers; (vii) the effect of any transfer of assets or disclaimer on the establishment or retention of eligibility for medical assistance services; (viii) whether to require, during the lifetime of the incapacitated person, that the trustee of any trust created or funded pursuant to this section post bond, with or without surety, or provide an accounting as set forth in § 64.2-1305 ; and (ix) other factors that the court may deem relevant.
  4. A commissioner of accounts for the jurisdiction where a conservator qualifies may authorize the same gifts under the same circumstances as the circuit court may authorize under subsection C, except that (i) the total gifts authorized in a calendar year shall not exceed $25,000 and (ii) the commissioner shall report to the court his determination based upon consideration of clauses (i) through (ix) set forth in subsection C. The provisions of subsection B shall not apply to proceedings before the commissioner, but the commissioner shall give reasonable written notice of the scheduled hearing date to any person who would be substantially affected by the proceedings. The commissioner may provide notice to a minor by mail to the duly qualified guardian of the minor or, if none exists, a custodial parent of the minor who is also not the conservator.
  5. If the gifts by the conservator under clause (i) of subsection A do not exceed $150 to each donee in a calendar year and do not exceed a total of $750 in a calendar year, the conservator may make such gifts without a hearing under this section, the appointment of a guardian ad litem, or giving notice to any person. Prior to the making of such a gift, the conservator shall consider clauses (i) through (ix) set forth in subsection C and shall also find that the incapacitated person has shown a history of giving the same or a similar gift to a specific donee for the previous three years prior to the appointment of the conservator.
  6. The conservator may transfer assets of an incapacitated person or an incapacitated person's estate into an irrevocable trust where the transfer has been designated solely for burial of the incapacitated person or spouse of the incapacitated person in accordance with conditions set forth in subdivision A 2 of § 32.1-325 . The conservator also may contractually bind an incapacitated person or an incapacitated person's estate by executing a preneed funeral contract, described in Chapter 28 (§ 54.1-2800 et seq.) of Title 54.1, for the benefit of the incapacitated person.
  7. A conservator may exercise the incapacitated person's power to revoke or amend a trust or to withdraw or demand distribution of trust assets only with the approval of the court for good cause shown, unless the trust instrument expressly provides otherwise.

    (1997, c. 921, § 37.1-137.5; 2003, cc. 253, 528; 2005, c. 716, § 37.2-1024; 2012, c. 614; 2013, c. 523; 2014, c. 532.)

The 2013 amendments. - The 2013 amendment by c. 523 rewrote subsections A and B, added the subsection C designator and redesignated former subsections C and D as subsections E and F.

The 2014 amendments. - The 2014 amendment by c. 532 added subsection D and redesignated the remaining subsections accordingly; and in subsection E substituted "$150" for "$100" and "$750" for "$500."

§ 64.2-2024. Fiduciary to take possession of incapacitated person's estate; suits relative to estate; retaining estate for fiduciary's own debt.

Subject to any conditions or limitations set forth in the order appointing him, the fiduciary shall take possession of the incapacitated person's estate and may sue and be sued in respect to all claims or demands of every nature in favor of or against the incapacitated person and the incapacitated person's estate. The fiduciary shall have the same right of retaining for his own debt as an administrator would have.

(Code 1950, § 37-147; 1968, c. 477, § 37.1-139; 1980, c. 582; 2005, c. 716, § 37.2-1025; 2012, c. 614.)

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Power of guardian or committee to incur obligations for necessities. - While the general rule is that a guardian is without power to bind a ward or his estate by contract, a guardian or committee of an incompetent may incur obligations for necessaries, such as care and support of his ward, without the prior approval of the court. Carter v. Cavalier Cent. Bank & Trust Co., 223 Va. 571 , 292 S.E.2d 305 (1982).

Suits respecting the person or estate of an insane person must be brought by or against his committee, if there be one. Bird's Comm. v. Bird, 62 Va. (21 Gratt.) 712 (1872); Cole's Comm. v. Cole's Adm'r, 69 Va. (28 Gratt.) 365 (1877); Hinton v. Bland's Adm'r, 81 Va. 588 (1886); Sheltman v. Taylor's Comm., 116 Va. 762 , 82 S.E. 698 (1914).

The whole property of the insane person passes to the committee, and he can sue and be sued with respect to any lawful demand. Merchant's Adm'r v. Shry, 116 Va. 437 , 82 S.E. 106 (1914).

Where the right of maintenance, either entire or partial, in a trust fund is vested in an insane person, his committee is the proper person to sue for its preservation and protection. General Bd. of State Hosps. for Insane v. Robertson, 115 Va. 527 , 79 S.E. 1064 (1913).

But where there is no committee, or he has adverse interests, suit may be by next friend. - Where no committee has been appointed or he has been removed, or has interests adverse to the ward, a suit may be brought in the name of the ward by his next friend approved by the court. Bird's Comm. v. Bird, 62 Va. (21 Gratt.) 712 (1872), cited in General Bd. of State Hosps. for Insane v. Robertson, 115 Va. 527 , 79 S.E. 1064 (1913).

A bill by a lunatic, suing by his next friend, is bad on demurrer, if it fails to aver that the next friend appears as such by the appointment or leave of the court. The fact that the bill avers that the next friend is a child of the lunatic does not change the rule, as the court considers only the situation of the lunatic, and the next of kin are not considered as having any interest in his property. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

In determining the right to sue out an attachment on the ground of nonresidence of the defendant, the residence of the committee and not that of the lunatic governs. Sheltman v. Taylor's Comm., 116 Va. 762 , 82 S.E. 698 (1914).

§ 64.2-2025. Fiduciary to prosecute and defend actions involving incapacitated person.

Subject to any conditions or limitations set forth in the order appointing the fiduciary, the fiduciary shall prosecute or defend all actions or suits to which the incapacitated person is a party at the time of qualification of the fiduciary and all such actions or suits subsequently instituted after 10 days' notice of the pendency of the action or suit. Such notice shall be given by the clerk of the court in which the action or suit is pending.

(Code 1950, § 37-149; 1968, c. 477, § 37.1-141; 1976, c. 671; 1980, c. 582; 2005, c. 716, § 37.2-1026; 2012, c. 614.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.01 Introduction. Friend.

Virginia Forms (Matthew Bender). No. 1-105 Style and Commencement of Action by Guardian of Infant, et seq.; No. 1-207 Complaint - Negligence of Physician; No. 6-703 Petition for Appointment of Guardian and Conservator, et seq.

CASE NOTES

Bankruptcy petition. - Physically incapacitated debtor could not file a Chapter 7 bankruptcy petition through his wife by virtue of her power of attorney, but he could file by means of a court-appointed guardian having specific authorization to file bankruptcy on his behalf. In re Smith, 115 Bankr. 84 (Bankr. E.D. Va. 1990) (decided under prior law).

An individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another unless authorized by the statute to do so. W.S. Carnes, Inc. v. Board of Supvrs., 252 Va. 377 , 478 S.E.2d 295 (1996) (decided under prior law).

Ward may not sue in own name. - If a fiduciary has been appointed for a ward, this section requires that the fiduciary prosecute any suit to which the ward is a party and, in the absence of an exception, the ward does not have standing to sue in his or her own name. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906 (2000) (decided under prior law).

Medical malpractice suit. - Pursuant to § 64.2-2025 , plaintiff's parents, as co-guardians responsible for her personal affairs, had the authority and obligation to prosecute lawsuits on plaintiff's behalf. Therefore, plaintiff lacked standing to file a medical malpractice suit in her own name. Lopez-Rosario v. Habib, 291 Va. 293 , 785 S.E.2d 214 (2016).

CIRCUIT COURT OPINIONS

Erroeous caption in suit was subject to amendment and the complaint would not be dismissed. - Guardian for an incapacitated ward, who was suing a doctor, hospital, and psychiatric clinic on allegations that their negligence allowed the ward to be raped by a fellow patient, was allowed to amend the caption of the complaint because it was not technically in compliance with the requirements of former § 37.1-141 [now this section]. The defendants had argued the caption should have read that the guardian was bringing the complaint on behalf of the ward, not that the ward was bringing the action by and through the guardian; while the court agreed the caption may have been in technical error, it was not a fatal one and amendment instead of dismissal was the proper remedy considering the guardian had an obligation to bring the action. Jarrell v. Chippenham & Johnston-Willis Hosps., Inc., 64 Va. Cir. 401, 2004 Va. Cir. LEXIS 192 (Richmond 2004) (decided under prior law).

§ 64.2-2026. Surrender of incapacitated person's estate.

  1. If the incapacitated person is restored to capacity, the fiduciary shall surrender the incapacitated person's estate or that portion for which he is accountable to the incapacitated person.
  2. If the incapacitated person dies prior to being restored to capacity, the fiduciary shall surrender the real estate to the incapacitated person's heirs or devisees and the personal estate to his executors or administrators. If, at the time of the death of the incapacitated person, (i) the value of the personal estate in the custody of the fiduciary is $25,000 or less, (ii) a personal representative has not qualified within 60 days of the incapacitated person's death, and (iii) the fiduciary does not anticipate that anyone will qualify, the fiduciary may pay the balance of the incapacitated person's estate to the incapacitated person's surviving spouse or, if there is no surviving spouse, to the distributees of the incapacitated person or other persons entitled thereto, including any person or entity entitled to payment for funeral or burial services provided. The distribution shall be noted in the fiduciary's final accounting submitted to the commissioner of accounts.

    (Code 1950, § 37-151; 1968, c. 477, § 37.1-144; 1995, c. 344; 1997, c. 921; 2003, c. 195; 2005, c. 716, § 37.2-1027; 2012, c. 614; 2014, c. 532.)

The 2014 amendments. - The 2014 amendment by c. 532, in subsection B, substituted "$25,000" for "$15,000."

CASE NOTES

The committee must restore to his ward all property in his custody by virtue of his appointment as soon as the incompetency of the ward has been removed. Shands v. Shands, 175 Va. 156 , 7 S.E.2d 112 (1940) (decided under prior law).

This section recognizes that an incompetent may have made a will prior to his disability, and it imposes the duty upon the committee to surrender such estate to the devisees named therein if the ward dies before regaining sanity. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953) (decided under prior law).

§ 64.2-2027. Use of estate of incapacitated person in a state facility not limited by provisions relating to expenses.

Nothing in Article 2 (§ 37.2-715 et seq.) of Chapter 7 of Title 37.2 shall be construed to relieve the fiduciary of any individual receiving services in a state facility from paying to the state facility a sum for extra comforts or to make it unlawful for the fiduciary to make voluntary gifts that the fiduciary may deem conducive to the happiness and comfort of the individual.

(Code 1950, § 37-153; 1950, p. 924; 1968, c. 477, § 37.1-146; 2005, c. 716, § 37.2-1028; 2012, cc. 476, 507, 614.)

Editor's note. - Acts 2012, cc. 476 and 507 amended former § 37.2-1028, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 476 and 507 have been given effect in this section by substituting "individual receiving services" for "consumer" once and "individual" for "consumer" at the end.

§ 64.2-2028. Department of Behavioral Health and Developmental Services to be notified in certain cases.

In any suit or action for the appointment of a fiduciary who is to have the management and control of funds belonging to any person who has been admitted to any state facility, the Department of Behavioral Health and Developmental Services shall receive notice of the suit or action, and the clerk of any court in which the suit or action is pending shall notify the Commissioner of Behavioral Health and Developmental Services of that fact.

(Code 1950, § 37-153.1; 1950, p. 924; 1968, c. 477, § 37.1-147; 2005, c. 716, § 37.2-1029; 2012, c. 614.)

§ 64.2-2029. Application to guardians and conservators appointed pursuant to § 64.2-2115.

Except as otherwise provided in an order entered pursuant to § 64.2-2115 , a guardian or conservator appointed pursuant to § 64.2-2115 shall be subject to the provisions of §§ 64.2-2011 and 64.2-2012 and this article.

(2011, c. 518, § 37.2-1030; 2012, c. 614.)

Chapter 21. Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

General Provisions.

Jurisdiction.

Transfer of Guardianship or Conservatorship.

Registration and Recognition of Orders from Other States.

Miscellaneous Provisions.

Article 1. General Provisions.

§ 64.2-2100. Definitions.

In this chapter:

"Adult" means an individual who has attained 18 years of age.

"Conservator" means a person appointed by the court to administer the property of an adult, including a person appointed under Chapter 20 (§ 64.2-2000 et seq.).

"Conservatorship order" means an order appointing a conservator.

"Court" means a court of competent jurisdiction as determined by otherwise applicable Virginia law to establish, enforce, or modify a guardianship or conservatorship order or an entity authorized under the law of another state to establish, enforce, or modify a guardianship or conservatorship order.

