Distributions · 6 min read
Discretion, and the standard that governs it
However broad the words granting discretion — "absolute," "sole" or "uncontrolled" — Va. Code § 64.2-776 provides that 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; unless the terms expressly say otherwise, a trustee who is also a beneficiary may make discretionary distributions for the trustee's own benefit only under an ascertainable standard. A creditor of a beneficiary may not compel a discretionary distribution (Va. Code § 64.2-746), but may reach a mandatory one the trustee has not made within a reasonable time after the date it was due (Va. Code § 64.2-748).
When distribution waits
After the settlor's death the trustee may distribute under the terms without liability unless the trustee knows of a pending contest, or a potential contestant's notification is followed by a proceeding within 60 days (Va. Code § 64.2-753(B)); a contest is brought within the earlier of two years after the death or six months after the trustee's notice (Va. Code § 64.2-753(A)), and a beneficiary of a trust later held invalid returns what was received (Va. Code § 64.2-753(C)). The settlor's creditors may reach a trust that was revocable at the death, to the extent the probate estate is inadequate, for two years on a written demand (Va. Code § 64.2-747(A)(3)).
Distribution on termination
On an event terminating the trust, the trustee proceeds expeditiously to distribute to the persons entitled, subject to a reasonable reserve for debts, expenses and taxes (Va. Code § 64.2-779(B)); a proposal for distribution that informs the beneficiaries of the right to object and the time allowed ends that right 30 days after it was sent (Va. Code § 64.2-779(A)). The trustee may distribute in kind or in cash, in divided or undivided interests (Va. Code § 64.2-778).
"Per stirpes" and Virginia's division at the closest degree
A trust instrument's words control how shares divide. Where Virginia's own rule applies — in intestacy — the estate, or each parental half, is divided into as many equal shares as there are heirs in the closest degree of kinship to the decedent and deceased persons in that degree who left descendants surviving; one share passes to each living heir and one share passes per stirpes to the descendants of each deceased person (Va. Code § 64.2-202). Whether an instrument's "per stirpes" or "by representation" means the same is a question of the instrument's words for a licensed Virginia attorney of your choosing.
The statutes, verbatim
When persons take per capita and when per stirpes; collaterals of the half blood
Va. Code § 64.2-202 ↗Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.
Limitation on action contesting validity of revocable trust; distribution of trust property
Va. Code § 64.2-753 ↗Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.
Discretionary powers; tax savings
Va. Code § 64.2-776 ↗Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.
Distribution upon termination
Va. Code § 64.2-779 ↗Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.
Common questions
How long must a Virginia trustee wait to distribute after a death?
No period is set: the trustee may distribute under the terms without liability unless it knows of a pending contest or a potential contestant's notification is followed by a proceeding within 60 days (Va. Code § 64.2-753(B)).
Can a creditor force a Virginia trustee to make a distribution?
Not a discretionary one (Va. Code § 64.2-746); a mandatory distribution the trustee has not made within a reasonable time after it was due may be reached (Va. Code § 64.2-748).
How does Virginia divide an estate among descendants?
Into equal shares at the closest degree of kinship that has a living heir, each deceased person's share passing per stirpes to that person's descendants (Va. Code § 64.2-202).
Related reading
The Learning Center is general information about Virginia law — not legal advice, and not a substitute for advice from a licensed Virginia attorney about your specific facts. TrusteeClear is software, not a law firm.
Frequently asked questions
- How long must a Virginia trustee wait to distribute after a death?
- No period is set: the trustee may distribute under the terms without liability unless it knows of a pending contest or a potential contestant's notification is followed by a proceeding within 60 days (Va. Code § 64.2-753(B)).
- Can a creditor force a Virginia trustee to make a distribution?
- Not a discretionary one (Va. Code § 64.2-746); a mandatory distribution the trustee has not made within a reasonable time after it was due may be reached (Va. Code § 64.2-748).
- How does Virginia divide an estate among descendants?
- Into equal shares at the closest degree of kinship that has a living heir, each deceased person's share passing per stirpes to that person's descendants (Va. Code § 64.2-202).
General information about Virginia law, not legal advice.