Les pouvoirs du fiduciaire en Virginie

The general powers

A trustee, without authorization by the court, may exercise the powers conferred by the terms of the trust and, except as the terms limit them, all powers over the trust property that an unmarried competent owner has over individually owned property, any other powers appropriate to achieve the proper investment, management and distribution of the trust property, and any other powers the chapter confers (Va. Code § 64.2-777). The exercise of every power is subject to the trustee's fiduciary duties: good faith (Va. Code § 64.2-763), loyalty (Va. Code § 64.2-764), impartiality (Va. Code § 64.2-765) and prudence (Va. Code § 64.2-766).

A will or trust instrument may also incorporate by reference to Va. Code § 64.2-105 a list of fiduciary powers — among them to retain property in the form received, to sell or exchange at public or private sale, to lease beyond the term of the trust, to vote securities and to borrow with prior court approval for purposes other than debts, taxes and charges. Such a reference does not limit the trustee's statutory powers unless the settlor expressly says so (Va. Code §§ 64.2-777, 64.2-778).

The specific powers

Without limiting the general powers, Va. Code § 64.2-778 lists what a trustee may do — always subject to the duties and the terms. The list is long; the bullets name the powers trustees ask about most.

• Collect trust property and accept or reject additions; acquire or sell property, for cash or on credit, at public or private sale.
• Deposit trust money in a regulated financial service institution; borrow and mortgage or pledge trust property.
• Continue or participate in a business; exercise the rights of an owner of securities, including voting and holding in a nominee's name.
• Build, repair, subdivide and develop real property, grant easements, and lease as lessor or lessee for a term beyond the trust's duration.
• Insure the property, the trustee and the beneficiaries; abandon property of insufficient value; inspect for and remedy environmental conditions.
• Pay, contest, settle or release claims; pay taxes, compensation and the expenses of administration; make tax elections.
• Make loans, including to a beneficiary on terms the trustee considers fair and reasonable under the circumstances, with a lien on future distributions for repayment.
• Pay a distribution for a beneficiary under a disability directly, to a conservator, guardian, custodian or caregiver, or hold it as a separate fund.
• Distribute in kind or in cash, in divided or undivided interests; resolve disputes by mediation or arbitration; on termination, wind up and distribute.

Discretion, and the standard that governs it

However broad the words granting discretion — "absolute," "sole" or "uncontrolled" — a trustee exercises a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries (Va. Code § 64.2-776). Unless the terms expressly say otherwise, a person other than a settlor who is both a beneficiary and a trustee may make discretionary distributions for the trustee's own benefit only under an ascertainable standard, and no trustee may use a discretionary distribution to satisfy the trustee's personal legal obligation of support; such a power may be exercised by the other trustees or a special fiduciary the court appoints (Va. Code § 64.2-776).

A creditor of a beneficiary may not compel a distribution subject to the trustee's discretion, even if expressed as a standard (Va. Code § 64.2-746), and a creditor may reach a mandatory distribution only once it is overdue (Va. Code § 64.2-748).

Delegation and cotrustees

A trustee may delegate duties and powers — investment and management functions among them — that a prudent trustee of comparable skills could properly delegate, exercising reasonable care, skill and caution in selecting the agent, establishing the scope and terms of the delegation and periodically reviewing the agent's actions; the agent owes the trust a duty of reasonable care and submits to the jurisdiction of Virginia's courts, and a trustee who complies is not liable for the agent's acts (Va. Code §§ 64.2-769, 64.2-788). Virginia's sections name no notice of the delegation to the beneficiaries.

Cotrustees unable to agree unanimously act by majority decision; a trustee may delegate to a cotrustee any function the terms do not require the trustees to perform jointly, and each trustee exercises reasonable care to prevent a cotrustee's serious breach of trust (Va. Code § 64.2-756).

Powers held by others under the instrument

Virginia enacted the Uniform Directed Trust Act as Article 8.2 of its trust code (Va. Code § 64.2-779.26). The terms of a trust may grant a power of direction to a trust director, who may exercise any further power appropriate to it, joint directors acting by majority (Va. Code § 64.2-779.29). A directed trustee takes reasonable action to comply with the director's exercise or nonexercise of the power and is not liable for doing so, except that it must not comply to the extent that complying would be willful misconduct; with reasonable doubt about its duty it may petition the court for instructions (Va. Code § 64.2-779.32).

While a trust is revocable, the trustee may follow a direction of the settlor even if contrary to the terms, and the duties are owed exclusively to the settlor (Va. Code § 64.2-752).

Decanting and the unitrust: changing how a trust works

Virginia enacted the Uniform Trust Decanting Act as Article 8.1. An authorized fiduciary with discretion to distribute income or principal may distribute it to a second trust (Va. Code §§ 64.2-779.8, 64.2-779.9) without the consent of any person and without court approval, after notice in a record at least 60 days before the exercise to the living settlor, the qualified beneficiaries, the holders of presently exercisable powers of appointment and the others the section lists, with copies of both instruments (Va. Code § 64.2-779.5). The Act reaches an irrevocable express trust, not one held solely for charitable purposes (Va. Code § 64.2-779.1); an express prohibition in the instrument controls (Va. Code § 64.2-779.12); and the fiduciary may not use it to raise its own compensation without the beneficiaries' consent or the court's approval (Va. Code § 64.2-779.13).

A fiduciary may also convert an income trust to a unitrust, change the unitrust percentage or method, or convert back, without court approval, if the action will help administer the trust impartially and no objection is received after the notice of Va. Code § 64.2-1042 (Va. Code § 64.2-1041); the notice gives an objection date at least 30 days after it is sent (Va. Code § 64.2-1042).

Digital assets, banks and title companies: the certification of trust

Instead of the instrument, the trustee may give a person other than a beneficiary a certification of trust stating that the trust exists and the date the instrument was executed, the settlor, the currently acting trustee and address, the trustee's powers, whether the trust is revocable and who may revoke it, the cotrustees' signing authority, the trust's taxpayer identification number and the manner of taking title; any trustee may sign it, and a person who relies on it in good faith is protected (Va. Code § 64.2-804). A person who deals in good faith with a trustee need not inquire into the trustee's powers (Va. Code § 64.2-803).

A custodian of online accounts discloses a trust's digital assets to a trustee who is an original user (Va. Code § 64.2-125); to a trustee who is not, it discloses the content of electronic communications on a written request with the instrument or a certification of trust that includes consent to disclosure of content (Va. Code § 64.2-126), and a catalog of communications and other digital assets on a request with the instrument or a certification (Va. Code § 64.2-127).

When a licensed Virginia attorney is the right next call

Whether a power reaches a particular transaction, whether the instrument limits or expands a statutory power, how a discretionary standard applies to a request, whether a direction must be followed, and whether to decant or convert to a unitrust are questions a licensed Virginia attorney of your choosing answers from the instrument and the facts. TrusteeClear records each decision and its basis, and pauses at “Before you act” before money or property moves.