Title 64.2, Wills, Trusts, and Fiduciaries

An authorized fiduciary may not exercise the decanting power to modify a provision in a first-trust instrument granting another person power to remove or replace the fiduciary unless: 1. The person holding the power consents to the modification in a signed record and the modifica…

A. As used in this section: "Grantor trust" means a trust as to which a settlor of a first trust is considered the owner under §§ 671 through 677 of the Internal Revenue Code or § 679 of the Internal Revenue Code. "Internal Revenue Code" means the United States Internal Revenue C…

A. Subject to subsection B, a second trust may have a duration that is the same as or different from the duration of the first trust. B. To the extent that property of a second trust is attributable to property of the first trust, the property of the second trust is subject to an…

An authorized fiduciary may exercise the decanting power whether or not under the first trust's discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of income or principal at the time of the exercise.

A. If exercise of the decanting power would be effective under this article except that the second-trust instrument in part does not comply with this article, the exercise of the power is effective and the following rules apply with respect to the income or principal of the secon…

A. In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust. B. This article does not create or imply a duty to exercise the decanting power or to inf…

A. As used in this section: "Animal trust" means a trust or an interest in a trust created to provide for the care of one or more animals. "Protector" means a person appointed in an animal trust to enforce the trust on behalf of the animal or, if no such person is appointed in th…

A reference in this chapter to a trust instrument or terms of the trust includes a second-trust instrument and the terms of the second trust.

A. For purposes of law of the Commonwealth other than this article and subject to subsection B, a settlor of a first trust is deemed to be the settlor of the second trust with respect to the portion of the income or principal of the first trust subject to the exercise of the deca…

A. Except as otherwise provided in subsection C, if exercise of the decanting power was intended to distribute all the income or principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust and property paid to or acquired by t…

A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the second trust after exercise of the decanting power.

If accounts for the first trust are filed with the commissioner of accounts, the accounts for the second trust shall be filed with the commissioner of accounts unless the court orders otherwise.

This article applies to a trust created before, on, or after July 1, 2017, that: 1. Has its principal place of administration in the Commonwealth, including a trust whose principal place of administration has been changed to the Commonwealth; or 2. Provides by its trust instrumen…

A trustee or other person that reasonably relies on the validity of a distribution of part or all of the property of a trust to another trust, or a modification of a trust, under this article, a law of the Commonwealth other than this article, or the law of another jurisdiction i…

A. In this section, a notice period begins on the day notice is given under subsection C and ends 59 days after the day notice is given. B. Except as otherwise provided in this article, an authorized fiduciary may exercise the decanting power without the consent of any person and…

A. On application of an authorized fiduciary, a person entitled to notice under subsection C of § 64.2-779.5, a beneficiary, or with respect to a charitable interest the Attorney General or other person that has standing to enforce the charitable interest, the court may (i) provi…

An exercise of the decanting power shall be made in a record signed by an authorized fiduciary. The signed record shall, directly or by reference to the notice required by § 64.2-779.5, identify the first trust and the second trust or trusts and state the property of the first tr…

A. As used in this section: "Noncontingent right" means a right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. "Noncontingent right" does not include a right held by a beneficiary if any person has discretion…

A. As used in this section, "limited distributive discretion" means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard. B. An authorized fiduciary that has limited distributive discretion over the income or princip…

As used in this article, unless the context requires a different meaning: "Breach of trust" includes a violation by a trust director or trustee of a duty imposed on that trust director or trustee by the terms of the trust, this article, or law of the Commonwealth other than this …

A. Except as otherwise provided in subsection B and § 64.2-779.28, this article applies to a trust that has its principal place of administration in the Commonwealth and that: 1. Is created on or after July 1, 2020; 2. Is amended by a settlor on or after July 1, 2020; 3. Is amend…

A. This article does not apply to a: 1. Power of appointment; 2. Power to appoint or remove a trustee or trust director; 3. Power of a settlor over a trust to the extent the settlor has a power to revoke the trust; 4. Power of a beneficiary over a trust to the extent the exercise…

A. Subject to § 64.2-779.30, the terms of a trust may grant a power of direction to a trust director. B. Unless the terms of a trust provide otherwise: 1. A trust director may exercise any further power appropriate to the exercise or nonexercise of a power of direction granted to…

A trust director is subject to the same rules as a trustee in a like position and under similar circumstances in the exercise or nonexercise of a power of direction or further power under subdivision B 1 of § 64.2-779.29 regarding: 1. A payback provision in the terms of a trust n…

