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Developed and maintained by the Division of Legislative Automated Systems.
1996 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 26-59 and 64.1-73 of the Code of Virginia are amended and reenacted as follows:
§ 26-59. Nonresident fiduciaries.
A. Except as provided in subsection B, A natural person, not a resident
of this Commonwealth, shall not may be appointed or
allowed to qualify or act as personal representative, or trustee under a will,
of any decedent, or appointed as guardian of an infant's estate, or guardian of
the person or property of an incapacitated person under § 37.1-132 or
committee of any person non compos mentis, unless there is also appointed to
serve with the nonresident personal representative, trustee, guardian or
committee, a person resident in this Commonwealth or corporation authorized to
do business in this Commonwealth. In the event such resident personal
representative, trustee, or guardian ceases, for any reason to act, then a new
resident personal representative, trustee, or guardian shall be appointed in
the same manner as provided in § 26-48. However, when the nonresident
guardian or committee is the parent of the infant or person non compos mentis,
the resident guardian appointed under this section shall have no control over
the person of the ward.
B1. Notwithstanding the provisions of subsection A, a parent, brother,
sister, niece or nephew of a decedent, a child or other descendant of a
decedent, the spouse of a child of a decedent, the surviving spouse of a
decedent, or a person or all such persons otherwise eligible to file a
statement in lieu of an accounting pursuant to § 26-20.1, or any
combination of them, may be appointed and allowed to qualify as personal
representative, or trustee under a will, of the decedent, provided, in each
instance, (i) such qualification, and (ii). Qualification of such person
as a personal representative, or trustee under a will of any decedent shall
be subject to the provisions of Article 1 (§ 64.1-116 et seq.) of Chapter
6 of Title 64.1.
At the time of qualification or appointment each such person files
shall file with the clerk of the circuit court of the jurisdiction
wherein such qualification is had or appointment is made, his consent in
writing that service of process in any action or proceeding against him as
personal representative, or trustee under a will, or guardian, or
any other notice with respect to the administration of the probate
estate or the, trust, or person in his charge in this
Commonwealth may be by service upon the clerk of the court in which he is
qualified or appointed, or upon such resident of this Commonwealth and at
such address as he may appoint in the written instrument. In the event of the
death, removal, resignation or absence from this Commonwealth of such
a resident agent or any successor named by a similar instrument
filed with the clerk, or in the event that such if a resident
agent or any such successor cannot with due diligence be found for service at
the address designated in such instrument, then any process or notice may be
served on the clerk of such circuit court. Notwithstanding §§
37.1-135 and 64.1-121, where any nonresident qualifies pursuant to this
subsection, bond with surety shall be required in every case, unless a resident
personal representative or , trustee, or fiduciary
qualifies at the same time or the court making the appointment waives surety
under the provisions of § 26-4.
B2. Notwithstanding the provisions of subsection A, an adult parent,
brother, sister, spouse, child, or other adult descendant of a person adjudged
incompetent or incapacitated pursuant to Chapter 4 (§ 37.1-128.01 et seq.)
of Title 37.1 of the Code, or any combination of them, may be appointed
and allowed to qualify as guardian, committee or trustee of such incompetent or
incapacitated person, provided, in each instance, at the time of qualification
each such person files with the clerk of the circuit court of the jurisdiction
wherein such qualification is had, his consent in writing that service of
process in any action or proceeding against him as such fiduciary, or any other
notice with respect to the administration of the estate, trust or person in his
charge in this Commonwealth, may be by service upon the clerk of the court in
which he is qualified pursuant to Chapter 1 (§ 26-7.1 et seq.) of Title
26, or upon such resident of this Commonwealth and at such address as he may
appoint in the written instrument. Notwithstanding § 37.1-135, when any
nonresident qualifies pursuant to this subsection, bond with surety shall be
required in every case, unless a resident fiduciary qualifies at the same time
or the court making the appointment waives surety under the provisions of
§ 26-7.1.
C. B. No corporation shall be appointed or allowed to qualify or
act as personal representative, or trustee under a will, or as one of the
personal representatives or trustees under a will, of any decedent, or
appointed or allowed to qualify or act as guardian of an infant, or as one of
the guardians of an infant, or guardian of the person or property of an
incapacitated person under § 37.1-132, or as one of the guardians of the
person or property of an incapacitated person under § 37.1-132, or as
committee of any person non compos mentis, or as one of the committees of a
person non compos mentis, unless such corporation be is
authorized to do business in this Commonwealth. Nothing in this section
shall be construed to impair the validity of any appointment or qualification
made prior to January 1, 1962, nor to affect in any way the other provisions of
this chapter or of § 64.1-130. The provisions of this section shall not
authorize or allow any appointment or qualifications prohibited by §
6.1-5.
D. C. The fact that an individual nominated or appointed as the
guardian of the person of an infant is not a resident of this Commonwealth
shall not prevent the qualification of the individual to serve as the sole
guardian of the person of the infant.
§ 64.1-73. Devise or bequest to trustee of an established trust.
A. A devise or bequest (including the exercise of a power of appointment) may be made by a will duly executed pursuant to the provisions of this chapter to the trustee or 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
trustee or trustees at least one trustee of the trust shall be (i) an
individual resident of this Commonwealth, or (ii) a corporation
or association authorized to do a trust business in this Commonwealth or
(iii) a nonresident of this Commonwealth who is a parent, brother, sister,
niece or nephew of the testator, a child or other descendent of the testator,
the spouse of a child of the testator, the surviving spouse of the testator, or
a person or all such persons otherwise eligible to file a statement in lieu of
an accounting pursuant to § 26-20.1, or any combination of them.
However, prior to distribution of the devise or bequest to the trustee, each
such nonresident shall file, with the clerk of the circuit court of the
jurisdiction wherein the testator's will was admitted to probate, his 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 this Commonwealth at such address as he may appoint in the
written instrument filed with the clerk. Where any nonresident qualifies
pursuant to this paragraph, 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 § 26-4.
A corporation or association not authorized to do a trust business in this Commonwealth at the time the devise or bequest is to be distributed shall not, in any case, be a trustee of such trust.
B. The inter vivos trust may be an unfunded trust.
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, or by the amount of the "marital deduction allowable" to the settlor's or testator's estate, the amount of deductions or credits available to the estate of the settlor or testator for federal estate tax purposes, or by the value of such estate for federal estate tax purposes, or by any other method, and such unfunded trust shall not be deemed testamentary by reason thereof.
C. 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.
D. 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, it 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 and regardless of whether made before or after the execution of the testator's will, or (ii) if the testator expressly so specifies in his will, and only in such event, as such terms are amended after the death of the testator.
E. 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 so to do 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.
F. 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.
G. In any case in which the devise or bequest to the trustee of a trust such as is contemplated in the foregoing provisions 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 a corporation or association not authorized to do a trust business in this 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, so far as applicable in the nature of the case, 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 will 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 such 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 § 26-64.
H. This section shall apply to any devise or bequest under the will of a decedent dying on or after July 1, 1994.