Bill Text: VA SB102 | 2024 | Regular Session | Chaptered
Bill Title: Wills and trusts; tangible personal property, nonexoneration.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2024-04-05 - Governor: Acts of Assembly Chapter text (CHAP0576) [SB102 Detail]
Download: Virginia-2024-SB102-Chaptered.html
Be it enacted by the General Assembly of Virginia:
1. That §§64.2-400 and 64.2-531 of the Code of Virginia are amended and reenacted as follows:
§64.2-400. Separate writing identifying recipients of tangible personal property; liability for distribution; action to recover property.
A. For the purposes of this section, "revocable," "settlor," "trustee," and "trust instrument" mean the same as those terms are defined in §64.2-701.
B. If a will or a trust instrument that was revocable immediately before the settlor's death refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator or settlor although it does not satisfy the requirements for a will or trust instrument. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.
B. C. The written statement or list may be (i)
referred to as one that is in existence at the time of the testator's or
settlor's death, (ii) prepared before or after the execution of the will
or trust instrument, (iii) altered by the testator or settlor at any
time, and (iv) a writing that has no significance apart from its effect on the
dispositions made by the will or trust instrument. When distribution is
made pursuant to such a written statement or list referred to in a will,
a copy thereof shall be furnished to the commissioner of accounts along with
the legatee's receipt.
C. D. A personal representative or trustee
shall not be liable for any distribution of tangible personal property to the
apparent legatee recipient under the testator's will or
trust instrument made without actual knowledge of the existence of a
written statement or list, nor shall he have any duty to recover property so
distributed. However, a person named to receive certain tangible personal
property in a written statement or list that is effective under this section
may recover that property, or its value if the property cannot be recovered,
from an apparent legatee recipient to whom it has been
distributed in an action brought for that purpose within one year after the
probate of the testator's will if such written statement or list was
referred to in a testator's will or within one year of the settlor's death if
such written statement or list was referred to in a trust instrument.
D. E. This section shall not apply to a writing
admitted to probate as a will and, except as provided herein, shall not
otherwise affect the law of incorporation by reference.
§64.2-531. Nonexoneration; payment of lien if granted by agent.
A. For the purposes of this section, "revocable," "settlor," "trustee," and "trust instrument" mean the same as those terms are defined in §64.2-701.
B. Unless a contrary intent is clearly set out in the
will, the trust instrument, or in a transfer on death deed, (i)
real or personal property that is the subject of a specific devise or bequest
in the will or the trust instrument that was revocable immediately before
the settlor's death or (ii) real property subject to a transfer on death
deed passes, subject to any mortgage, pledge, security interest, or other lien
existing at the date of death of the testator or settlor, without the
right of exoneration. A general directive in the will or trust instrument
to pay debts shall not be evidence of a contrary intent that the mortgage,
pledge, security interest, or other lien be exonerated prior to passing to the
legatee.
B. C. The personal representative may give
written notice to the creditor holding any debt to which subsection A
B applies that there is no right of exoneration for such debt pursuant to
this section. Such notice shall include a copy of this section. Any such notice
shall be sent by certified mail (i) to the address the creditor last provided
to the debtor as the address to which notices to the creditor are to be sent;
(ii) if the personal representative cannot reasonably determine the address to
which notices to the creditor are to be sent, to the address the creditor last
provided to the debtor as the address at which payments to the creditor are to
be made; or (iii) if the personal representative cannot reasonably determine
either the address to which notices to the creditor are to be sent or at which
payments to the creditor are to be made, to (a) the address of the creditor's
registered agent on file with the Virginia State Corporation Commission or (b)
if there is no such registered agent on file, to the creditor's last known
address. The creditor holding such debt may file a claim for such debt with the
commissioner of accounts pursuant to §64.2-552 on or before the later of one
year after the qualification of the personal representative of the decedent's
estate or six months after the personal representative gives such written
notice to the creditor. Once the personal representative has given notice to
the creditor as provided in this section, unless the creditor files a timely
claim against the estate as set forth in this subsection, the liability of a
personal representative or his surety for such debt shall not exceed the assets
of the decedent remaining in the possession of the personal representative and
available for application to the debt pursuant to §64.2-528 at the time the
creditor presents a demand for payment of such debt to the personal
representative. Nothing in this section shall affect either the liability of
the estate for such debt to the extent of the decedent's assets remaining at the
time a claim is filed or the liability of the beneficiaries that receive the
decedent's assets to the extent of such receipt.
In the event that any such claim is timely filed with the
commissioner of accounts, the personal representative shall give the specific
beneficiary receiving such real or personal property written notice, within 90
days after such claim is filed, to obtain from the creditor the release of the
estate from such claim. The notice to a beneficiary may be made to the personal
representative of a deceased beneficiary whose estate is a beneficiary, an
attorney-in-fact for a beneficiary, a guardian or conservator of an
incapacitated beneficiary, a committee of a convict or insane beneficiary, or
the duly qualified guardian of a minor or, if none exists, a custodial parent
of a minor. If the estate has not been released from such claim after the later
of 180 days from such notice or one year from qualification, the personal
representative may (a) (1) sell the real or personal property
that is the subject of a specific devise or bequest and that is also subject to
the claim, (b) (2) apply the proceeds of sale to the satisfaction
of the claim, and (c) (3) distribute any excess proceeds from
such sale of the specific beneficiary of such property. If the proceeds of such
sale are insufficient to satisfy the debt in full, the deficiency shall remain
a debt of the estate to be satisfied from the other assets of the estate in
accordance with applicable law. If such real property is subject to a transfer
on death deed and is also subject to the claim, the personal representative may
proceed as provided in §64.2-634 to enforce the liability for such claim
against such property.
C. D. Subsection A B shall not
apply to any mortgage, pledge, security interest, or other lien existing at the
date of death of the testator or settlor against any specifically
devised or bequeathed real or personal property, or any real property subject
to a transfer on death deed, that was granted by an agent acting within the
authority of a durable power of attorney for the testator or settlor
while the testator or settlor was incapacitated. For the purposes of
this section, (i) no adjudication of the testator's or settlor's
incapacity is necessary, (ii) the acts of an agent within the authority of a
durable power of attorney are rebuttably presumed to be for an incapacitated
testator or settlor, and (iii) an incapacitated testator or settlor
is one who is impaired by reason of mental illness, intellectual disability,
physical illness or disability, chronic use of drugs, chronic intoxication, or
other cause creating a lack of sufficient understanding or capacity to make or
communicate responsible decisions. This subsection shall not apply (a) if the
mortgage, pledge, security interest, or other lien granted by the agent on the
specific property is thereafter ratified by the testator or settlor
while he is not incapacitated or (b) if the durable power of attorney was
limited to one or more specific purposes and was not general in nature.
D. E. Subsection A B shall not apply
to any mortgage, pledge, security interest, or other lien existing at the date
of the death of the testator or settlor against any specific devise or
bequest of any real or personal property, or any real property subject to a
transfer on death deed, that was granted by a conservator, guardian, or
committee of the testator or settlor. This subsection shall not apply
if, after the mortgage, pledge, security interest, or other lien granted by the
conservator, guardian, or committee, there is an adjudication that the
testator's or settlor's disability has ceased and the testator or
settlor survives that adjudication by at least one year.
E. F. Nothing in this section shall affect the
priority of a secured debt with respect to the collateral securing such debt.