"Guardian" means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under Chapter 20 (§ 64.2-2000 et seq.).

"Guardianship order" means an order appointing a guardian.

"Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.

"Incapacitated person" means an adult for whom a guardian has been appointed.

"Individually identifiable health information" means health information, including demographic information, collected from an individual that (i) is created or received by a health care provider, health plan, employer, or health care clearinghouse and (ii) identifies the individual, or there is a reasonable basis to believe that the information can be used to identify the individual, and relates to (a) the past, present, or future physical or mental health or condition of the individual, (b) the provision of health care to the individual, or (c) the past, present, or future payment for the provision of health care to the individual.

"Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding.

"Person," except in the term "incapacitated person" or "protected person," means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Protected health information" means individually identifiable health information that is (i) transmitted in electronic media, (ii) maintained in electronic media, or (iii) transmitted or maintained in any other form or medium. Protected health information excludes individually identifiable health information in (a) education records covered by the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g); (b) records of any student who is 18 years of age or older, or is attending a postsecondary school, that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and that are made, maintained, or used only in connection with the provision of treatment to the student and are not available to anyone other than persons providing such treatment, except that such records may be personally reviewed by a physician or other appropriate professional of the student's choice; and (c) employment records held, in its role as employer, by a health plan, health care clearinghouse, or health care provider that transmits health information in electronic form.

"Protected person" means an adult for whom a conservatorship order has been issued.

"Protective proceeding" means a judicial proceeding in which a conservatorship order is sought or has been issued.

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"Respondent" means an adult for whom a conservatorship order or the appointment of a guardian is sought.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(2011, c. 518, § 37.2-1032; 2012, c. 614.)

Compact cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 26-2B-101 et seq.

Alaska: Alaska Stat. § 13.27.010 et seq.

Arizona: A.R.S. 14-12101 et seq.

Arkansas: A.C.A. § 28-74-101 et seq.

Colorado: C.R.S. 15-14.5-101 et seq.

Delaware: 12 Del. C. § 39A-101 et seq.

District of Columbia: D.C. Code § 21-2401.01 et seq.

Hawaii: HRS § 551G-1 et seq.

Idaho: Idaho Code § 15-13-101 et seq.

Illinois: 755 ILCS 8/101 et seq.

Indiana: Burns Ind. Code Ann. § 29-3.5-1-1 et seq.

Iowa: Iowa Code § 633.699 et seq.

Kentucky: KRS § 387.810 et seq.

Louisiana: La. R.S. § 13:4251.101 et seq.

Maine: 18-A M.R.S. § 5-511 et seq.

Maryland: Md. ESTATES AND TRUSTS Code Ann. § 13.5-101 et seq.

Massachusetts: ALM GL ch. 190B, § 5A-101 et seq.

Minnesota: Minn. Stat. § 524.5-601 et seq.

Mississippi: Miss. Code Ann. § 93-14-101 et seq.

Missouri: § 475.501 R.S.Mo. et seq.

Montana: Mont. Code Anno. § 72-5-601 et seq.

Nebraska: R.R.S. Neb. § 30-3901 et seq.

Nevada: Nev. Rev. Stat. Ann. § 159.1991 et seq.

New Hampshire: Rev. Stat. Ann. 464-C:1 et seq.

New Mexico: N.M. Stat. Ann. § 45-5A-101 et seq.

New York: NY CLS Men Hyg § 83.01 et seq.

North Carolina: N.C. Gen. Stat. § 35B-1 et seq.

North Dakota: N.D. Cent. Code § 28-35-01 et seq.

Oklahoma: 30 Okl. St. § 3-301 et seq.

Oregon: ORS § 125.800 et seq.

Pennsylvania: 20 Pa.C.S. § 5901 et seq.

Rhode Island: R.I. Gen. Laws § 33-15.2-101 et seq.

South Dakota: S.D. Codified Laws § 29A-5A-101 et seq.

Tennessee: Tenn. Code Ann. § 34-8-101 et seq.

Utah: Utah Code Ann. § 75-5b-101 et seq.

Vermont: 14 V.S.A. § 3151 et seq.

Washington: Rev. Code Wash. (ARCW) § 11.90.010 et seq.

West Virginia: W. Va. Code § 44C-1-1 et seq.

Wyoming: Wyo. Stat. § 3-8-101 et seq.

Law review. - For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

Research References. - Virginia Forms (Matthew Bender). No. 6-702 Checklist for Petition for Appointment of Guardian or Conservator, et seq.

§ 64.2-2101. International application of chapter.

A court of the Commonwealth may treat a foreign country as if it were a state for the purpose of applying this article and Articles 2 (§ 64.2-2105 et seq.), 3 (§ 64.2-2114 et seq.), and 5 (§ 64.2-2119 et seq.).

(2011, c. 518, § 37.2-1033; 2012, c. 614.)

§ 64.2-2102. Communication between courts.

  1. A court of the Commonwealth may communicate with a court in another state concerning a proceeding arising under this chapter. The court may allow the parties to participate in the communication. Except as otherwise provided in subsection B, the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
  2. Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.

    (2011, c. 518, § 37.2-1034; 2012, c. 614.)

§ 64.2-2103. Cooperation between courts.

  1. In a guardianship or protective proceeding in the Commonwealth, a court in the Commonwealth may request the appropriate court of another state to do any of the following:
    1. Hold an evidentiary hearing;
    2. Order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
    3. Order that an evaluation or assessment be made of the respondent;
    4. Order any appropriate investigation of a person involved in a proceeding;
    5. Forward to the court of the Commonwealth a certified copy of the transcript or other record of a hearing under subdivision 1 or any other proceeding, any evidence otherwise produced under subdivision 2, and any evaluation or assessment prepared in compliance with an order under subdivision 3 or 4;
    6. Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for either court to make a determination, including the respondent or the incapacitated or protected person; and
    7. Issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information.
  2. If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection A, a court of the Commonwealth has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

    (2011, c. 518, § 37.2-1035; 2012, c. 614.)

§ 64.2-2104. Taking testimony in another state.

  1. In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in the Commonwealth for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
  2. In a guardianship or protective proceeding, a court in the Commonwealth may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. A court in the Commonwealth shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
  3. Documentary evidence transmitted from another state to a court of the Commonwealth by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.

    (2011, c. 518, § 37.2-1036; 2012, c. 614.)

Article 2. Jurisdiction.

§ 64.2-2105. Definitions; significant connection factors.

  1. In this article:

    "Emergency" means a circumstance that likely will result in substantial harm to a respondent's health, safety, or welfare, and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent's behalf.

    "Home state" means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a conservatorship order or the appointment of a guardian, or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition.

    "Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.

  2. In determining under § 64.2-2107 and subsection E of § 64.2-2114 whether a respondent has a significant connection with a particular state, the court shall consider:
    1. The location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;
    2. The length of time the respondent at any time was physically present in the state and the duration of any absence;
    3. The location of the respondent's property; and
    4. The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services. (2011, c. 518, § 37.2-1037; 2012, c. 614.)

§ 64.2-2106. Exclusive basis.

This article provides the exclusive jurisdictional basis for a court of the Commonwealth to appoint a guardian or issue a conservatorship order for an adult.

(2011, c. 518, § 37.2-1038; 2012, c. 614.)

§ 64.2-2107. Jurisdiction.

A court of the Commonwealth has jurisdiction to appoint a guardian or issue a conservatorship order for a respondent if:

  1. The Commonwealth is the respondent's home state;
  2. On the date the petition is filed, the Commonwealth is a significant-connection state and:
    1. The respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because the Commonwealth is a more appropriate forum; or
    2. The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order:
      1. A petition for an appointment or order is not filed in the respondent's home state;
      2. An objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and
      3. The court in the Commonwealth concludes that it is an appropriate forum under the factors set forth in § 64.2-2110 ;
  3. The Commonwealth does not have jurisdiction under either subdivision 1 or 2, the respondent's home state and all significant-connection states have declined to exercise jurisdiction because the Commonwealth is the more appropriate forum, and jurisdiction in the Commonwealth is consistent with the Constitutions of Virginia and the United States; or
  4. The requirements for special jurisdiction under § 64.2-2108 are met. (2011, c. 518, § 37.2-1039; 2012, c. 614.)

§ 64.2-2108. Special jurisdiction.

  1. A court of the Commonwealth lacking jurisdiction under the provisions of § 64.2-2107 has special jurisdiction to do any of the following:
    1. Appoint a guardian in an emergency for a term not exceeding 90 days for a respondent who is physically present in the Commonwealth;
    2. Issue a conservatorship order with respect to real or tangible personal property located in the Commonwealth; or
    3. Appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to § 64.2-2114 .
  2. If a petition for the appointment of a guardian in an emergency is brought in the Commonwealth and the Commonwealth was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.

    (2011, c. 518, § 37.2-1040; 2012, c. 614.)

§ 64.2-2109. Exclusive and continuing jurisdiction.

Except as otherwise provided in § 64.2-2108 , a court that has appointed a guardian or issued a conservatorship order consistent with this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.

(2011, c. 518, § 37.2-1041; 2012, c. 614.)

§ 64.2-2110. Appropriate forum.

  1. A court of the Commonwealth having jurisdiction under § 64.2-2107 to appoint a guardian or issue a conservatorship order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
  2. If a court of the Commonwealth declines to exercise its jurisdiction under subsection A, it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a conservatorship order be filed promptly in another state.
  3. In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
    1. Any expressed preference of the respondent;
    2. Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;
    3. The length of time the respondent was physically present in or was a legal resident of the Commonwealth or another state;
    4. The distance of the respondent from the court in each state;
    5. The financial circumstances of the respondent's estate;
    6. The nature and location of the evidence;
    7. The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
    8. The familiarity of the court of each state with the facts and issues in the proceeding; and
    9. If an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.

      (2011, c. 518, § 37.2-1042; 2012, c. 614.)

§ 64.2-2111. Jurisdiction declined by reason of conduct.

  1. If at any time a court of the Commonwealth determines that it acquired jurisdiction to appoint a guardian or issue a conservatorship order because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court may:
    1. Decline to exercise jurisdiction;
    2. Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or to prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a conservatorship order is filed in a court of another state having jurisdiction; or
    3. Continue to exercise jurisdiction after considering:
      1. The extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;
      2. Whether it is a more appropriate forum than the court of any other state under the factors set forth in subsection C of § 64.2-2110 ; and
      3. Whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of § 64.2-2107 .
  2. If a court of the Commonwealth determines that it acquired jurisdiction to appoint a guardian or issue a conservatorship order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against the Commonwealth or a governmental subdivision, agency, or instrumentality of the Commonwealth unless authorized by law other than this chapter.

    (2011, c. 518, § 37.2-1043; 2012, c. 614.)

§ 64.2-2112. Notice of proceeding.

If a petition for the appointment of a guardian or issuance of a conservatorship order is brought in the Commonwealth and the Commonwealth was not the respondent's home state on the date the petition was filed, in addition to complying with the notice requirements of the Commonwealth, notice of the petition shall be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the respondent's home state. The notice shall be given in the same manner as notice is required to be given in the Commonwealth.

(2011, c. 518, § 37.2-1044; 2012, c. 614.)

§ 64.2-2113. Proceedings in more than one state.

Except for a petition for the appointment of a guardian in an emergency or issuance of a conservatorship order limited to property located in the Commonwealth under subdivision A 1 or A 2 of § 64.2-2108 , if a petition for the appointment of a guardian or issuance of a conservatorship order is filed in the Commonwealth and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

  1. If the court in the Commonwealth has jurisdiction under § 64.2-2107 , it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to § 64.2-2107 before the appointment or issuance of the order.
  2. If the court in the Commonwealth does not have jurisdiction under § 64.2-2107 , whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in the Commonwealth shall dismiss the petition unless the court in the other state determines that the court in the Commonwealth is a more appropriate forum. (2011, c. 518, § 37.2-1045; 2012, c. 614.)

Article 3. Transfer of Guardianship or Conservatorship.

§ 64.2-2114. Transfer of guardianship or conservatorship to another state.

  1. A guardian or conservator appointed in the Commonwealth may petition the court to transfer the guardianship or conservatorship to another state.
  2. Notice of a petition under subsection A shall be given to the persons that would be entitled to notice of a petition in the Commonwealth for the appointment of a guardian or conservator.
  3. On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection A.
  4. The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:
    1. The incapacitated person is physically present in or is reasonably expected to move permanently to the other state;
    2. An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and
    3. Plans for care and services for the incapacitated person in the other state are reasonable and sufficient.
  5. The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
    1. The protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in subsection B of § 64.2-2105 ;
    2. An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and
    3. Adequate arrangements will be made for management of the protected person's property.
  6. The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
    1. A provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to § 64.2-2115 ; and
    2. The documents required to terminate a guardianship or conservatorship in the Commonwealth. (2011, c. 518, § 37.2-1046; 2012, c. 614.)

