Virginia Code 64.2-779.12: Trust limitation on decanting
A. An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of:
Terms Used In Virginia Code 64.2-779.12
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Authorized fiduciary: means (i) a trustee or other fiduciary, other than a settlor, that has discretion to distribute or direct a trustee to distribute part or all of the income or principal of the first trust to one or more current beneficiaries and that is not (a) a current beneficiary of the first trust or a beneficiary to which the net income or principal of the first trust would be distributed if the first trust were terminated, (b) a trustee of the first trust that may be removed and replaced by a current beneficiary who has the power to remove the existing trustee of the first trust and designate as successor trustee a person that may be a related or subordinate party, as defined in 26 U. 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
- Fiduciary: includes a guardian, committee, trustee, executor, conservator, or personal representative. See Virginia Code 64.2-100
- Fiduciary: A trustee, executor, or administrator.
- 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
- Person: means an individual; estate; business or nonprofit entity; government; governmental subdivision, agency, or instrumentality; public corporation; or other legal entity. See Virginia Code 64.2-701
- Second-trust instrument: means the trust instrument for a second trust. See Virginia Code 64.2-701
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See Virginia Code 64.2-701
1. The decanting power; or
2. A power granted by state law to the fiduciary to distribute part or all of the income or principal of the trust to another trust or to modify the trust.
B. Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of:
1. The decanting power; or
2. A power granted by state law to a fiduciary to distribute part or all of the income or principal of the trust to another trust or to modify the trust.
C. A general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiary‘s interest does not preclude exercise of the decanting power.
D. Subject to subsections A and B, an authorized fiduciary may exercise the decanting power under this article even if the first-trust instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part or all of the income or principal of the first trust to another trust.
E. If a first-trust instrument contains an express prohibition described in subsection A or an express restriction described in subsection B, the provision must be included in the second-trust instrument.
2017, c. 592.