A. Subject to subsection B, with respect to a power of direction or further power under subdivision B 1 of § 64.2-779.29: 1. A trust director has the same fiduciary duty and liability in the exercise or nonexercise of the power: a. If the power is held individually, as a sole tru…

A. Subject to subsection B, a directed trustee shall take reasonable action to comply with a trust director's exercise or nonexercise of a power of direction or further power under subdivision B 1 of § 64.2-779.29, and the trustee is not liable for the action. B. A directed trust…

A. Subject to § 64.2-779.34, a trustee shall provide information to a trust director to the extent the information is reasonably related both to: 1. The powers or duties of the trustee; and 2. The powers or duties of the trust director. B. Subject to § 64.2-779.34, a trust direct…

A. Unless the terms of a trust provide otherwise: 1. A trustee does not have a duty to: a. Monitor a trust director; or b. Inform or give advice to a settlor, beneficiary, trustee, or trust director concerning an instance in which the trustee might have acted differently than the…

A. An action against a trust director for breach of trust must be commenced within the same limitation period as under § 64.2-796 for an action for breach of trust against a trustee in a like position and under similar circumstances. B. A report or accounting has the same effect …

In an action against a trust director for breach of trust, the trust director may assert the same defenses a trustee in a like position and under similar circumstances could assert in an action for breach of trust against the trustee.

A. By accepting appointment as a trust director of a trust subject to this article, the trust director submits to personal jurisdiction of the courts of the Commonwealth regarding any matter related to a power or duty of the trust director. B. This section does not preclude other…

Unless the terms of a trust provide otherwise, the rules applicable to a trustee apply to a trust director regarding the following matters: 1. Acceptance under § 64.2-754; 2. Giving of bond to secure performance under § 64.2-755; 3. Reasonable compensation under § 64.2-761; 4. Re…

As used in this chapter: "Adult" means an individual who is at least 18 years of age. "Beneficiary" means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under this chapter. "…

A. A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration if the property is of a type subject to registration, or by other instrument of transfer, executed in any lawful manner, naming as beneficiary a…

A. A person having the right to designate the recipient of property payable or transferable upon a future event may create a custodial trust upon the occurrence of the future event by designating in writing the recipient, followed in substance by: "as custodial trustee for.......…

A. Obligations of a custodial trustee, including the obligation to follow directions of the beneficiary, arise under this chapter upon the custodial trustee's acceptance, express or implied, of the custodial trust property. B. The custodial trustee's acceptance may be evidenced b…

A. Unless otherwise directed by an instrument designating a custodial trustee pursuant to § 64.2-902, a person, including a fiduciary other than a custodial trustee, who holds property of or owes a debt to an incapacitated individual not having a conservator may make a transfer t…

A. Beneficial interests in a custodial trust created for multiple beneficiaries are deemed to be separate custodial trusts of equal undivided interests for each beneficiary. Except in a transfer or declaration for use and benefit of spouses, for whom survivorship is presumed, a r…

A. If appropriate, a custodial trustee shall register or record the instrument vesting title to custodial trust property. If the beneficiary is not incapacitated, a custodial trustee shall follow the directions of the beneficiary in the management, control, investment, or retenti…

A. A custodial trustee, acting in a fiduciary capacity, has all the rights and powers over custodial trust property that an unmarried adult owner has over individually owned property, which shall include but not be limited to those powers set forth in § 64.2-105 as of the date th…

A. A custodial trustee shall pay to the beneficiary or expend for the beneficiary's use and benefit so much or all of the custodial trust property as the beneficiary while not incapacitated may direct from time to time. If the beneficiary is incapacitated, the custodial trustee s…

A. The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if (i) the custodial trust was created under § 64.2-904, (ii) the transferor has so directed in the instrument creating the custodial trust, or (iii) the custodial trustee has determ…

A third person in good faith and without a court order may act on instructions of, or otherwise deal with, a person purporting to make a transfer as, or purporting to act in the capacity of, a custodial trustee. In the absence of knowledge to the contrary, the third person is not…

A. A claim based on a contract entered into by a custodial trustee acting in a fiduciary capacity, an obligation arising from the ownership or control of custodial trust property, or a tort committed in the course of administering the custodial trust, may be asserted by a third p…

A. Before accepting the custodial trust property, a person designated as custodial trustee may decline to serve by notifying the person who made the designation, the transferor, or the transferor's legal representative. If an event giving rise to a transfer has not occurred, the …

Except as otherwise provided in the instrument creating the custodial trust, in an agreement with the beneficiary, or by court order, a custodial trustee: 1. Is entitled to reimbursement from custodial trust property for reasonable expenses incurred in the performance of fiduciar…