Private Client Services Update – 2017 Virginia Legislative Update – Trusts, Estates, and Elder Law Changes
2017 Virginia Legislative Update Trusts, Estates, and Elder Law Changes
The 2017 Virginia legislative session resulted in several important changes to trusts, estates, and elder law, some of which are summarized below. The new laws become effective July 1, 2017.
Uniform Trust Decanting Act
When individuals want to modify the provisions of an existing irrevocable trust in response to changed and unanticipated circumstances, trust decanting offers a flexible and practical method for trustees to distribute assets from one trust to a new trust with slightly different terms. Virginia first gave trustees the authority to decant in 2012, but the adoption of the Uniform Trust Decanting Act greatly expands on the statutory framework of existing Virginia Code 64.2-778.1.
Uniform Fiduciary Access to Digital Assets Act (UFADAA)
UFADAA creates a framework for a fiduciarys request and access to the principals digital assets and also increases the statutory rights of a fiduciarys access to digital accounts and digital assets of the principal. The Act applies to digital accounts of Virginia residents and allows a fiduciary to obtain full access, partial access, or written copies of the digital asset. The Act includes powers for executors, administrators, agents acting under a power of attorney, legal guardians, and trustees. However, the digital information still may require proper documentation or a court order before granting access to account information despite the existence of the Act giving such fiduciary permission to access the digital account.
Financial Abuse and Exploitation of Adults
Under the current statutory framework, adult exploitation that must be reported to the department of social services or adult protective services is defined as illegal use of an adult or his resources. House Bill No. 1945 amends and broadens this definition to also include unauthorized, improper, or fraudulent activities or activities that deprive the adult of the rightful use or access of funds, property, benefits, resources, or other assets. The expanded definition clarifies that the following acts are reportable: intentional breach of a fiduciary obligation to the adults detriment, neglect resulting in the adults failure to use available financial resources, using undue influence, coercion, or duress to control the adults resources or property, and forcing or coercing an adult to pay for goods or services. Likewise, the amendments to Virginia Code 63.2-1605 increase the reporting requirements of social service departments and adult protective services for suspected instances of adult financial exploitation. Under the amendment, these agencies servicing older adults must refer suspected adult financial abuse to local law enforcement agencies.
Estate Planning Dont Wait
In addition to the Virginia legislation that will become effective this summer, we have all heard about the dramatic tax legislation that Congress intends to consider; however, you should be aware that there is no timetable for this legislation.It would be a mistake to delay in addressing your estate planning affairs in anticipation of what may or may not be contained in such legislation if and when it is passed. Members of our Private Client Services Group are available for consultations regarding the various legislative updates, contingencies, and their associated implications.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2020.