64.1-73 - Devise or bequest to trustee of an established trust.
§ 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) maybe made by a will duly executed pursuant to the provisions of this chapter tothe trustee or trustees of an inter vivos trust or testamentary trust,whether the trust was established by the testator, by the testator andanother, or by some other person if:
1. In the case of an inter vivos trust, the trust is identified in thetestator's will and its terms are set forth in a written instrument (otherthan a will) executed before or concurrently with the execution of thetestator's will; or
2. In the case of a testamentary trust, the trust is identified in thetestator's will and its terms are set forth in the valid last will of aperson who has predeceased the testator and whose will was executed before orconcurrently with the execution of the testator's will.
In either event, at the time the devise or bequest is to be distributed tothe trustee or trustees at least one trustee of the trust shall be (i) anindividual or (ii) a corporation or association authorized to do a trustbusiness in this Commonwealth. However, prior to distribution of the deviseor bequest to the trustee, each nonresident shall file, with the clerk of thecircuit court of the jurisdiction wherein the testator's will was admitted toprobate, his consent in writing that service of process in any action againsthim as trustee or any other notice with respect to administration of thetrust in his charge, may be by service upon the clerk of the court in whichhe is qualified or upon a resident of this Commonwealth at such address as hemay appoint in the written instrument filed with the clerk. Where anynonresident qualifies pursuant to this paragraph, bond with surety shall berequired in every case unless at least one other trustee is a resident or thecourt in which the nonresident qualifies waives surety under the provisionsof § 26-4.
A corporation or association not authorized to do a trust business in thisCommonwealth at the time the devise or bequest is to be distributed shallnot, 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 theinstrument creating such trust; and
2. An inter vivos trust may contain provisions whereby the amount of corpusto be allocated to any particular portion of the trust will be determined,measured or affected by the "adjusted gross estate" of the settlor ortestator for federal estate tax purposes, or by the amount of the "maritaldeduction allowable" to the settlor's or testator's estate, the amount ofdeductions or credits available to the estate of the settlor or testator forfederal estate tax purposes, or by the value of such estate for federalestate tax purposes, or by any other method, and such unfunded trust shallnot be deemed testamentary by reason thereof.
C. The devise or bequest shall not be invalid because (i) the trust isamendable or revocable or both by the settlor or any other person, eitherprior or subsequent to the testator's death, (ii) the trust instrument or anyamendment 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 ofthe testator.
D. Unless the testator's will provides otherwise, the property so devised orbequeathed:
1. Shall not be deemed held under a testamentary trust of the testator, butshall become a part of the corpus of the trust to which it is given or, ifthe will so specifies, it shall become a part of any one or more particularportions of the corpus; and
2. Shall be administered and disposed of (i) in accordance with the terms ofthe trust as they appear in writing at the testator's death, including anyamendments thereto made before the death of the testator and regardless ofwhether made before or after the execution of the testator's will, or (ii) ifthe testator expressly so specifies in his will, and only in such event, assuch terms are amended after the death of the testator.
E. In the event that the settlor or other person having the right to do sorevokes or otherwise terminates the trust pursuant to a power so to doreserved in the trust instrument, and such revocation or termination iseffected at a date subsequent to the death of a testator who has devised orbequeathed property to such trust, the revocation or termination shall beineffective as to property devised or bequeathed to such trust by a testatorother than the settlor, unless the testator's will expressly provides to thecontrary.
F. The devise or bequest shall not be valid should the entire trust not beoperative for any reason at the testator's death. If the devise or bequest isto augment only one or more portions of the trust, the devise or bequestshall not be valid should the trust not be operative for any reason as tosuch portion at the testator's death.
G. In any case in which the devise or bequest to the trustee of a trust suchas is contemplated in the foregoing provisions fails to take effect by reasonof the fact that there is no qualified trustee acting at the time the deviseor bequest is to be distributed, or that one or more of the trustees thenacting is a corporation or association not authorized to do a trust businessin this Commonwealth, the court having jurisdiction with respect to theprobate of the will or the administration of the testator's estate, uponsufficient evidence of the existence of a trust estate for administration,independent of the testator's estate, and of the validity of the trustestablished by virtue of such separate written instrument, may determine thatthe trusts declared by such separate written instrument are the trusts uponwhich the devise or bequest is made, so far as applicable in the nature ofthe case, to the same extent and with like effect as if such trust provisionshad been extensively incorporated in the testamentary documents, and thatsuch trusts will not fail for want of a qualified trustee to administer thetrust estate so devised or bequeathed. The court may then grant such furtherand ancillary relief as the nature of the case may require, including theappointment of a qualified trustee to perform the trusts with respect to theestate so devised or bequeathed, and granting instruction and guidance to thetrustee so appointed in the performance of his duties. Nothing herein shallbe deemed to authorize any such trustee to be excused from any obligations ofaccounting or performance such as are required by law of fiduciaries, nor toprevent the transfer of the trust estate to a trustee appointed by orqualified in a court of record in a foreign state in accordance with theprovisions of § 55-541.08.
H. This section shall apply to any devise or bequest under the will of adecedent dying on or after July 1, 1994, and before July 1, 1999.
(Code 1950, § 64-71.1; 1958, c. 450; 1962, c. 573; 1966, c. 538; 1968, c.656; 1972, c. 332; 1982, c. 373; 1991, c. 343; 1992, c. 66; 1994, c. 562;1995, c. 684; 1996, c. 680; 1999, c. 252; 2005, c. 935.)