§ 64.2-2115. Accepting guardianship or conservatorship transferred from another state.

  1. To confirm transfer of a guardianship or conservatorship transferred to the Commonwealth under provisions similar to § 64.2-2114 , the guardian or conservator shall petition the court in the Commonwealth to accept the guardianship or conservatorship. The petition shall include a certified copy of the other state's provisional order of transfer.
  2. Notice of a petition under subsection A shall be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a conservatorship order in both the transferring state and the Commonwealth. The notice shall be given in the same manner as notice is required to be given in the Commonwealth.
  3. On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection A.
  4. The court shall issue an order provisionally granting a petition filed under subsection A unless:
    1. An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
    2. The guardian or conservator is ineligible for appointment in the Commonwealth.
  5. The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in the Commonwealth upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to § 64.2-2114 transferring the proceeding to the Commonwealth. The final order accepting transfer of a guardianship or conservatorship shall contain a determination of whether the guardianship or conservatorship needs to be modified to conform to the laws of the Commonwealth.
  6. In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator.
  7. The denial by a court of the Commonwealth of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in the Commonwealth under Chapter 20 (§ 64.2-2000 et seq.) if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer. (2011, c. 518, § 37.2-1047; 2012, c. 614.)

Article 4. Registration and Recognition of Orders from Other States.

§ 64.2-2116. Registration of guardianship orders.

If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in the Commonwealth, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in the Commonwealth by filing as a foreign judgment in a court, in any appropriate county or city of the Commonwealth, certified copies of the order and letters of office.

(2011, c. 518, § 37.2-1048; 2012, c. 614.)

§ 64.2-2117. Registration of conservatorship orders.

If a conservator has been appointed in another state and a petition for a conservatorship order is not pending in the Commonwealth, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the conservatorship order in the Commonwealth by filing as a foreign judgment in a court of the Commonwealth, in any county or city in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond.

(2011, c. 518, § 37.2-1049; 2012, c. 614.)

§ 64.2-2118. Effect of registration.

  1. Upon registration of a guardianship or conservatorship order from another state, the guardian or conservator may exercise in the Commonwealth all powers authorized in the order of appointment except as prohibited under the laws of the Commonwealth, including maintaining actions and proceedings in the Commonwealth and, if the guardian or conservator is not a resident of the Commonwealth, subject to any conditions imposed upon nonresident parties.
  2. A court of the Commonwealth may grant any relief available under this chapter and other laws of the Commonwealth to enforce a registered order.

    (2011, c. 518, § 37.2-1050; 2012, c. 614.)

Article 5. Miscellaneous Provisions.

§ 64.2-2119. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(2011, c. 518, § 37.2-1051; 2012, c. 614.)

§ 64.2-2120. Relation to electronic signatures in global and national commerce act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.), but does not modify, limit, or supersede § 101(c) of that act (15 U.S.C. § 7001(c)) or authorize electronic delivery of any of the notices described in § 103(b) of that act (15 U.S.C. § 7003(b)).

(2011, c. 518, § 37.2-1052; 2012, c. 614.)

SUBTITLE V. PROVISIONS APPLICABLE TO PROBATE AND NONPROBATE TRANSFERS.

Chapter 22. Uniform Simultaneous Death Act.

Sec.

§ 64.2-2200. Definitions.

As used in this chapter:

"Co-owners with right of survivorship" includes parties to a joint account, joint tenants, tenants by the entireties, and other co-owners of property held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.

"Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), or pension, profit-sharing, retirement, or similar benefit plan; instrument creating or exercising a power of appointment or a power of attorney; or a donative, appointive, or nominative instrument of any other type.

"Payor" means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.

(1994, c. 475, § 64.1-104.1; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 43-7-1 to 47-7-8.

Alaska: Alaska Stat. § 13.12.702.

Arizona: A.R.S. § 14-2702.

Arkansas: A.C.A. §§ 28-10-201 to 28-10-212.

District of Columbia: D.C. Code §§ 19-501 to 19-509.

Georgia: O.C.G.A. §§ 53-10-1 to 53-10-6.

Guam: 15 Guam Code Ann. §§ 1301 to 1309.

Idaho: Idaho Code § 15-2-613.

Indiana: Burns Ind. Code Ann. §§ 29-2-14-1 through 29-2-14-8.

Iowa: Iowa Code §§ 633.523 through 635.529.

Kansas: K.S.A. §§ 58-708 to 58-718.

Kentucky: K.R.S. §§ 397.1001 to 397.1009.

Maine: 18 A.M.R.S. § 2-805.

Maryland: Md. Courts and Judicial Proceedings Code Ann. §§ 10-801 through 10-807.

Mississippi: Miss. Code Ann. §§ 91-3-1 through 91-3-15.

Montana: Mont. Code Anno. § 72-2-712.

Nebraska: R.R.S. Neb. §§ 30-121 through 30-128.

Nevada: Nev. Rev. Stat. Ann. §§ 135.010 through 135.090.

New Hampshire: R.S.A. §§ 563:1 to 563:11.

New Jersey: N.J. Stat. §§ 3B:6-1 through 3B:6-7.

Ohio: O.R.C. Ann. § 2105.31 et seq.

Oklahoma: 58 Okl. St. §§ 1001 to 1008.

Oregon: O.R.S. §§ 112.570 to 112.590.

Rhode Island: R.I. Gen. Laws §§ 33-2-1 through 33-2-9.

South Carolina: S.C. Code Ann. 62-1-501 though 62-1-508.

Tennessee: Tenn. Code Ann. §§ 31-3-101 through 31-3-105.

Vermont: 14 V.S.A. §§ 621 through 627.

Washington: Rev. Code Wash. § 11.05A.010 et seq.

West Virginia: W. Va. Code §§ 42-5-1 to 42-5-10.

Wyoming: Wyo. Stat. §§ 2-13-101 through 2-13-107.

Law review. - For 1994 survey of Virginia wills, trusts, and estates law, see 28 U. Rich. L. Rev. 1145 (1994).

For annual survey of Virginia law article, "Wills, Trusts, and Estates," see 47 U. Rich. L. Rev. 343 (2012).

Research References. - Virginia Forms (Matthew Bender). No. 15-202 Identification and Definitions; No. 15-206 Survivorship.

§ 64.2-2201. Requirement of survival by 120 hours for statutory rights.

Except as provided in § 64.2-2205 , if the (i) title to property, (ii) devolution of property, or (iii) right to elect an interest in property, an augmented estate share or exempt property, or homestead or family allowance depends upon an individual surviving another, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other. However, this section does not apply if its application would result in a taking of an intestate estate by the Commonwealth.

(1994, c. 475, § 64.1-104.2; 2012, c. 614.)

§ 64.2-2202. Requirement of survival by 120 hours under donative dispositions in governing instruments.

Except as provided in § 64.2-2205 for purposes of a donative provision of a governing instrument, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is deemed to have predeceased the event.

(1994, c. 475, § 64.1-104.3; 2012, c. 614.)

§ 64.2-2203. Co-owners with right of survivorship; requirement of survival by 120 hours.

Except as provided in § 64.2-2205 , if (i) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours and (ii) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners.

(1994, c. 475, § 64.1-104.4; 2012, c. 614.)

§ 64.2-2204. Evidence of death or status.

In addition to otherwise applicable rules of evidence, the following rules relating to a determination of death and status shall apply:

  1. Death occurs when an individual is determined to be dead in accordance with the provisions of § 54.1-2972 or Chapter 23 (§ 64.2-2300 et seq.).
  2. A certified or authenticated copy of a death certificate purporting to be issued by a governmental official or agency, domestic or foreign, of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent.
  3. A certified or authenticated copy of any record or report purporting to be issued by a governmental official or agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status of the individual and of the dates, times, identities, circumstances, and places disclosed by the record or report.
  4. In the absence of prima facie evidence of death under subdivision 2 or 3, the facts of death may be established by clear and convincing evidence, including circumstantial evidence.
  5. In the absence of evidence disputing the time of death stated on a document described in subdivision 2 or 3, such a document that states a time of death 120 hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by 120 hours.

    (1994, c. 475, § 64.1-104.5; 2012, c. 614.)

§ 64.2-2205. Exceptions.

Survival by 120 hours is not required if:

  1. The governing instrument contains language dealing explicitly with (i) simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case, (ii) deaths under circumstances where the order of death cannot be established by proof, or (iii) the marital deduction, or the governing instrument contains a provision to or for the benefit of the decedent's spouse where it is the decedent's intent, as manifested from the governing instrument or external evidence, that the decedent's estate receive the benefit of the federal estate tax marital deduction;
  2. The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event, including the death of another individual, for a specified period; but survival of the event, another individual, or the specified period shall be established by clear and convincing evidence;
  3. The imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under the Uniform Statutory Rule Against Perpetuities (§§ 55.1-124 through 55.1-129 ); but survival shall be established by clear and convincing evidence; or
  4. The application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival shall be established by clear and convincing evidence.

    (1994, c. 475, § 64.1-104.6; 2012, c. 614.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-124 through 55.1-129 " for "55-12.1 through 55-12.6."

§ 64.2-2206. Protection of payors, bona fide purchasers, and other third parties; personal liability of recipient.

  1. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this chapter. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this chapter. Written notice of a claimed lack of entitlement shall be mailed to the main office or home of the payor or other third party, or to the registered agent of either, by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as process in a civil action. Upon receipt of the written notice of a claimed lack of entitlement, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates as provided in § 64.2-443 or 64.2-502 . The court shall hold the funds or item of property and, upon its determination under this chapter, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
  2. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this chapter to return the payment, item of property, or benefit, nor liable under this chapter for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this chapter, is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this chapter.

    If this chapter or any part of this chapter is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this chapter, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this chapter or part of this chapter not preempted.

    (1994, c. 475, § 64.1-104.7; 2012, c. 614.)

§ 64.2-2207. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

(1994, c. 475, § 64.1-104.8; 2012, c. 614.)

§ 64.2-2208. Effective date.

An act done before July 1, 1994, in any proceeding and any accrued right is not impaired by this chapter. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 1994, the provisions remain in force with respect to that right.

Any rule of construction or presumption provided in this chapter applies to instruments executed and multiple-party accounts opened before July 1, 1994, unless there is a clear indication of a contrary intent.

(1994, c. 475, § 64.1-104.9; 2012, c. 614.)

Chapter 23. Persons Presumed Dead.

Sec.

§ 64.2-2300. Presumption of death from absence or disappearance; when applicable.

    1. Any person who is a resident of the Commonwealth shall be presumed to be dead if such person: A. 1.  Any person who is a resident of the Commonwealth shall be presumed to be dead if such person:
      1. Leaves and does not return to the Commonwealth for seven successive years and is not heard from;
      2. Disappears for seven successive years and is not heard from; or
      3. Disappears in a foreign country, his body has not been found, and he is not known to be alive, and a report of presumptive death by the Department of State of the United States has been issued.
    2. Any person who is not a resident of the Commonwealth, but who owns real or personal property located within the Commonwealth, shall be presumed to be dead if such person disappears for seven successive years from the place of his residence outside of the Commonwealth and is not heard from.
    3. The presumption created by this subsection shall be applicable in any action where the person's death is in question, unless proof is offered that the person was alive within the time specified or, in the case of a presumed death in a foreign country, at any time following the person's disappearance, whether before or after the report of presumptive death was issued.
  1. The fact that any person was exposed to a specific peril of death may be a sufficient basis for determining at any time after the exposure that the person is presumed to have died less than seven years after the person was last heard from.
  2. Any person on board any ship or vessel underway on the high seas who disappears from such ship or vessel, or any person on board an aircraft that disappears at sea, who is not known to be alive and whose body has not been found or identified prior to a hearing of a board of inquiry as to such disappearance, shall be presumed to be dead upon the findings of a board of inquiry that the person is presumed dead, or six months after the date of such disappearance, whichever occurs first.
  3. Before any final order or decree is entered in a cause under subsection A, B, or C in favor of the alleged heirs, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the presumed decedent, or persons claiming by, through, or under them, or any of them, proceedings shall be held in conformity with §§ 64.2-2303 through 64.2-2306 .
  4. The heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the person presumed dead under subsection A, B, or C may be made parties defendant to proceedings in respect to real or personal property in which the presumed decedent may have an undivided interest by order of publication or other process as provided by law. The proceedings shall not be stayed in respect to the division, sale, or other disposition of the entire property. The provisions of subsection D shall be applicable only to the portion of the property set apart or to the share of the proceeds to which such person would be entitled.

