Noteworthy 2017 Virginia Trusts & Estates Legislative Updates
On July 1, 2017, a number of legislative updates to the Code of Virginia, including following amendments and enactments pertaining to trusts and estates, will take effect in Virginia:
Uniform Trust Decanting Act. Virginia’s existing decanting statute, Va. Code § 64.2-778.1, will be repealed in favor of the Uniform Trust Decanting Act. Virginia will be the third state to adopt the Uniform Trust Decanting Act and will be the first to replace an existing decanting statute by amending Va. Code § 64.2-701 and enacting Va. Code §§ 64.2-779.1 through 64.2-779.25. See SB 913.
Uniform Fiduciary Access to Digital Assets Act. Virginia will repeal the 2015 Privacy Expectation Afterlife and Choices Act (Va. Code §§ 64.2-109 through 64.2-115) in favor of adopting the Uniform Fiduciary Access to Digital Assets Act as Va. Code §§ 64.2-116 through 64.2-132. The Uniform Fiduciary Access to Digital Assets Act enables fiduciaries to manage digital property such as computer files, web domains, and virtual currency, while restricting a fiduciary’s access to electronic communications such as email, text messages, and social media accounts, unless the original user consented to such access in a will, trust, power of attorney, or other record. See SB 903, HB 1608.
Special Needs Trust; ABLE Savings Trust Account. Amendments to Va. Code §§ 16.1-278.15 and 20-124.2, provides that upon the request of either party to a child support proceeding, a court may order that support payments be made to a special needs trust or an ABLE savings trust account. See HB 1492
Award of Life Insurance Upon Divorce or Dissolution of Marriage. The enactment of Va. Code § 20.107.1:1 will enable a court to require a party to maintain an existing life insurance policy or renew a policy that had been cancelled or lapsed during marriage for the benefit of the other party following a court order for spousal support or separate maintenance. See HB 2289.
Surviving Spouse’s Elective Share. An amendment to Va. Code § 64.2-311 provides that if the surviving spouse of a decedent dying on or after Jan. 1, 2017, claims and receives an elective share, the homestead allowance available to the spouse shall be in addition to any benefit or elective share passing to such surviving spouse. See HB 1516, SB 1177
Estate Planning Legal Malpractice. An amendment to Va. Code § 64.2-520 and the enactment of § 64.2-520.1, provides that the statute of limitations for legal malpractice related to estate planning is five years if the legal representation was based on a written contract and three years if the legal representation was based on an unwritten contract. The accrual date for such an action is the date of completion of the representation. Further, a person who is not party to the representation shall have standing to maintain such an action only if there is a written agreement between the individual who is the subject of the estate planning and the defendant that expressly grants standing to such person. See SB 1140.