Testamentary Trustee For A Decedent’s Estate

Trust Under Agreement

A trust under agreement is a trust created during the lifetime of the decedent. It is often referred to as a “living trust”. The significance of a trust under agreement as far as the Commissioner’s office is concerned is that there is no requirement for Court qualification of a trustee and no accounting is required to the Commissioner by the trustee unless there is a specific provision contained within the terms of the trust agreement requiring some form of accounting. It is extremely rare that a trust under agreement will require any accounting to the Commissioner of Accounts.

Testamentary Trust

A testamentary trust is a trust created under the terms of the decedent’s last will and testament. The office of the Commissioner of Accounts has jurisdiction over the administration of testamentary trusts unless waiver of trust accounts is authorized as follows:

  1. The will of the decedent was probated on or after July 1, 1993, contains a waiver of the obligations of the testamentary trustee nominated therein to account, and the trustee complies with Section 64.2-1307 B., Code of Virginia (1950), as amended; or
  2. For wills probated on or after July 1, 2010, which lack the waiver language, the beneficiaries consent in writing to a waiver of accounts and the trustee complies with Section 64.2-1307 F., Code of Virginia (1950), as amended; or
  3. If the “sole beneficiary” of the trust is also a trustee and trustee complies with 64.2-1307 F., Code of Virginia.

Note that the definition of a “sole beneficiary” is a person who is the only income beneficiary who is entitled to the principal or the principal goes to the trustee’s estate; or a person who is the only income beneficiary and has a general power of appointment over the principal or a special power of appointment that is not limited to a particular class of persons.

Please note, additionally, that formal action is required for the waiver to be effective. Where the will contains a waiver of accounts provision, compliance under the waiver section is required within 90 days of qualification as trustee. After the 90 day period, compliance with the statute may only be obtained by supplying to the Commissioner of Accounts written consents of the beneficiaries to the waiver of accounts under Section 64.2-1307 F., Code of Virginia.

Where the will was probated after July 1, 2010, and does not contain the waiver of accounts language, the only way waiver of accounts will be approved is upon the informed written consents of all beneficiaries in compliance with Section 64.2-1307 F., Code of Virginia, to be submitted with a check for $25.00 to, and approved by, the Commissioner.

If a trust filing deadline has been reached prior to compliance with the waiver requirements by a trustee, any filing then due with the Commissioner’s office shall be made. The waiver will only apply to future filing requirements.