    (Code 1950, § 64-101; 1954, c. 430; 1968, c. 656, § 64.1-105; 1989, c. 153; 1996, cc. 675, 684; 2003, c. 254; 2006, c. 351; 2012, c. 614.)

Law review. - For survey of Virginia law on evidence for the year 1973-1974, see 60 Va. L. Rev. 1543 (1974).

For survey on wills, trusts, and estates in Virginia for 1989, see 23 U. Rich. L. Rev. 859 (1989).

For an article, "Wills, Trusts, and Estates," see 31 U. Rich. L. Rev. 1249 (1997).

For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).

For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

Editor's note. - The cases below were decided under former Title 64.1 and prior law.

CASE NOTES

History of section. - See Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935).

This section is simply declaratory of the rules of the common law previously extant in this State. Evans v. Stewart, 81 Va. 724 (1886).

It has been construed a number of times by the highest court of the State and a federal court is bound by that construction. Metropolitan Life Ins. Co. v. Goodwin, 92 F.2d 274 (4th Cir. 1937).

That part of this section after the first sentence does not apply to divorce cases but manifestly applies only where an order or decree is sought "in favor of the alleged heirs, devisees or legatees of the supposed decedent or persons claiming by, through or under them." Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935).

Thus, where a wife procured a divorce a vinculo from her first husband, and her second husband sued for a divorce on the ground that the wife remarried within six months after she obtained the divorce a vinculo from her first husband, it was held that the evidence was sufficient to raise a presumption based on seven years' absence that the first husband was dead at the time the divorce decree was entered rendering the second marriage valid. Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935).

Presumption of the continued existence of a person remains in full force and effect until the passage of the seven-year period prescribed in this section and in the absence of credible evidence to the contrary, is conclusive. Ashby v. Red Jacket Coal Corp., 185 Va. 202 , 38 S.E.2d 436 (1946).

There is no presumption of death at any time within the seven years, or that a party is alive at any particular time within that period, and the burden is on the party asserting such a claim to prove it by evidence satisfactory to the jury. Security Bank v. Equitable Life Assurance Soc'y, 112 Va. 462 , 71 S.E. 647 (1911); Barraud v. Barraud, 19 Va. L. Reg. 616 (1913).

Death is presumed to be the result of material dissolution rather than of accidental injury. General Accident, Fire & Life Assurance Corp. v. Murray, 120 Va. 115 , 90 S.E. 620 (1916).

A party is as much entitled to the benefit of a presumption of law as he would be to have any other appropriate legal rule applied to the facts of his case; and, where the facts which are required to give rise to the presumption are proven, the presumption must be applied (the presumed fact must be assumed to have been proven) until evidence sufficient to overcome the presumption and prove the contrary shall have been introduced. Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935).

Sufficient evidence to justify presumption. - Where person left home after being arrested on a liquor charge and remained more than seven years, the evidence was such as to justify the jury in finding that the presumption of the insured's death was conclusive. Metropolitan Life Ins. Co. v. Goodwin, 92 F.2d 274 (4th Cir. 1937).

Presumption rebuttable. - The statutory presumption of death after an absence of seven years created by this section is rebuttable. Barraud v. Barraud, 19 Va. L. Reg. 616 (1913).

To strengthen or rebut the presumption of death created by the statute, the facts and circumstances connected with the disappearance of the absent party are admissible in evidence, since the strength of the presumption lies, not so much in the facts of his absence for the statutory period as in the cogency of the circumstances of his disappearance; such as that he was a fugitive from justice, or under a cloud as to his character, or any other facts or circumstances tending to explain his going, his motive in remaining away, or his failure to communicate with his home. Barraud v. Barraud, 19 Va. L. Reg. 616 (1913).

The presumption of death after seven years' absence is a true rebuttable presumption of law as distinguished from a presumption of fact (which is in reality merely an inference of a fact from facts proven) and from an administrative assumption of fact. Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935).

A rebuttable presumption of law is a provisional procedural assumption of a fact which is prescribed by a rule of the substantive law. It is a rule of the substantive law declaring that for procedural purposes a certain prima facie probative force will and shall, until evidence sufficient to prove the contrary is introduced, be provisionally attached to a given state of facts. That is, a certain inference shall be drawn from it, unless and until evidence sufficient to prove the contrary has been introduced. Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935).

Whether evidence is sufficient to rebut presumption is question for jury. - When the presumption of death is sought to be rebutted by evidence as to the circumstances under which the missing man disappeared and under which no news has been heard of him, the question whether such evidence is sufficient to rebut the presumption of death prescribed by this section is a question of fact for the jury. Metropolitan Life Ins. Co. v. Goodwin, 92 F.2d 274 (4th Cir. 1937).

Grant of letters of administration on estate of a living person as if he were dead is absolutely void, and if it be conceded that the legislature intended by this section to authorize the courts to grant administration upon the estate of a person who was once a resident of the State and has been absent therefrom and unheard from for more than seven years, irrespective of his death, the statute is a plain violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. A statute which authorizes the taking of an absentee's property and administering it when he is alive, without his knowledge or consent, and in a proceeding to which he is not a party, and of which he has no notice, is a clear violation of the "due process" clause of said amendment. Selden v. Kennedy, 104 Va. 826 , 52 S.E. 635 (1906).

§ 64.2-2301. Distribution of fund when presumption of death not applicable.

  1. In any civil action wherein any estate or fund is to be distributed, if the interest of any person to the estate or fund depends upon his having been alive at a particular time and it is not known and cannot be shown by the exercise of reasonable diligence whether such person was alive at that time, and if the legal presumption of death does not apply, the court may enter an order distributing the estate or fund to those who would be otherwise entitled thereto if it were shown that such person was dead at such particular time.
  2. Before any distribution is made pursuant to subsection A, the court shall require that, until the person is determined to be dead in accordance with § 64.2-2300 , the heir at law, devisee, next of kin, legatee, beneficiary, survivor, or other successor in interest shall give a refunding bond with surety in such form as the court directs upon condition to account for the estate or fund to any person who may establish title thereto adverse to that of such heir at law, devisee, next of kin, legatee, beneficiary, survivor, or other successor in interest.
  3. No motion shall be made hereunder except after reasonable notice to all parties upon whom service may be had. Nothing in this section shall be construed to affect in any way any requirement of law as to service of process.

    (Code 1950, § 64-102; 1968, c. 656, § 64.1-106; 1996, cc. 675, 684; 2005, c. 681; 2006, c. 351; 2012, c. 614.)

§ 64.2-2302. Appointment of curator when presumption of death not applicable.

A circuit court, upon good cause shown, may appoint in accordance with the provisions of § 64.2-451 a curator for the estate of a resident of the Commonwealth in a case where the legal presumption of death is not applicable if (i) at least one year has expired since the date that the resident was last heard from and (ii) it is not known and cannot with reasonable diligence be shown whether such person is alive. In determining whether good cause exists, the court shall consider the existence and efficacy of any durable power of attorney.

(2006, c. 351, § 64.1-106.1; 2012, c. 614.)

Law review. - For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

§ 64.2-2303. Persons presumed dead; authority of clerk.

A clerk of the circuit court has no authority to (i) admit to probate a will of a person presumed to be dead, (ii) grant administration upon the estate of a person presumed to be dead, or (iii) appoint a curator pursuant to § 64.2-2302 .

(Code 1950, § 64-103; 1968, c. 656, § 64.1-107; 1996, cc. 675, 684; 2006, c. 351; 2012, c. 614.)

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 12.

CASE NOTES

Discussion as to presumption of death from seven years' absence. - See Simpson v. Simpson, 162 Va. 621 , 175 S.E. 320 , 94 A.L.R. 909 (1934), cert. denied, 295 U.S. 735, 55 S. Ct. 648, 79 L. Ed. 1683 (1935) (decided under prior law).

§ 64.2-2304. Petition seeking determination of death; hearing; evidence; notice.

  1. Whenever a petition is filed seeking a judicial determination that a person is dead, the court that would have jurisdiction over the person's probate estate if such person were dead shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration of such absence. The court shall require that notice of the filing of the petition be published once a week for four successive weeks in a newspaper published in the county or city where the petition is filed, and the notice shall include the date of the hearing, which shall be at least two weeks after the last publication.
  2. At the hearing, the court shall hear all admissible evidence offered for the purpose of determining whether or not the presumption of death is applicable. If the court determines that the legal presumption of death is applicable, the court shall enter an order in accordance with § 64.2-2305 , provided, however, that if the evidence shows that the length of a presumed decedent's absence is less than 10 years, the court shall immediately require notice of the order to be published once a week for two successive weeks in a newspaper published in the county or city where the petition is filed and, when practicable, in a newspaper published at or near the place where the presumed decedent had his residence when last heard from. The notice shall require the presumed decedent, if alive, or any person for him, produce to the court satisfactory evidence that the presumed decedent is alive within two weeks from the date of the last publication. If no satisfactory evidence is produced within this period, the court shall enter an order in accordance with § 64.2-2305 .
  3. For the purposes of subsections A and B, if there is no newspaper published in the county or city in which the publication required may be had, then the court shall order that the required notice be published in a newspaper having general circulation in such county or city. The cost of the publication pursuant to this section shall be paid by the petitioner.

    (Code 1950, §§ 64-104, 64-106; 1968, c. 656, §§ 64.1-108, 64.1-110; 1996, cc. 352, 675, 684; 2006, c. 351; 2012, c. 614.)

Law review. - For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

§ 64.2-2305. Entry of order that presumption of death is applicable; effect.

  1. If, after the hearing conducted pursuant to § 64.2-2304 and any subsequent publication required pursuant to that section, the court determines that the presumption of death is applicable, the court shall enter an order determining that the presumed decedent is in fact dead. Upon entry of such order, the court shall proceed to admit any will to probate, issue letters of administration to the party entitled thereto, or order that the claim of the heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the presumed decedent be established. If the order is subsequently revoked pursuant to § 64.2-2307 , all acts done in pursuance of or in reliance on the order shall be as valid as if the presumed decedent were actually dead.
  2. The court's order determining a person to be dead shall state the person's date of death to be:
    1. The date of the expiration of the seven-year period in a proceeding governed by subsection A of § 64.2-2300 , except that in a proceeding governed by subdivision A 1 c of § 64.2-2300 it shall be the date of the Department of State's issuance of a report of presumptive death unless the evidence shows the likelihood of death at an earlier date;
    2. The date of the person's exposure to the specific peril of death in a proceeding governed by subsection B of § 64.2-2300 ; or
    3. The date of the person's disappearance in a proceeding governed by subsection C of § 64.2-2300.
  3. A certified copy of the court's order determining that the presumed decedent is in fact dead shall be accepted as proof of death in all situations in which a certificate of death issued by the State Registrar of Vital Records of the Virginia Department of Health would have been accepted as such proof.

    (Code 1950, § 64-107; 1968, c. 656, § 64.1-111; 2006, c. 351; 2012, c. 614.)

§ 64.2-2306. Distribution of property; refunding bond.

Before any distribution of the proceeds of the estate of a person determined to be dead pursuant to this chapter or the payment or transfer of any of his other property is made, and before the sale of any real or personal property passing in kind by persons claiming such property as heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest, the persons entitled to receive such proceeds or property in kind shall give a refunding bond without surety upon condition that if the person determined to be dead is in fact alive at that time, they will respectively refund to such person the proceeds or property, or proceeds of such property, received by each on demand, without interest thereon.

(Code 1950, § 64-108; 1962, c. 115; 1968, c. 656, § 64.1-112; 1996, cc. 675, 684; 2006, c. 351; 2012, c. 614.)

Law review. - For 2006 survey article, "Wills, Trusts, and Estates," see 41 U. Rich. L. Rev. 321 (2006).

§ 64.2-2307. Revocation of determination of death; effect on previous acts; title of purchasers.

The court, after reasonable notice to the parties interested, may revoke a determination of death at any time based on satisfactory evidence that the presumed decedent is in fact alive. If a determination of death is revoked, all powers of any personal representative shall terminate; however, if the personal representative has complied with the provisions of § 64.2-2306 , all receipts and disbursements of assets and other acts previously done by the personal representative and the title of bona fide purchasers of property under sales made by the personal representative or by any heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest shall remain as valid as if no revocation had been made. Any personal representative shall settle his account and all assets remaining in his possession or in the possession of such heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest, and the proceeds of such assets, shall be transferred to the person who had been determined to be dead or to his duly authorized agent or attorney. Nothing in this section shall validate the title of any person to any money or property received as an heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest of such presumed decedent, and such money or property may be recovered from them as if the order determining death had not been granted.

(Code 1950, § 64-109; 1968, c. 656, § 64.1-113; 2006, c. 351; 2012, c. 614.)

