In recent years, one’s estate planning considerations are touching upon an increasing range of issues. In Virginia, a thorough estate plan must include consideration of the laws relating not only to wills and trusts, but also to fiduciaries, guardianship of minors, adult guardianships and conservatorships.
The fact that these topics are presently covered in no less than five separate titles within the Virginia Code only adds complexity to the process.
In 2009, the Virginia Code Commission began an effort to simplify estate planning law for citizens and practitioners. Its efforts eventually culminated in unanimous passage of new legislation in both the Virginia Senate and House early in 2012. In April 2012, Governor Robert McDonnell signed this legislation, passed as Senate Bill 115, into law.
Summary and Benefits of Recodification
The new law will recodify most, if not all, state law related to wills, trusts and fiduciaries, effective October 1, 2012. On that date, the following titles and sections of the Virginia Code will be repealed, and a new Title 64.2 will absorb them all:
- Title 26 (Fiduciaries Generally)
- Title 31 (Guardian and Ward)
- Portions of Title 37.2 (Behavioral Health and Developmental Services)
- Portions of Title 55 (Property and Conveyances)
- Title 64.1 (Wills and Decedents’ Estates)
To be clear, the law contained in these portions of the Code will not be eliminated. Instead, they will become part of the new Title 64.2; the substance of the laws themselves will, for the most part, remain intact.
For research and planning purposes, all individuals, personal representatives, and fiduciaries should greatly benefit by the consolidation of estate planning law into one title from five. Additionally, the subtitle and chapter headings of Title 64.2 can be viewed as a thorough roadmap of the major estate planning issues that need to be considered when planning or administering an estate in Virginia.
Details of Virginia Code Title 64.2
The new Title 64.2 will contain five subtitles, including 27 chapters. For your information:
- Each chapter begins a new set of “hundreds” (i.e, Chapter 1 begins with 64.2-100, Chapter 2 begins with 64.2-200, etc.).
- The term “et seq” is Latin for “and that which follows” (i.e., Chapter 1 contains “64.2-100 et seq”, which will include any sections numbered in the 64.2-100s).
- The placement of the former titles and sections within Title 64.2 are noted broadly within the list below – complete details are available in this thorough Virginia Lawyer Magazine article by Frank Overton Brown, Jr.
Here is the complete list of the Subtitles and Chapters of Title 64.2 as passed in April:
Subtitle I – General Provisions
Contain definitions and general provisions from Section 64.1.
- Chapter 1 – Definitions and General Provisions (new Sections 64.2-100 et seq)
Subtitle II – Wills & Decedents’ Estates
Contains most of the remaining provisions from Section 64.1.
- Chapter 2 – Descent and Distribution (new Sections 64.2-200 et seq)
- Chapter 3 – Rights of Married Persons (new Sections 64.2-300 et seq)
- Chapter 4 – Wills (new Sections 64.2-400 et seq)
- Chapter 5 – Personal Representatives and Administration of Estates (new Sections 64.2-500 et seq)
- Chapter 6 – Transfers Without Qualification (new Sections 64.2-600 et seq)
Subtitle III – Trusts
Contains provisions from Title 55. Additionally, the Uniform Prudent Investor Act (presently within Title 26) will become part of Chapter 7 here.
- Chapter 7 – Uniform Trust Code (new Sections 64.2-700 et seq)
- Chapter 8 – Reserved (this chapter is “reserved” because Chapter 7 contains more than 100 sections and therefore runs into the 64.2-800s.)
- Chapter 9 – Uniform Custodial Trust Act (new Sections 64.2-900 et seq)
- Chapter 10 – Uniform Principal and Income Act (new Sections 64.2-1000 et seq)
- Chapter 11 – Uniform Prudent Management of Institutional Funds Act (new Sections 64.2-1100 et seq)
Subtitle IV – Fiduciaries and Guardians
Contains provisions from Title 26, Title 31, and Title 37.2.
- Chapter 12 – Commissioners of Accounts (new Sections 64.2-1200 et seq)
- Chapter 13 – Inventories and Accounts (new Sections 64.2-1300 et seq)
- Chapter 14 – Fiduciaries Generally (new Sections 64.2-1400 et seq)
- Chapter 15 – Investments (new Sections 64.2-1500 et seq)
- Chapter 16 – Uniform Power of Attorney Act (new Sections 64.2-1600 et seq)
- Chapter 17 – Appointment of Guardian (new Sections 64.2-1700 et seq)
- Chapter 18 – Custody and Care of Ward and Estate (new Sections 64.2-1800 et seq)
- Chapter 19 – Virginia Uniform Transfers to Minors Act (new Sections 64.2-1900 et seq)
- Chapter 20 – Guardianship and Conservatorship (new Sections 64.2-2000 et seq)
- Chapter 21 – Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (new Sections 64.2-2100 et seq)
Subtitle V – Provisions Applicable to Probate and Non-probate Transfers
Contains provisions from Title 26, Title 55, and Title 64.1.
- Chapter 22 – Uniform Simultaneous Death Act (new Sections 64.2-2200 et seq)
- Chapter 23 – Persons Presumed Dead (new Sections 64.2-2300 et seq)
- Chapter 24 – Conservators of Property of Absentees (new Sections 64.2-2400 et seq)
- Chapter 25 – Acts Barring Property Rights (new Sections 64.2-2500 et seq)
- Chapter 26 – Uniform Disclaimer of Property Interests Act (new Sections 64.2-2600 et seq)
- Chapter 27 – Release of Powers of Appointment (new Sections 64.2-2700 et seq)
Ideally, the law should be written so that it is “available” to the public and not just specialist lawyers and judges. Title 64.2 is more practical than its predecessor law in that it provides citizens with more guidance through the major issues involved in planning for one’s incapacity and death. The Virginia Code Commission, Legislature and Governor McDonnell have done a fine job in their effort to simplify Virginia estate planning law.
In the next post, we will discuss an interesting and unique circumstance created by this and other recent changes in Virginia law.
- History and Summary of Virginia Senate Bill 115 (2012 Session) (leg1.state.va.us)
- 2012 Recodification and Revision of Title 64.1 of the Code of Virginia (vsb.org)
- Virginia Reorganizes Fiduciary Laws into New Title 64.2 (mcguirewoods.com)