Virginia Code 64.2-779.11: Protection of charitable interest
A. As used in this section:
Terms Used In Virginia Code 64.2-779.11
- Charitable interest: means an interest in a trust that (i) is held by an identified charitable organization and makes the organization a qualified beneficiary; (ii) benefits only charitable organizations and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary; or (iii) is held solely for charitable purposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary. See Virginia Code 64.2-701
- Charitable organization: means (i) a person, other than an individual, organized and operated exclusively for charitable purposes or (ii) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose. See Virginia Code 64.2-701
- Charitable purpose: means the relief of poverty, the advancement of education or religion, the promotion of health, a municipal or other governmental purpose, or another purpose the achievement of which is beneficial to the community. See Virginia Code 64.2-701
- Court: means the court of the Commonwealth having jurisdiction in matters related to trusts. See Virginia Code 64.2-701
- Decanting power: means the power of an authorized fiduciary under the Uniform Trust Decanting Act (§ 64. See Virginia Code 64.2-701
- First trust: means a trust over which an authorized fiduciary may exercise the decanting power. See Virginia Code 64.2-701
- First-trust instrument: means the trust instrument for a first trust. See Virginia Code 64.2-701
- 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.
- 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. See Virginia Code 64.2-701
- Second trust: means (i) a first trust after modification, including a restatement of the first trust, under the Uniform Trust Decanting Act (§ 64. See Virginia Code 64.2-701
- Trust instrument: means a record executed by the settlor to create a trust or by any person to create a second trust that contains some or all of the terms of the trust, including any amendments. See Virginia Code 64.2-701
- United States: includes the 50 states, the District of Columbia the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands and the United States Virgin Islands. See Virginia Code 1-255
“Determinable charitable interest” means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event, or after the passage of a specified time and that is unconditional or will be held solely for charitable purposes.
“Unconditional” means not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the United States Internal Revenue Code of 1986 on the date of the distribution, if the charitable organization meets the requirement on the date of determination.
B. If a first trust contains a determinable charitable interest, the Attorney General has the rights of a qualified beneficiary and may represent and bind the charitable interest.
C. If a first trust contains a charitable interest, the second trust or trusts may not:
1. Diminish the charitable interest;
2. Diminish the interest of an identified charitable organization that holds the charitable interest;
3. Alter any charitable purpose stated in the first-trust instrument; or
4. Alter any condition or restriction related to the charitable interest.
D. If there are two or more second trusts, the second trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of subsection C.
E. If a first trust contains a determinable charitable interest, the second trust or trusts that include a charitable interest pursuant to subsection C must be administered under the law of the Commonwealth unless:
1. The Attorney General, after receiving notice under § 64.2-779.5, fails to object in a signed record delivered to the authorized fiduciary within the notice period;
2. The Attorney General consents in a signed record to the second trust or trusts being administered under the law of another jurisdiction; or
3. The court approves the exercise of the decanting power.
F. This article does not limit the powers and duties of the Attorney General under law of the Commonwealth other than this article.
2017, c. 592.