§ 64.2-2308. Substitution of presumed decedent in pending actions; reopening of judgments; effect of judgments.

  1. After revocation of the order determining death, the person who had been determined to be dead may:
    1. Be substituted as plaintiff in all actions previously brought by his personal representative, whether prosecuted to judgment or otherwise, on suggestion filed by such person; and
    2. Be substituted as defendant in all actions previously brought against his personal representative, on suggestion filed by such person or the plaintiff to the action. If such person is substituted as defendant, he shall not be compelled to go to trial in less than three months from the time that such suggestion is filed.
  2. Upon application by the presumed decedent, judgments recovered against the personal representative before revocation of the order determining death may be opened. Such application by the presumed decedent shall be made within three months from the date of the revocation and shall be supported by an affidavit that specifically denies the cause of the action, in whole or in part, or specifically alleges the existence of facts that would constitute a valid defense. However, if no application is made during the three-month period, or, if an application is made but the facts exhibited are adjudged to be insufficient to constitute a defense, the judgment shall be conclusive for all intents. After the substitution of the presumed decedent as defendant to any judgment pursuant to subdivision A 2, the judgment shall become a lien upon his real estate and shall so continue as other judgments.

    (Code 1950, § 64-110; 1968, c. 656, § 64.1-114; 1971, Ex. Sess., c. 156; 2006, c. 351; 2012, c. 614.)

§ 64.2-2309. Costs.

The costs attendant to the issuing of an order determining death or the revocation of such order shall be paid out of the estate of the presumed decedent. If the petition for the issuance or revocation of an order determining death is not granted, the costs shall be paid by the petitioner.

(Code 1950, § 64-111; 1968, c. 656, § 64.1-115; 2006, c. 351; 2012, c. 614.)

Chapter 24. Conservators of Property of Absentees.

Sec.

§ 64.2-2400. Appointment of conservator; jurisdiction and procedure.

  1. For purposes of this chapter:

    "Absentee" means a person who is a resident of the Commonwealth or a nonresident of the Commonwealth who has an interest in any property located within the Commonwealth who (i) disappears or absents himself from his usual place of residence, (ii) is reported or listed as missing or missing in action, or (iii) is interned in a neutral country or captured by an enemy country.

  2. Upon the filing of a petition for the appointment of a conservator, the court having probate jurisdiction in the city or county of the absentee's legal residence or, if such absentee is a nonresident, the court having probate jurisdiction in the city or county where the property is located, may appoint, upon good cause shown, a conservator to take charge of the absentee's estate. If the absentee is a nonresident, the petition shall allege the facts and show the necessity for providing for the care of the property of the absentee. The petition may be filed by any person who would have an interest in the property of the absentee were he deceased, including a creditor of the absentee, or made on the court's own motion, and after notice is given to the heirs and next of kin of such absentee, as provided by law.

    (1944, p. 361; Michie Suppl. 1946, § 5400b; Code 1950, § 26-68; 2012, c. 614.)

§ 64.2-2401. Bond; orders as to management of estate; support of dependents.

The court shall require that any conservator appointed pursuant to § 64.2-2400 post a bond in an amount deemed sufficient by the court. The court shall also enter any orders it deems necessary (i) directing the conservator in the management, operation, and control of the estate and (ii) requiring the conservator to make ample and suitable provisions out of the estate in his possession, subject to the rights of creditors, for the support of the absentee's spouse and minor children, as well as any other person dependent upon the absentee for support and maintenance. The court shall require the conservator to make reports from time to time as the court may deem expedient.

(1944, p. 362; Michie Suppl. 1946, § 5400c; Code 1950, § 26-69; 2012, c. 614; 2020, c. 900.)

The 2020 amendments. - The 2020 amendment by c. 900, substituted "spouse" for "wife" in the penultimate sentence, clause (ii).

§ 64.2-2402. Proceedings to sell property of absentee after failure to locate heirs.

Any duly appointed conservator of the estate of a person who is known to be dead or who is presumed to be dead pursuant to Chapter 23 (§ 64.2-2300 et seq.), after making a diligent but unsuccessful effort to locate the heirs of such person for a period of at least two years after the person's death became known or presumed, may petition the court having jurisdiction over real property owned by the decedent for permission to sell such property. Proceedings under this section shall conform as nearly as practicable to proceedings relating to judicial sales of real property owned by an infant. The conservator shall account for the proceeds of the sale, and the net proceeds of the sale, after disbursement of costs, shall be conserved in such manner as the court deems proper.

(1954, c. 387, § 26-68.1; 1996, cc. 675, 684; 2012, c. 614.)

§ 64.2-2403. Termination of conservatorship.

At any time upon petition of the absentee, or upon the petition of a duly constituted attorney-in-fact of the absentee, if the court is of the opinion that such power of attorney is valid, the court shall terminate the conservatorship and shall transfer all property held for such absentee to him, or to such attorney-in-fact. However, if the court finds that during the pendency of the conservatorship the absentee has died, and an administrator or executor has been appointed for the absentee's estate, the court shall order the conservator to settle the accounts of his transactions before the court and shall direct the payment or transfer of such estate then remaining to the administrator or executor.

(1944, p. 362; Michie Suppl. 1946, § 5400d; Code 1950, § 26-70; 2012, c. 614.)

§ 64.2-2404. Expenses and compensation.

The court may allow to such conservator such expenses and compensation as the court determines to be fair and reasonable for services performed under his appointment.

(1944, p. 362; Michie Suppl. 1946, § 5400e; Code 1950, § 26-71; 2012, c. 614.)

Chapter 25. Acts Barring Property Rights.

Sec.

§ 64.2-2500. Definitions.

As used in this chapter:

"Decedent" means any person whose life has been taken as a result of murder or voluntary manslaughter.

"Property" includes any real and personal property and any right or interest therein.

"Slayer" means any person (i) who is convicted of the murder or voluntary manslaughter of the decedent or, (ii) in the absence of such conviction, who is determined, whether before or after his death, by a court of appropriate jurisdiction by a preponderance of the evidence to have committed one of the offenses listed in clause (i) resulting in the death of the decedent. For the purposes of clause (ii), the party seeking to establish that a decedent was slain by such person shall have the burden of proof.

(1981, c. 469, § 55-401; 1987, c. 498; 2008, cc. 822, 830; 2012, c. 614.)

Law review. - For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982).

For 1987 survey of Virginia wills, trusts, and estates law, see 21 U. Rich. L. Rev. 855 (1987). For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For Survey article, see "Civil Practice and Procedure," 48 U. Rich. L. Rev. 1 (2013).

For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

Editor's note. - The annotations below were decided under comparable provisions of prior law.

CASE NOTES

Operability of slayer statute. - When the decedent's adult child shot and killed the decedent, under the laws of intestate succession at the time of the decedent's death, as modified by the version of the Virginia Slayer Statute, § 55-401 et seq., in effect at the time of the death of the decedent, the decedent's estate passed to the decedent's surviving parent, instead of the adult child's minor children, because the parent was the next living person who was neither the slayer, nor making a claim through the slayer. Further, the version of the Slayer Statute that was in effect at the time of the decedent's death, not the later amended version of the statute that was in effect at the time of the adult child's conviction, was applicable. Bell v. Casper, 282 Va. 203 , 717 S.E.2d 783 (2011), cert. denied, 132 S. Ct. 1971, 182 L. Ed. 2d 819, (U.S. 2012).

Section does not preclude insurance company from attempting to prove beneficiary not entitled to insurance proceeds. - This section does not preclude insurance company from attempting to establish that deceased's wife was not entitled to the proceeds of her husband's life insurance policy if it can prove by a preponderance of the evidence that she "procured, participated in or otherwise directed" her husband's death. Peoples Sec. Life Ins. Co. v. Arrington, 243 Va. 89 , 412 S.E.2d 705 (1992).

In an action to determine the beneficiary of a Servicemen's Group Life Insurance policy, where both the policy and 38 U.S.C. § 770(a) directed that the proceeds were to be distributed according to the order of precedence set forth in the policy and the statute, as former § 64.1-18 (predecessor to this chapter) was not in conflict with the statute and did not frustrate any provision of the federal scheme, it controlled to bar decedent's wife, convicted of murdering her husband, from participating in the proceeds of the policy on his life. Prudential Ins. Co. of Am. v. Tull, 532 F. Supp. 341 (E.D. Va. 1981), aff'd, 690 F.2d 848 (4th Cir. 1982).

Where the insurance company presented no rationale for disclosure of life insurance beneficiary's medical records, other than to "see what information, if any, those medical records contained relating to the murder of the beneficiary's husband and her involvement therein," the trial court did not abuse its discretion in granting the beneficiary's motion to quash the insurance company's subpoena of those medical records. Peoples Sec. Life Ins. Co. v. Arrington, 243 Va. 89 , 412 S.E.2d 705 (1992).

§ 64.2-2501. Slayer not to acquire property as result of slaying.

A slayer, or any transferee, assignee, or other person claiming through the slayer, shall not in any way acquire any property or receive any benefits as the result of the death of the decedent, but such property or benefits shall pass as provided in this chapter.

(1981, c. 469, § 55-402; 2008, cc. 822, 830l; 2012, c. 614.)

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.25 Effect of Misconduct. Cox.

CASE NOTES

Operability of slayer statute. - When the decedent's adult child shot and killed the decedent, under the laws of intestate succession at the time of the decedent's death, as modified by the version of the Virginia Slayer Statute, § 55-401 et seq., in effect at the time of the death of the decedent, the decedent's estate passed to the decedent's surviving parent, instead of the adult child's minor children, because the parent was the next living person who was neither the slayer, nor making a claim through the slayer. Further, the version of the Slayer Statute that was in effect at the time of the decedent's death, not the later amended version of the statute that was in effect at the time of the adult child's conviction, was applicable. Bell v. Casper, 282 Va. 203 , 717 S.E.2d 783 (2011), cert. denied, 132 S. Ct. 1971, 182 L. Ed. 2d 819, (U.S. 2012)(decided under prior law).

§ 64.2-2502. Property passing by will or intestate succession; surviving spouse.

  1. The slayer shall be deemed to have predeceased the decedent as to property that would have passed from the estate of the decedent to the slayer by intestate succession or that the slayer would have acquired by statutory right as the decedent's surviving spouse. An heir or distributee who establishes his kinship to the decedent by way of his kinship to a slayer shall be deemed to be claiming from the decedent and not through the slayer.
  2. The slayer shall be deemed to have predeceased the decedent as to property that would have passed to the slayer by the will of the decedent; however, the antilapse provisions of § 64.2-418 are applicable to such property. (1981, c. 469, §§ 55-403, 55-404; 1990, c. 831; 2008, cc. 822, 830; 2012, c. 614.)

CASE NOTES

Operability of slayer statute. - When the decedent's adult child shot and killed the decedent, under the laws of intestate succession at the time of the decedent's death, as modified by the version of the Virginia Slayer Statute, § 55-401 et seq., in effect at the time of the death of the decedent, the decedent's estate passed to the decedent's surviving parent, instead of the adult child's minor children, because the parent was the next living person who was neither the slayer, nor making a claim through the slayer. Further, the version of the Slayer Statute that was in effect at the time of the decedent's death, not the later amended version of the statute that was in effect at the time of the adult child's conviction, was applicable. Bell v. Casper, 282 Va. 203 , 717 S.E.2d 783 (2011), cert. denied, 132 S. Ct. 1971, 182 L. Ed. 2d 819, (U.S. 2012)(decided under prior law).

§ 64.2-2503. Concurrent ownership with or without survivorship.

  1. The death of the decedent caused by the slayer results in the vesting of the slayer's interest in property held by the decedent and the slayer as tenants by the entirety or any other form of ownership with the right of survivorship in the estate of the decedent as though the slayer had predeceased the decedent.
  2. The death of the decedent caused by the slayer results in the severance of the slayer's interest in property held by the decedent and the slayer as joint tenants, joint owners, or joint obligees without the right of survivorship and the share of the decedent passes as a part of his estate.

    (1981, c. 469, §§ 55-405, 55-406; 1992, c. 521; 2008, cc. 822, 830; 2012, c. 614.)

CIRCUIT COURT OPINIONS

Wife who murdered husband is treated as predeceased. - Court did not award a wife any interest in land she held with the husband in tenancy by the entirety or in a car she held with the husband in joint tenancy with survivorship, because she murdered the husband and was treated as predeceasing the husband; the wife's interest in the property went to the husband's estate. Gowen v. Gowen, 66 Va. Cir. 496, 2003 Va. Cir. LEXIS 369 (Nelson County 2003)(decided under prior law).

§ 64.2-2504. Reversions and vested remainders.

