Virginia Code 64.2-1307: Testamentary trustees under a will waiving accounts; waiver where beneficiary also trustee
A. For purposes of this section, the term “sole beneficiary” means a person who is (i) the only income beneficiary who is entitled to the principal, or the remaining principal goes to the trustee‘s estate or (ii) the only income beneficiary and has either a general power of appointment over the principal or has a special power of appointment that is not limited to a particular class of persons.
Terms Used In Virginia Code 64.2-1307
- Adult: means a person 18 years of age or more. See Virginia Code 1-203
- Attorney-in-fact: A person who, acting as an agent, is given written authorization by another person to transact business for him (her) out of court.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Decedent: A deceased person.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- in writing: include any representation of words, letters, symbols, numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Chapter 42. See Virginia Code 1-257
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof. See Virginia Code 1-230
- Personal representative: includes the executor of 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. See Virginia Code 1-234
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- Testator: A male person who leaves a will at death.
- Trustee: means a trustee under a probated will or an inter vivos trust instrument. See Virginia Code 64.2-100
- Trustee: A person or institution holding and administering property in trust.
B. If (i) the will of a decedent probated on or after July 1, 1993, contains a waiver of the obligations of the testamentary trustee nominated therein to account or (ii) the sole beneficiary of the trust also is a trustee, the trustee will not be required to file accounts with the commissioner of accounts.
Where the waiver is contained in the decedent’s will, the trustee shall within 90 days after qualification notify in writing all beneficiaries of the trust, other than the trustee, who are adults, whose addresses are known to the trustee, and to whom income or principal of the trust could be currently distributed; provide each such beneficiary with a copy of the applicable provisions of the will; advise each such beneficiary of his right to require an annual accounting; and provide each such beneficiary with a copy of this section and annually thereafter provide each such beneficiary an accounting upon request. The trustee shall send to the commissioner of accounts a copy of the notice given to each beneficiary or, in the alternative, file a writing with the commissioner of accounts stating that the requirements of this section have been met. For receiving and filing such notice or writing, the commissioner of accounts shall be allowed a fee not to exceed $25.
C. Language substantially in form and effect as follows shall be sufficient to constitute a waiver in the will of the decedent of the trustee’s obligation to account: “I hereby direct that my trustee(s) shall not be required to file annual accounts with a court as otherwise required by Virginia law.”
D. Notwithstanding a waiver in the will of the decedent or any prior consent of a beneficiary, any such adult beneficiary may, at any time during the administration of the trust, demand in a writing delivered to the trustee and to the commissioner of accounts that the trustee settle annually with the commissioner of accounts. Upon notice of such demand to the trustee and the commissioner of accounts, such trustee shall file an account with the commissioner of accounts for a period acceptable to the commissioner of accounts as though there were no waiver by the testator. The beneficiary making such demand may later revoke his demand by a writing delivered to the trustee and the commissioner of accounts. The demand for settlement of the trustee’s account before the commissioner of accounts may also be made by the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian of an incapacitated beneficiary, a committee of a convict or insane beneficiary, the duly qualified guardian of a minor, or if none exists, a custodial parent of a minor or by any minor who has attained 14 years of age.
E. Notwithstanding the provisions of this section, any trustee under a will of a decedent containing the requisite waiver, whenever probated, shall be relieved of the duty to file an inventory or annual accounts with the commissioner of accounts if the trustee (i) obtains the written consent of all adult beneficiaries, other than the trustee, to whom income or principal of the trust could be currently distributed, after providing those beneficiaries with the documents and information specified in subsection B, and (ii) files those consents with the commissioner of accounts on or before the date on which the inventory or next required accounting would otherwise be due. For receiving and filing such written consent, the commissioner of accounts shall be allowed a fee not to exceed $25.
F. Notwithstanding the provisions of this section, any trustee under a will of a decedent probated on or after July 1, 2010, shall be relieved of the duty to file an inventory or annual accounts with the commissioner of accounts if the will of the decedent does not direct the filing of such inventory or accounts and the trustee (i) obtains the written consent of all adult beneficiaries, other than the trustee, to whom income or principal of the trust could be currently distributed, after providing those beneficiaries with the documents and information specified in subsection B; (ii) obtains the written consent of the representatives of all incapacitated beneficiaries, other than the trustee, to whom income or principal of the trust could be currently distributed, after providing those representatives with the documents and information specified in subsection B; and (iii) files those consents with the commissioner of accounts on or before the date on which the inventory or next required accounting would otherwise be due. For receiving and filing such written consent, the commissioner of accounts shall be allowed a fee not to exceed $25. The consent of an incapacitated beneficiary may be made by the personal representative of a deceased beneficiary whose estate is a beneficiary, an attorney-in-fact for a beneficiary, a guardian of an incapacitated beneficiary, a committee of a convict or insane beneficiary, the duly qualified guardian of a minor, or if none exists, a custodial parent of a minor who is not also the trustee. Language substantially in form and effect as follows shall be sufficient to constitute a direction in the will of the decedent of the trustee’s obligation to account: “I hereby direct that my trustee(s) shall be required to file annual accounts with a court as otherwise required by Virginia law.”
G. A circuit court having jurisdiction may order the filing of annual accounts if it deems such filings to be in the best interests of one or more beneficiaries of the trust.
1993, c. 689, § 26-17.7; 2001, c. 73; 2005, c. 821; 2010, cc. 197, 651; 2012, c. 614.