Title 64.2, Title 64.2. Wills, Trusts, and Fiduciaries

To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute: 1. A conservator or guardian of the estate may represent and bind the estate that such fiduciary…

Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular ques…

A. If the court determines that an interest is not represented under this chapter, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a min…

A. A trust may be created by: 1. Transfer of property to another person as trustee during the settlor's lifetime by the settlor or by the settlor's agent, acting in accordance with § 64.2-1612, under a power of attorney that expressly authorizes the agent to create a trust on the…

A. A trust is created only if: 1. The settlor has capacity to create a trust; or when the trust is created by the settlor's agent under a power of attorney, which expressly authorizes the agent to create a trust on the settlor's behalf; 2. The settlor or his agent indicates an in…

A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation: 1. The settlor was domiciled, had a place of abode, or was a nati…

A trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve. A trust and its terms shall be for the benefit of its beneficiaries.

A. A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community. B. If the terms of a charitable trust …

A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

In addition to any other relevant provision of law, where a presumption of undue influence arises in any action contesting the validity of a trust or trust instrument created pursuant to the provisions of Article 1 (§ 64.2-700 et seq.), the finder of fact shall presume that the u…

Except as required by a statute other than this chapter, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

A. A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death o…

Except as otherwise provided in § 64.2-726 or by another statute, the following rules apply: 1. A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the t…

A. In addition to the methods of termination prescribed by §§ 64.2-729 through 64.2-732, a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, cont…

A. If upon petition the court finds that the settlor and all beneficiaries consent to the modification or termination of a noncharitable irrevocable trust, the court shall enter an order approving the modification or termination even if the modification or termination is inconsis…

A. The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification shall be …

A. Except as otherwise provided in subsection B, if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful: 1. The trust does not fail, in whole or in part; 2. The trust property does not revert to the settlor or the settlor's successo…

A. After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than $250,000 may terminate the trust without court approval if the trustee concludes that the value of the trust property is insufficient to justify the …

The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in express…

To achieve the settlor's tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intention. The court may provide that the modification has retroactive effect.

After notice to the qualified beneficiaries, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not materially impair the rights of any beneficiary or adversely affect achievement of the purposes of …

When any such gift, grant, devise, or bequest establishes a private foundation, as defined in § 509 of the Internal Revenue Code, or constitutes a charitable trust, as described in § 4947(a)(1) of the Internal Revenue Code, or a split-interest trust, as described in § 4947(a)(2) …

Every trust that is a private foundation, as defined in § 509 of the Internal Revenue Code, or a charitable trust, as described in § 4947(a)(1) of the Internal Revenue Code, unless its governing instrument expressly includes specific provisions to the contrary, shall distribute i…

Every trust that is a split-interest trust, as described in § 4947(a)(2) of the Internal Revenue Code, unless its governing instrument expressly includes specific provisions to the contrary, shall not engage in any act of self-dealing, as defined in § 4941(d) of the Internal Reve…

Sections 64.2-737 and 64.2-738 shall apply to any private foundation, charitable trust, or split-interest trust defined or described therein and established after December 31, 1969; and to any such private foundation, charitable trust, or split-interest trust established before J…

Each reference to a section of the Internal Revenue Code made in §§ 64.2-736 through 64.2-739 shall include future amendments to such Code sections and corresponding provisions of future internal revenue laws.

Nothing in §§ 64.2-736 through 64.2-740 shall impair the power of a court of competent jurisdiction with respect to any such foundation or trust.

To the extent a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or oth…

A. A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest. B. A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust," or words of similar import, is sufficient to r…

A. In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state. B. Even if a trust contains a spendthrift provision, a beneficiary's child who has a judgment or court order against the beneficiary for supp…

A. Notwithstanding any contrary provision in the trust instrument, if a statute or regulation of the United States or Commonwealth requires a beneficiary to reimburse the Commonwealth or any agency or instrumentality thereof, for public assistance, including medical assistance, f…

A. Except as otherwise provided in this article, § 64.2-747 shall not apply to qualified interest in a qualified self-settled spendthrift trust. B. Section 64.2-747 shall continue to apply with respect to any interest held by a settlor in a qualified self-settled spendthrift trus…

A. As used in this article, unless the context requires a different meaning: "Independent qualified trustee" means a qualified trustee who is not, and whose actions are not, subject to direction by: 1. The settlor; 2. Any natural person who is not a resident of the Commonwealth; …

A. In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state. B. Except as otherwise provided in subsection C and § 64.2-745, whether or not a trust contains a spendthrift provision, a creditor of a bene…

A. Whether or not the terms of a trust contain a spendthrift provision, the following rules apply: 1. During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors. 2. With respect to an irrevocable trust, except to the exte…

A. In this section "mandatory distribution" means a distribution of income or principal that the trustee is required to make to a beneficiary under the terms of the trust, including a distribution upon termination of the trust. The term does not include a distribution subject to …

Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.

The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

A. Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2006. B. If a revocable trust is created or funded by more than…

A. While a trust is revocable, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor. B. While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trus…

A. A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of: 1. Two years after the settlor's death; or 2. Six months after the trustee sent the person a copy of the trust instrument and a notic…

A. Except as otherwise provided in subsection C, a person designated as trustee accepts the trusteeship: 1. By substantially complying with a method of acceptance provided in the terms of the trust; or 2. If the terms of the trust do not provide a method or the method provided in…

A. Except as otherwise provided in Part A (§ 64.2-1200 et seq.) of Subtitle IV, a trustee shall give bond, or bond with surety or other security, to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiar…

A. Cotrustees who are unable to reach a unanimous decision may act by majority decision. B. If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust. C. Subject to subsection I, a cotrustee shall participate in the performance of a trustee's function…

A. A vacancy in a trusteeship occurs if: 1. A person designated as trustee rejects the trusteeship; 2. A person designated as trustee cannot be identified or does not exist; 3. A trustee resigns; 4. A trustee is disqualified or removed; 5. A trustee dies; or 6. An individual serv…

A. A trustee may resign: 1. Upon at least 30 days' notice to the settlor, if living, to all cotrustees, and to the qualified beneficiaries except those qualified beneficiaries under a revocable trust that the settlor has the capacity to revoke; or 2. With the approval of the cour…