Property in which the slayer holds a reversion or vested remainder and would have obtained the right of present possession upon the death of the decedent shall pass to the estate of the decedent, if the decedent held the particular estate, during the period of the life expectancy of the decedent, or if the particular estate is held by a third person and measured by the life of the decedent, it shall remain in the possession of the third person during the period of the life expectancy of the decedent.

(1981, c. 469, § 55-407; 2012, c. 614.)

§ 64.2-2505. Interests dependent on survivorship or continuance of life.

Any interest in property, whether vested or not, held by the slayer subject to be divested, diminished in any way, or extinguished if the decedent survives him or lives to a certain age shall be held by the slayer during his lifetime or until the decedent would have reached such age, but shall then pass as if the decedent had died immediately after the death of the slayer or the reaching of such age.

(1981, c. 469, § 55-408; 2012, c. 614.)

§ 64.2-2506. Contingent remainders and future interests.

  1. As to any contingent remainder or executory or other future interest held by the slayer subject to become vested in him or increased in any way for him upon the death of the decedent, the slayer shall be deemed to have predeceased the decedent if the interest would not have become vested or increased if the slayer had predeceased the decedent.
  2. Notwithstanding subsection A, any contingent remainder or executory or other future interest shall not be vested in the slayer or increased in any way for him during the period of the life expectancy of the decedent.

    (1981, c. 469, § 55-409; 2012, c. 614.)

§ 64.2-2507. Powers of appointment.

  1. The slayer shall be deemed to have predeceased the decedent as to any exercise in the decedent's will of a power of appointment in favor of the slayer and the appointment shall be deemed to have lapsed.
  2. Property held either presently or in remainder by the slayer subject to be divested by the exercise by the decedent of a power of revocation or a general power of appointment shall pass to the estate of the decedent. Property held by the slayer subject to be divested by the exercise by the decedent of a power of appointment to a particular person or persons or to a class of persons shall pass to such person or persons or in equal shares to the members of such class of persons, exclusive of the slayer.

    (1981, c. 469, § 55-410; 2012, c. 614.)

§ 64.2-2508. Proceeds of insurance; bona fide payment by insurance company or obligor.

  1. Insurance proceeds payable to the slayer as the beneficiary or assignee of any policy or certificate of insurance or bond or other contractual agreement on the life of the decedent or as the survivor of a joint life policy shall be paid to the estate of the decedent, unless the policy or certificate designates some person as an alternative beneficiary to the slayer.
  2. If the decedent is the beneficiary or assignee of any policy or certificate of insurance on the life of the slayer, the proceeds shall be paid to the estate of the decedent upon the death of the slayer, unless the policy names some person other than the slayer or his estate as an alternative beneficiary, or unless the slayer, by naming a new beneficiary or by assigning the policy, performs an act that would have deprived the decedent of his interest in the policy if he had been living.
  3. No insurance company shall be subject to liability on a policy insuring the life of the decedent if (i) as a part of the slayer's plan to murder the decedent, such policy was procured and maintained by the slayer or as a result of actions taken or participated in by the slayer whether directly or indirectly and (ii) the decedent's death resulted from the slayer's act committed within two years from the date such policy was issued by the insurance company.
  4. Any insurer making payment according to the terms of its policy or contract or any bank or other person performing an obligation for the slayer as one of several joint obligees shall not be subjected to additional liability by the terms of this section if such payment or performance is made without notice of circumstances bringing it within the provisions of this section.

    (1981, c. 469, § 55-411; 2008, cc. 822, 830; 2012, c. 614.)

CASE NOTES

Appeal allowed before forfeiture. - For the purposes of the insurance proceeds forfeiture provision, a person does not stand finally "convicted" until the Virginia Supreme Court has reviewed the trial court's finding of guilt and has affirmed the conviction by appropriate action. Thus, a criminal defendant is entitled to pursue all rights of appeal before forfeiture is imposed. Prudential Ins. Co. of Am. v. Tull, 524 F. Supp. 166 (E.D. Va. 1981)(decided under prior law).

Effect of collateral review. - Where a murder conviction was affirmed on direct appeal, the availability of collateral review did not warrant a delay in finding that the convicted murderer was not entitled to the proceeds of the victim's life insurance policy. Conn. Gen. Life Ins. Co. v. Riner, 351 F. Supp. 2d 492 (W.D. Va. 2005)(decided under prior law).

§ 64.2-2509. Persons acquiring from slayer protected.

The provisions of this chapter shall not affect the right of any person who, before the interests of the slayer have been adjudicated, acquires from the slayer for adequate consideration property or an interest therein that the slayer would have received except for the terms of this chapter, provided that such property or interest is acquired without notice of circumstances tending to bring it within the provisions of this chapter. All consideration received by the slayer shall be held by him in trust for the persons entitled to the property under the provisions of this chapter, and the slayer shall be liable for any portion of such consideration that he may have dissipated and for any difference between the actual value of the property and the amount of such consideration.

(1981, c. 469, § 55-412; 2008, cc. 822, 830; 2012, c. 614.)

§ 64.2-2510. Admissibility of judicial record determining slayer.

The record of the judicial proceeding in which a person is determined to be a slayer shall be admissible in evidence for or against a claimant of property in any civil action arising under this chapter. A conviction shall be conclusive evidence of the guilt of the slayer.

(1981, c. 469, § 55-413; 2008, cc. 822, 830; 2012, c. 614.)

§ 64.2-2511. Construction.

  1. This chapter shall not be considered penal in nature, but shall be construed broadly in order to effect the policy of the Commonwealth that no person shall be allowed to profit by his own wrong, wherever committed. In furtherance of this policy, the provisions of this chapter are not intended to be exclusive and all common law rights and remedies that prevent one who has participated in the willful and unlawful killing of another from profiting by his wrong shall continue to exist in the Commonwealth.
  2. If this chapter or any part thereof is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this chapter, any person who, not for value, receives a payment, an item of property, or any other benefit to which he is not entitled under this chapter shall return that payment, item of property, or other benefit or be liable for the amount of the payment or the value of the property or benefit to the person who would have been entitled to it were this chapter or part thereof not preempted.
  3. The Uniform Simultaneous Death Act (§ 64.2-2200 et seq.) shall not apply to cases governed by this chapter. (1981, c. 469, §§ 55-414, 55-415; 1994, c. 475; 2007, c. 301; 2008, cc. 822, 830; 2012, c. 614.)

Law review. - For Survey article, see "Civil Practice and Procedure," 48 U. Rich. L. Rev. 1 (2013).

For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

Chapter 26. Uniform Disclaimer of Property Interests Act.

Sec.

§ 64.2-2600. Definitions.

As used in this chapter:

"Disclaimant" means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.

"Disclaimed interest" means the interest that would have passed to the disclaimant had the disclaimer not been made.

"Disclaimer" means the refusal to accept an interest in or power over property.

"Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.

"Jointly held property" means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property and includes, without limitation, property held as tenants by the entirety.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, recognized by federal law or formally acknowledged by a state.

"Trust" means (i) an express trust, charitable or noncharitable, with additions thereto, whenever and however created; and (ii) a trust created pursuant to a statute, judgment, or decree, that requires the trust to be administered in the manner of an express trust.

(2003, c. 253, § 64.1-196.1; 2012, c. 614.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 43-8-290 through 43-8-298.

Alaska: Alaska Stat. §§ 13.70.010 through 13.70.195.

Arizona: A.R.S. § 14-10001 et seq.

Arkansas: A.C.A. § 28-2-201 et seq.

Colorado: C.R.S. § 15-11-1201 et seq.

District of Columbia: D.C. Code § 19-1501 et seq.

Florida: Fla. Stat. § 739.101 et seq.

Hawaii: H.R.S. § 526-1 et seq.

Indiana: Burns Ind. Code Ann. § 32-17.5-1-1 et seq.

Iowa: Iowa Code § 633E.1 et seq.

Maryland: Md. Estates and Trusts Code Ann. § 9-201 et seq.

Minnesota: Minn. Stat. § 524.2-1101 et seq.

Mississippi: Miss. Code Ann. § 89-21-1 et seq.

Nevada: Nev. Rev. Stat. § 120.100 et seq.

New Hampshire: RSA § 563-B:1 et seq.

New Mexico: N.M. Stat. Ann. § 45-2-1101 et seq.

North Dakota: N.D. Cent. Code, § 30.1-10.1-01 et seq.

Oregon: ORS § 105.623 et seq.

Texas: Tex. Prop. Code § 240.001 et seq.

Vermont: 14 V.S.A. § 1951 et seq.

West Virginia: W. Va. Code § 42-6-1 et seq.

Law review. - For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

Research References. - (Chapter) Virginia Forms (Matthew Bender). No. 15-224. Disclaimer Trust; No. 15-449. Disclaimer, et seq.

§ 64.2-2601. Scope.

This chapter applies to disclaimers of any interest in or power over property, whenever created.

(2003, c. 253, § 64.1-196.2; 2012, c. 614.)

§ 64.2-2602. Chapter supplemented by other law.

  1. Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.
  2. This chapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this chapter.

    (2003, c. 253, § 64.1-196.3; 2012, c. 614.)

§ 64.2-2603. Power to disclaim; general requirements; when irrevocable.

  1. A person may disclaim in whole or in part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
  2. Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of the Commonwealth or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
  3. A custodial parent of a minor for whom no guardian of the property has been appointed may disclaim, in whole or in part, an interest in or power over property, including a power of appointment, that, but for the custodial parent's disclaimer, would have passed to the minor as the result of another disclaimer. The custodial parent may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
  4. To be effective, a disclaimer shall be in writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in § 64.2-2610 . In this subsection, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  5. A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of power, or any other interest or estate in the property.
  6. A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 64.2-2610 or when it becomes effective as provided in §§ 64.2-2604 through 64.2-2609 , whichever occurs later.
  7. A disclaimer made under this chapter is not a transfer, assignment, or release.

    (2003, c. 253, § 64.1-196.4; 2012, c. 614.)

CASE NOTES

Where defendant's disclaimer related back to the effective date of husband's insurance policy, she had no vested interest in the proceeds at the time she exercised her right to disclaim them, and thus she was incapable of making a fraudulent or involuntary transfer of property. Abbott v. Willey, 479 S.E.2d 528 (1997) (decided under former law).

Debtor's undivided one-half interest in his mother's property was included in his bankruptcy estate pursuant to 11 U.S.C.S. § 541(a)(5)(A), to be administered by the trustee because it was inherited within 180 days after the filing of the Chapter 7 petition; therefore, the debtor's post petition partial disclaimer of his interest in the inherited property was void because, once the debtor filed for bankruptcy, he lost any right to exercise disclaimer under § 64.1-196.4 and the trustee had the duty under 11 U.S.C.S. § 704(a)(1) to collect and reduce to money the estate property. Wolfe v. Farrior (In re Farrior), 344 Bankr. 483, 2006 Bankr. LEXIS 1098 (Bankr. W.D. Va. 2006)(decided under prior law).

§ 64.2-2604. Disclaimer of interest in property.

  1. In this section:

    "Future interest" means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation.

    "Time of distribution" means the time when a disclaimed interest would have taken effect in possession or enjoyment.

  2. Except for a disclaimer governed by § 64.2-2605 or 64.2-2606 , the following rules apply to a disclaimer of an interest in property:
    1. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate's death.
    2. The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.
    3. If the instrument does not contain a provision described in subdivision 2, the following rules apply:
      1. If the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution. However, if by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive at the time of distribution.
      2. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.
    4. Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment. (2003, c. 253, § 64.1-196.5; 2012, c. 614.)

CASE NOTES

Disclaimer of interest in insurance policy. - The defendant had an absolute right under this section to disclaim any interest she may have had in her husband's insurance policy, and as a result of such disclaimer, she acquired no interest in these proceeds because the disclaimer related back to the effective date of the insurance policy. Abbott v. Willey, 479 S.E.2d 528 (1997) (decided under prior law).

§ 64.2-2605. Disclaimer of rights of survivorship in jointly held property.

  1. Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or in part, the greater of (i) a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates or (ii) all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.
  2. A disclaimer under subsection A takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.
  3. An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.

    (2003, c. 253, § 64.1-196.6; 2012, c. 614.)

§ 64.2-2606. Disclaimer of interest by trustee.

If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

(2003, c. 253, § 64.1-196.7; 2012, c. 614.)

§ 64.2-2607. Disclaimer of power of appointment or other power not held in a fiduciary capacity.

If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply:

  1. If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
  2. If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power.
  3. The instrument creating the power is construed as if the power expired when the disclaimer became effective.

    (2003, c. 253, § 64.1-196.8; 2012, c. 614.)

§ 64.2-2608. Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

  1. A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.
  2. A disclaimer of an interest in property by an object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.

