§ 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.

History. 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.

§ 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.

History. 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).

§ 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.

History. 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.

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.

§ 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.

History. 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.

§ 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.

History. 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.

History. 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.

§ 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.

History. 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 .

§ 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.

History. 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.

History. 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.

History. 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.

History. 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.”

§§ 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.

§ 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.

History. 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.

History. 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.

History. 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 .

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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).

History. 2017, cc. 33, 80.

§ 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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).

§ 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.

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

§ 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.

History. 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.

History. 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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

§ 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.

History. 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.

§ 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.

History. 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).

§ 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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.

History. 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.

§ 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.

History. 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.

History. 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.

History. 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%

History. 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.

History. 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:
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:

a. 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.

b. 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.

a. 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.

b. 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.

c. 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.

History. 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.

History. 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.

History. 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.
2. 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.
3. 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.
4. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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, 106 Va. Cir. 153, 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.

History. 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.

History. 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.

History. 2016, cc. 187, 269.

§ 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.

History. 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 Aug. 16, 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 Nov. 30, 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.

History. 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 Nov. 7, 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 Aug. 16, 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 Nov. 30, 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).

§ 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.

History. 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.

§ 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.

History. 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.

History. 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 Nov. 30, 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.

History. 1990, c. 831, § 64.1-151.6; 2012, c. 614.

§ 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

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

§ 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.

History. 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.

History. 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).

§ 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.

History. 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.

History. Code 1950, § 64-51; 1968, c. 656, § 64.1-49; 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 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).

§ 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.

History. 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.

§ 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.

History. 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.

History. Code 1950, §§ 64-53, 64-54; 1962, c. 338; 1968, c. 656, § 64.1-51; 2012, c. 614.

§ 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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.”

Acts 2022, c. 109, cl. 1 provides: “§ 1. Pursuant to an order of the Rockingham Circuit Court in accordance with subsection F of § 64.2-409 of the Code of Virginia authorizing the clerk to lodge wills for safekeeping, the clerk of the Rockingham Circuit Court may establish a pilot project for an index of wills lodged for safekeeping, with a searchable database available to the public. Such database shall protect the privacy of information contained in wills so lodged with the clerk in accordance with § 17.1-293 of the Code of Virginia. The clerk shall pay all costs associated with the pilot project. The clerk shall make a written report of findings and recommendations regarding the pilot project to the Senate Committee on the Judiciary and the House Committee for Courts of Justice no later than November 1, 2026.”

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.

§ 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.

History. Code 1950, § 64-59; 1968, c. 656, § 64.1-58.1; 1985, c. 431; 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).

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.

§ 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.

History. 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).

§ 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.

History. 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).

§ 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.

History. Code 1950, § 64-61; 1968, c. 656, § 64.1-61; 2012, c. 614.

§ 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.

History. 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.

§ 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.

History. 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.

History. 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).

§ 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.

History. 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).

§ 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.

History. 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).

§ 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.

History. 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).

§ 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.

History. 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).

§ 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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).

§ 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 .

History. 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.

History. 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.

History. 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.

History. 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

Click to view

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 1995, c. 443, § 64.1-96.11; 2001, c. 85; 2012, c. 614.

§ 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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.

§ 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.

History. 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).

§ 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.

History. 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.

History. 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.

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).

§ 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.

History. 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.

§ 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