Après la signature de votre trust de Virginie

Funding: a trust governs what is titled to it

A trust is created by a transfer of property to a trustee, by a declaration that the owner holds identifiable property as trustee, or by a will or other disposition taking effect at death (Va. Code § 64.2-719). Signing the instrument does not move your accounts or your house into it; each asset is retitled to the trustee, or names the trust as beneficiary, to come under its terms. A deed or other instrument that conveys property to the trust rather than to its trustees conveys it to the trustees as fully as if made to them directly (Va. Code § 64.2-772).

Spouses who own property as tenants by the entirety may convey it to their joint or separate revocable or irrevocable trusts, and it keeps the same immunity from their separate creditors as if it had remained entireties property, so long as they remain married to each other, it stays in trust and it remains their property (Va. Code § 55.1-136). An agent under a power of attorney may create or fund a trust for you only where the power expressly authorizes it (Va. Code § 64.2-719).

While you are living: your trust, your control

Unless the terms of a trust expressly provide that it is irrevocable, the settlor may revoke or amend it — a rule that applies to a trust created under an instrument executed on or after July 1, 2006 (Va. Code § 64.2-751(A)). The capacity to create, amend, revoke or add property to a revocable trust is the capacity to make a will (Va. Code § 64.2-750). While the trust is revocable, the beneficiaries' rights are subject to your control, the trustee's duties are owed exclusively to you, and the trustee may follow your direction even if it is contrary to the terms (Va. Code § 64.2-752).

During your lifetime the property of a revocable trust remains subject to your creditors' claims (Va. Code § 64.2-747(A)(1)). A revocable trust is not an asset-protection device; a qualified self-settled spendthrift trust is a separate, irrevocable form with its own requirements (Va. Code §§ 64.2-745.1, 64.2-745.2).

Your successor trustee

The person you name as successor fills the vacancy when you can no longer serve or at your death; if no named successor accepts, the qualified beneficiaries may appoint one by unanimous agreement, and failing that the court appoints one (Va. Code § 64.2-757). The successor accepts by the method the instrument provides or by conduct (Va. Code § 64.2-754), and takes title to the trust property on acceptance without any conveyance (Va. Code § 64.2-760).

From the day the trust becomes irrevocable, your successor will owe the beneficiaries the duties of Virginia's Uniform Trust Code: the notices within 60 days (Va. Code § 64.2-775(B)), the report at least annually (Va. Code § 64.2-775(C)), loyalty (Va. Code § 64.2-764) and prudence (Va. Code § 64.2-766). Naming someone who knows where your records are, and telling them, makes the first months easier.

Keeping it current

You amend or revoke a revocable trust by substantial compliance with a method provided in its terms or, if the terms provide no method, by any method manifesting clear and convincing evidence of your intent (Va. Code § 64.2-751(C)). On revocation the trustee delivers the trust property as you direct (Va. Code § 64.2-751(D)), and a trustee who does not know of a revocation or amendment is not liable for acting as if none occurred (Va. Code § 64.2-751(G)).

Where more than one settlor created or funded the trust, each may revoke or amend as to the portion of the trust property that settlor contributed, and the trustee promptly notifies the other settlors (Va. Code § 64.2-751(B)). Review the instrument after a marriage, a divorce, a birth or a death, a move or a significant change in your assets, and confirm that new accounts are titled to the trust.

If you can no longer manage it

An agent under a power of attorney may exercise your powers of revocation, amendment or distribution only where the power expressly authorizes it and the trust's terms do not expressly prohibit it (Va. Code § 64.2-751(E)); the agent acts in good faith, within the authority granted, and in accordance with your reasonable expectations and best interest, keeping a record of all receipts, disbursements and transactions (Va. Code § 64.2-1612). A conservator or guardian may exercise those powers only as the trust expressly authorizes or the supervising court permits for good cause (Va. Code § 64.2-751(F)).

A trust instrument often names who decides incapacity and who serves next as trustee; the successor fills the vacancy as Va. Code § 64.2-757 provides. Health care decisions are made under an advance directive, a separate document signed before two witnesses (Va. Code § 54.1-2983).

What happens at your death

At death the trust becomes irrevocable, and within 60 days after learning of it the trustee notifies the qualified beneficiaries of the trust's existence, of the settlor, of the right to a copy of the instrument and of the right to a report (Va. Code § 64.2-775(B)(3)). The trust's property answers for your creditors, the estate's administration costs, the funeral and the statutory allowances to the extent the probate estate is inadequate, on a written demand to the personal representative within two years (Va. Code § 64.2-747(A)(3)).

A person may contest the trust's validity within the earlier of two years after the death or six months after the trustee's notice (Va. Code § 64.2-753). A surviving spouse's elective share counts property in a revocable trust as part of the augmented estate (Va. Code §§ 64.2-308.3, 64.2-308.6). Property held in the funded trust is not probated, so the probate tax on the estate's value does not reach it (Va. Code § 58.1-1712).

Where to keep the original

Keep the signed original, every amendment and a list of the assets titled to the trust together, somewhere your successor trustee can reach; tell the successor where it is. Virginia's lodging procedure with the circuit court clerk is for wills (Va. Code § 64.2-409); a trust instrument stays with you or your attorney. The successor will rarely need to show the whole instrument to a bank or title company: a certification of trust with its eight items takes its place (Va. Code § 64.2-804).

When a licensed Virginia attorney is the right next call

Whether an asset is properly titled to the trust, how to amend under the instrument's own method, how entireties property and creditors interact with your trust, and whether a power of attorney reaches the trust are questions a licensed Virginia attorney of your choosing answers from the documents. TrusteeClear explains the statute and organizes the record for the trustee who serves after you; it does not prepare or review trust documents.