    (2003, c. 253, § 64.1-196.9; 2012, c. 614.)

§ 64.2-2609. Disclaimer of power held in fiduciary capacity.

  1. If a fiduciary disclaims a power held in a fiduciary capacity that has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
  2. If a fiduciary disclaims a power held in a fiduciary capacity that has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
  3. A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

    (2003, c. 253, § 64.1-196.10; 2012, c. 614.)

§ 64.2-2610. Delivery or filing.

  1. In this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of (i) an annuity or insurance policy; (ii) an account with a designation for payment on death; (iii) a security registered in beneficiary form; (iv) a pension, profit-sharing, retirement, or other employment-related benefit plan; or (v) any other nonprobate transfer at death.
  2. Subject to subsections C through L, delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.
  3. In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, (i) a disclaimer shall be delivered to the personal representative of the decedent's estate or (ii) if no personal representative is then serving, it shall be filed with a court having jurisdiction to appoint the personal representative.
  4. In the case of an interest in a testamentary trust, (i) a disclaimer shall be delivered to the trustee then serving or, if no trustee is then serving, to the personal representative of the decedent's estate or (ii) if no personal representative is then serving, it shall be filed with a court having jurisdiction to enforce the trust.
  5. In the case of an interest in an inter vivos trust, (i) a disclaimer shall be delivered to the trustee then serving; (ii) if no trustee is then serving, it shall be filed with a court having jurisdiction to enforce the trust; or (iii) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it shall be delivered to the settlor of a revocable trust or the transferor of the interest.
  6. In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer shall be delivered to the person making the beneficiary designation.
  7. In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer shall be delivered to the person obligated to distribute the interest.
  8. In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer shall be delivered to the person to whom the disclaimed interest passes.
  9. In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created, (i) the disclaimer shall be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power or (ii) if no fiduciary is then serving, it shall be filed with a court having authority to appoint the fiduciary.
  10. In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, (i) the disclaimer shall be delivered to the holder, the personal representative of the holder's estate, or the fiduciary under the instrument that created the power or (ii) if no fiduciary is then serving, it shall be filed with a court having authority to appoint the fiduciary.
  11. In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer shall be delivered as provided in subsection C, D, or E, as if the power disclaimed were an interest in property.
  12. In the case of a disclaimer of a power by an agent, the disclaimer shall be delivered to the principal or the principal's representative.

    (2003, c. 253, § 64.1-196.11; 2012, c. 614.)

CASE NOTES

Where defendant's disclaimer related back to the effective date of husband's insurance policy, she had no vested interest in the proceeds at the time she exercised her right to disclaim them, and thus she was incapable of making a fraudulent or involuntary transfer of property. Abbott v. Willey, 479 S.E.2d 528 (1997) (decided under former law).

§ 64.2-2611. When disclaimer barred or limited.

  1. A disclaimer is barred by a written waiver of the right to disclaim.
  2. A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective: (i) the disclaimant accepts the interest sought to be disclaimed; (ii) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or (iii) a judicial sale of the interest sought to be disclaimed occurs.
  3. A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
  4. A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant.
  5. A disclaimer is barred or limited if so provided by law other than this chapter.
  6. A disclaimer of a power over property that is barred by this section is ineffective. A disclaimer of an interest in property that is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.

    (2003, c. 253, § 64.1-196.12; 2012, c. 614.)

Law review. - For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

CASE NOTES

Illustrative case. - By contracting away whatever interest he may have had in his mother's estate, debtor exercised dominion over her estate contrary to the language of this section and thus his creditors were entitled to satisfy their claims out of the assets that would have come to him had he not disclaimed. Niklason v. Ramsey, 233 Va. 161 , 353 S.E.2d 783 (1987) (decided under former law).

§ 64.2-2612. Tax qualified disclaimer.

Notwithstanding any other provision of this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of Title 26 of the United States Code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.

(2003, c. 253, § 64.1-196.13; 2012, c. 614.)

§ 64.2-2613. Recording of disclaimer.

If an instrument transferring title to real property is disclaimed, a copy of the disclaimer shall be recorded in the office of the clerk of the circuit court for the jurisdiction where the real property is located. If any other interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

(2003, c. 253, § 64.1-196.14; 2012, c. 614.)

§ 64.2-2614. Application to existing relationships.

Except as otherwise provided in § 64.2-2611 , an interest in or power over property existing on July 1, 2003, as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after the effective date of this chapter.

(2003, c. 253, § 64.1-196.15; 2012, c. 614.)

Chapter 27. Uniform Powers of Appointment Act.

General Provisions.

Creation, Revocation, and Amendment of Power of Appointment.

Exercise of Power of Appointment.

Disclaimer or Release; Contract to Appoint or Not to Appoint.

Right of Powerholder's Creditors in Appointive Property.

Miscellaneous Provisions.

Article 1. General Provisions.

§ 64.2-2700. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Appointee" means a person to which a powerholder makes an appointment of appointive property.

"Appointive property" means the property or property interest subject to a power of appointment.

"Blanket-exercise clause" means a clause in an instrument which exercises a power of appointment and is not a specific-exercise clause. "Blanket-exercise clause" includes a clause that:

  1. Expressly uses the words "any power" in exercising any power of appointment the powerholder has;
  2. Expressly uses the words "any property" in appointing any property over which the powerholder has a power of appointment; or
  3. Disposes of all property subject to disposition by the powerholder.

    "Donor" means a person that creates a power of appointment.

    "Exclusionary power of appointment" means a power of appointment exercisable in favor of any one or more of the permissible appointees to the exclusion of the other permissible appointees.

    "General power of appointment" means a power of appointment exercisable in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

    "Gift-in-default clause" means a clause in the instrument creating the power identifying a taker in default of appointment.

    "Impermissible appointee" means a person that is not a permissible appointee.

    "Instrument" means a record.

    "Nongeneral power of appointment" means a power of appointment that is not a general power of appointment.

    "Permissible appointee" means a person in whose favor a powerholder may exercise a power of appointment.

    "Person" means an individual; estate; trust; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity.

    "Powerholder" means a person in which a donor creates a power of appointment.

    "Power of appointment" means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. "Power of appointment" does not include a power of attorney.

    "Presently exercisable power of appointment" means a power of appointment exercisable by the powerholder at the relevant time. "Presently exercisable power of appointment":

    1. Includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:

    1. The occurrence of the specified event;
    2. The satisfaction of the ascertainable standard; or
    3. The passage of the specified time; and

      2. Does not include a power exercisable only at the powerholder's death.

      "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

      "Specific-exercise clause" means a clause in an instrument which specifically refers to and exercises a particular power of appointment.

      "Taker in default of appointment" means a person that takes all or part of the appointive property to the extent that the powerholder does not effectively exercise the power of appointment.

      "Terms of the instrument" means the manifestation of the intent of the maker of the instrument regarding the instrument's provisions as expressed in the instrument or as may be established by other evidence that would be admissible in a legal proceeding.

      (1944, p. 67; Michie Suppl. 1946, § 5440(1); Code 1950, § 55-278; 2012, c. 614; 2016, c. 266.)

The 2016 amendments. - The 2016 amendment by c. 266 rewrote the section.

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 21 Conditions, Trusts and Powers. § 21.24 Powers of Appointment. Cox.

Virginia Forms (Matthew Bender). No. 15-226 Provision Declining to Exercise Power of Appointment, et seq.

§§ 64.2-2701 through 64.2-2704.

Repealed by Acts 2016, c. 266, cl. 2.

Editor's note. - Former §§ 64.2-2701 through 64.2-2704, pertaining to right to release, manner of effecting release, notice of release; recordation; fee and right of release not exclusive; interaction with disclaimer rules, were derived from Acts 1944, p. 67; Michie Suppl. 1946, § 5440(2); Code 1950, § 55-279; 2012, c. 614; 1944, p. 67; Michie Suppl. 1946, § 5440(3); Code 1950, § 55-280; 2012, c. 614; 1944, p. 68; Michie Suppl. 1946, §§ 5440(6), 5440(7), 5440(8), 5440(9); Code 1950, §§ 55-283, 55-284, 55-285, 55-286; 2012, c. 614; 2014, c. 330 and (1944, p. 68; Michie Suppl. 1946, § 5440(5); Code 1950, § 55-282; 1952, c. 609, § 55-286.1; 1978, c. 338; 2003, c. 253, § 55-286.2; 2012, c. 614.

§ 64.2-2705. Governing law.

Unless the terms of the instrument creating a power of appointment manifest a contrary intent:

  1. The creating, revocation, or amendment of the power is governed by the law of the donor's domicile at the relevant time; and
  2. The exercise, release, or disclaimer of the power, or the revocation or amendment of the exercise, release, or disclaimer of the power is governed by the law of the powerholder's domicile at the relevant time.

    (2016, c. 266.)

§ 64.2-2706. Common law and principles of equity.

The common law and principles of equity supplement this chapter, except to the extent modified by this chapter or other law of the Commonwealth.

(2016, c. 266.)

Article 2. Creation, Revocation, and Amendment of Power of Appointment.

§ 64.2-2707. Creation of power of appointment.

  1. A power of appointment is created only if:
    1. The instrument creating the power:
      1. Is valid under applicable law; and
      2. Except as otherwise provided in subsection B, transfers the appointive property; and
    2. The terms of the instrument creating the power manifest the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.
  2. Subdivision A 1 b does not apply to the creation of a power of appointment by the exercise of a power of appointment.
  3. A power of appointment may not be created in a deceased individual.
  4. Subject to an applicable rule against perpetuities, a power of appointment may be created in an unborn or unascertained powerholder.

    (2016, c. 266.)

§ 64.2-2708. Nontransferability.

A powerholder may not transfer a power of appointment. If a powerholder dies without exercising or releasing a power, the power lapses.

(2016, c. 266.)

§ 64.2-2709. Presumption of unlimited authority.

Subject to § 64.2-2711 , and unless the terms of the instrument creating a power of appointment manifest a contrary intent, the power is:

  1. Presently exercisable;
  2. Exclusionary; and
  3. Except as otherwise provided in § 64.2-2710 , general. (2016, c. 266.)

§ 64.2-2710. Exception to presumption of unlimited authority.

Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the power is nongeneral if:

  1. The power is exercisable only at the powerholder's death; and
  2. The permissible appointees of the power do not include the powerholder's estate, the powerholder's creditors, or the creditors of the powerholder's estate.

    (2016, c. 266.)

§ 64.2-2711. Rules of classification.

  1. As used in this section, "adverse party" means a person with a substantial beneficial interest in property which would be affected adversely by a powerholder's exercise or nonexercise of a power of appointment in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.
  2. If a powerholder may exercise a power of appointment only with the consent or joinder of an adverse party, the power is nongeneral.
  3. Only a power of appointment whose permissible appointees are defined and limited can be nonexclusionary.

    (2016, c. 266.)

§ 64.2-2712. Power to revoke or amend.

A donor may revoke or amend a power of appointment only to the extent that:

  1. The instrument creating the power is revocable by the donor; or
  2. The donor reserves a power of revocation or amendment in the instrument creating the power of appointment.

    (2016, c. 266.)

Article 3. Exercise of Power of Appointment.

§ 64.2-2713. Requisites for exercise of power of appointment.

A power of appointment is exercised only:

  1. If the instrument exercising the power is valid under applicable law;
  2. If the terms of the instrument exercising the power:
    1. Manifest the powerholder's intent to exercise the power; and
    2. Subject to § 64.2-2716 , satisfy the requirements of exercise, if any, imposed by the donor; and
  3. To the extent that the appointment is a permissible exercise of the power.

    (2016, c. 266.)

Research References. - Virginia Forms (Matthew Bender). No. 15-244 Execution of Power of Appointment.

§ 64.2-2714. Intent to exercise; determining intent from residuary clause.

  1. As used in this section:

    "Residuary clause" does not include a residuary clause containing a blanket-exercise clause or a specific-exercise clause.

    "Will" includes a codicil and a testamentary instrument that revises another will.

  2. A residuary clause in a powerholder's will, or a comparable clause in the powerholder's revocable trust, manifests the powerholder's intent to exercise a power of appointment only if:
    1. The terms of the instrument containing the residuary clause do not manifest a contrary intent;
    2. The power is a general power exercisable in favor of the powerholder's estate;
    3. There is no gift-in-default clause or the clause is ineffective; and
    4. The powerholder did not release the power.

      (2016, c. 266.)

Research References. - Virginia Forms (Matthew Bender). No. 15-101 Checklist for Will Interview, et seq.; No. 15-221 Disposition of Residuary Estate, et seq.; No. 15-301 Revocable Inter Vivos Trust Agreement.

§ 64.2-2715. Intent to exercise; after-acquired power.

Unless the terms of the instrument exercising a power of appointment manifest a contrary intent:

  1. Except as otherwise provided in subdivision 2, a blanket-exercise clause extends to a power acquired by the powerholder after executing the instrument containing the clause; and
  2. If the powerholder is also the donor of the power, the clause does not extend to the power unless there is no gift-in-default clause or the gift-in-default clause is ineffective.

    (2016, c. 266.)

§ 64.2-2716. Substantial compliance with donor-imposed formal requirement.

A powerholder's substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if:

  1. The powerholder knows of and intends to exercise the power; and
  2. The powerholder's manner of attempted exercise of the power does not impair a material purpose of the donor in imposing the requirement.

    (2016, c. 266.)

§ 64.2-2717. Permissible appointment.

  1. A powerholder of a general power of appointment that permits appointment to the powerholder or the powerholder's estate may make any appointment, including an appointment in trust or creating a new power of appointment, that the powerholder could make in disposing of the powerholder's own property.
  2. A powerholder of a general power of appointment that permits appointment only to the creditors of the powerholder or of the powerholder's estate may appoint only to those creditors.
  3. Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the powerholder of a nongeneral power may:
    1. Make an appointment in any form, including an appointment in trust, in favor of a permissible appointee;
    2. Create a general power or a nongeneral power in a permissible appointee; or
    3. Create a nongeneral power in an impermissible appointee to appoint to one or more of the permissible appointees of the original nongeneral power.

      (2016, c. 266.)

§ 64.2-2718. Appointment to deceased appointee.

An appointment to a deceased appointee is ineffective.

(2016, c. 266.)

§ 64.2-2719. Impermissible appointment.

  1. An exercise of a power of appointment in favor of an impermissible appointee is ineffective.
  2. An exercise of a power of appointment in favor of a permissible appointee is ineffective to the extent that the appointment is a fraud on the power.

    (2016, c. 266.)

§ 64.2-2720. Selective allocation doctrine.

If a powerholder exercises a power of appointment in a disposition that also disposes of property the powerholder owns, the owned property and the appointive property shall be allocated in the permissible manner that best carries out the powerholder's intent.

(2016, c. 266.)

§ 64.2-2721. Capture doctrine; disposition of ineffectively appointed property under general power.

To the extent that a powerholder of a general power of appointment, other than a power to withdraw property from, revoke, or amend a trust, makes an ineffective appointment:

  1. The gift-in-default clause controls the disposition of the ineffectively appointed property; or
  2. If there is no gift-in-default clause or to the extent that the clause is ineffective, the ineffectively appointed property:
    1. Passes to:
      1. The powerholder if the powerholder is a permissible appointee and living; or
      2. If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or
    2. If there is no taker under subdivision 2 a, passes under a reversionary interest to the donor or the donor's transferee or successor in interest.

      (2016, c. 266.)

§ 64.2-2722. Disposition of unappointed property under released or unexercised general power.

To the extent that a powerholder releases or fails to exercise a general power of appointment other than a power to withdraw property from, revoke, or amend a trust:

  1. The gift-in-default clause controls the disposition of the unappointed property; or
  2. If there is no gift-in-default clause or to the extent that the clause is ineffective:
    1. Except as otherwise provided in subdivision 2 b, the unappointed property passes to:
      1. The powerholder if the powerholder is a permissible appointee and living; or
      2. If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or
    2. To the extent that the powerholder released the power, or if there is no taker under subdivision 2 a, the unappointed property passes under a reversionary interest to the donor or the donor's transferee or successor in interest.

      (2016, c. 266.)

§ 64.2-2723. Disposition of unappointed property under released or unexercised nongeneral power.

To the extent that a powerholder releases, ineffectively exercises, or fails to exercise a nongeneral power of appointment:

  1. The gift-in-default clause controls the disposition of the unappointed property; or
  2. If there is no gift-in-default clause or to the extent that the clause is ineffective, the unappointed property:
    1. Passes to the permissible appointees if:
      1. The permissible appointees are defined and limited; and
      2. The terms of the instrument creating the power do not manifest a contrary intent; or
    2. If there is no taker under subdivision 2 a, passes under a reversionary interest to the donor or the donor's transferee or successor in interest.

      (2016, c. 266.)

§ 64.2-2724. Disposition of unappointed property if partial appointment to taker in default.

Unless the terms of the instrument creating or exercising a power of appointment manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share fully in unappointed property.

(2016, c. 266.)

§ 64.2-2725. Appointment to taker in default.

If a powerholder makes an appointment to a taker in default of appointment and the appointee would have taken the property under a gift-in-default clause had the property not been appointed, the power of appointment is deemed not to have been exercised and the appointee takes under the clause.

(2016, c. 266.)

§ 64.2-2726. Powerholder's authority to revoke or amend exercise.

A powerholder may revoke or amend an exercise of a power of appointment only to the extent that:

  1. The powerholder reserves a power of revocation or amendment in the instrument exercising the power of appointment, and if the power is nongeneral, the terms of the instrument creating the power of appointment do not prohibit the reservation; or
  2. The terms of the instrument creating the power of appointment provide that the exercise is revocable or amendable.

    (2016, c. 266.)

Article 4. Disclaimer or Release; Contract to Appoint or Not to Appoint.

§ 64.2-2727. Disclaimer.

As provided by Chapter 26 (§ 64.2-2600 et seq.):

  1. A powerholder may disclaim all or part of a power of appointment.
  2. A permissible appointee, appointee, or taker in default of appointment may disclaim all or part of an interest in appointive property.

    (2016, c. 266.)

Research References. - Virginia Forms (Matthew Bender). No. 15-244 Execution of Power of Appointment.

§ 64.2-2728. Authority to release.

A powerholder may release a power of appointment, in whole or in part, except to the extent that the terms of the instrument creating the power prevent the release.

(2016, c. 266.)

§ 64.2-2729. Method of release.

A powerholder of a releasable power of appointment may release the power in whole or in part:

  1. By substantial compliance with a method provided in the terms of the instrument creating the power; or
  2. If the terms of the instrument creating the power do not provide a method or the method provided in the terms of the instrument is not expressly made exclusive, by a record manifesting the powerholder's intent by clear and convincing evidence.

    (2016, c. 266.)

§ 64.2-2730. Notice of release; recordation; fee.

  1. A fiduciary or other person, association, or corporation having possession or control of any appointive property, other than the powerholder, shall not be deemed to have notice of a release of the power of appointment until the original or a copy of the release is delivered to such fiduciary or other person, association, or corporation.
  2. A purchaser or mortgagee of any real property subject to a power of appointment, without actual notice of the release, shall not be deemed to have notice of a release of power until (i) the original or a copy of the release is recorded in the circuit court clerk's office in the county or city in which the real property is located, referencing the will or deed book where the instrument creating the power is recorded, and (ii) the deed, will, or other instrument creating the power of appointment, or a certified copy thereof, is recorded in the same clerk's office.
  3. No release shall be invalid or ineffective for failing to comply with subsection A or B.
  4. The clerk shall record a release of a power of appointment in the deed book and index the release in the daily and general indexes with the name of the powerholder being entered on the grantor index. For each such recordation, the clerk shall be paid a fee in the amount applicable to the recordation of deeds as set forth in subdivision A 2 of § 17.1-275 and an additional fee of $5. (2016, c. 266.)

§ 64.2-2731. Revocation or amendment of release.

A powerholder may revoke or amend a release of a power of appointment only to the extent that:

  1. The instrument of release is revocable by the powerholder; or
  2. The powerholder reserves a power of revocation or amendment in the instrument of release.

    (2016, c. 266.)

§ 64.2-2732. Power to contract; presently exercisable power of appointment.

A powerholder of a presently exercisable power of appointment may contract:

  1. Not to exercise the power; or
  2. To exercise the power if the contract when made does not confer a benefit on an impermissible appointee.

    (2016, c. 266.)

§ 64.2-2733. Power to contract; power of appointment not presently exercisable.

A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if the powerholder:

  1. Is also the donor of the power; and
  2. Has reserved the power in a revocable trust.

    (2016, c. 266.)

§ 64.2-2734. Remedy for breach of contract to appoint or not to appoint.

The remedy for a powerholder's breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.

(2016, c. 266.)

Article 5. Right of Powerholder's Creditors in Appointive Property.

§ 64.2-2735. Creditor claim; general power created by powerholder.

  1. As used in this section, "power of appointment created by the powerholder" includes a power of appointment created in a transfer by another person to the extent that the powerholder contributed value to the transfer.
  2. Appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of the powerholder or of the powerholder's estate to the extent provided in Chapter 4 (§ 55.1-400 et seq.) of Title 55.1.
  3. Subject to subsection B, appointive property subject to a general power of appointment created by the powerholder is not subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent that the powerholder irrevocably appointed the property in favor of a person other than the powerholder or the powerholder's estate.
  4. Subject to subsections B and C, and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the creation of the power of appointment, appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of:
    1. The powerholder, to the same extent as if the powerholder owned the appointive property, if the power is presently exercisable; and
    2. The powerholder's estate, to the extent that the estate is insufficient to satisfy the claim and subject to the right of a decedent to direct the source from which liabilities are paid, if the power is exercisable at the powerholder's death.

      (2016, c. 266.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 4 ( § 55.1-400 et seq.) of Title 55.1" for "Chapter 5 ( § 55-80 et seq.) of Title 55."

Research References. - Virginia Forms (Matthew Bender). No. 15-244 Execution of Power of Appointment.

§ 64.2-2736. Creditor claim; general power not created by powerholder.

  1. Except as otherwise provided in subsection C, appointive property subject to a presently exercisable general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of the powerholder to the extent that the powerholder's property is insufficient.
  2. Appointive property subject to a general power of appointment exercisable at the powerholder's death is not subject to a claim of a creditor of the powerholder or the powerholder's estate except to the extent that the power is exercised in favor of the powerholder's estate.
  3. Subject to subsection C of § 64.2-2738 , a power of appointment created by a person other than the powerholder, which is subject to an ascertainable standard relating to an individual's health, education, support, or maintenance within the meaning of 26 U.S.C. § 2041(b)(1)(A) or 26 U.S.C. § 2514(c)(1), as amended, is treated for purposes of this article as a nongeneral power. (2016, c. 266.)

§ 64.2-2737. Power to withdraw.

  1. For purposes of this article, and except as otherwise provided in subsection B, a power to withdraw property from a trust is treated, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the property subject to the power to withdraw.
  2. On the lapse, release, or waiver of a power to withdraw property from a trust, the power is treated as a presently exercisable general power of appointment only to the extent that the value of the property affected by the lapse, release, or waiver exceeds the greater of the amount specified in 26 U.S.C. § 2041(b)(2) and 26 U.S.C. § 2514(e) or two times the amount specified in 26 U.S.C. § 2503(b), as amended.

    (2016, c. 266.)

§ 64.2-2738. Creditor claim; nongeneral power.

  1. Except as otherwise provided in subsections B and C, appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder's estate.
  2. Appointive property subject to a nongeneral power of appointment is subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent that the powerholder owned the property and, reserving the nongeneral power, transferred the property in violation of Chapter 4 (§ 55.1-400 et seq.) of Title 55.1.
  3. If the initial gift in default of appointment is to the powerholder or the powerholder's estate, a nongeneral power of appointment is treated for purposes of this article as a general power.

    (2016, c. 266.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Chapter 4 ( § 55.1-400 et seq.) of Title 55.1" for "Chapter 5 ( § 55-80 et seq.) of Title 55."

Article 6. Miscellaneous Provisions.

§ 64.2-2739. Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(2016, c. 266.)

§ 64.2-2740. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, 15 U.S.C. § 7003(b).

(2016, c. 266.)

§ 64.2-2741. Application to existing relationships.

  1. Except as otherwise provided in this chapter, on and after July 1, 2016:
    1. This chapter applies to a power of appointment created before, on, or after July 1, 2016;
    2. This chapter applies to a judicial proceeding concerning a power of appointment commenced on or after July 1, 2016;
    3. This chapter applies to a judicial proceeding concerning a power of appointment commenced before July 1, 2016, unless the court finds that application of a particular provision of this chapter would interfere substantially with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision of this chapter does not apply and the superseded law applies;
    4. A rule of construction or presumption provided in this chapter applies to an instrument executed before July 1, 2016, unless there is a clear indication of a contrary intent in the terms of the instrument; and
    5. Except as otherwise provided in subdivisions 1 through 4, an action done before July 1, 2016, is not affected by this chapter.
  2. If a right is acquired, extinguished, or barred on the expiration of a prescribed period that commenced under law of the Commonwealth other than this chapter before July 1, 2016, the law continues to apply to the right.

    (2016, c. 266.)