WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced Senate Bill 836
By Senator Trump [Introduced February 16, 2024; referred to the Committee on the Judiciary]
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1 A BILL to amend and reenact §44D-1-103 of the Code of West Virginia, 1931, as amended; to
2 amend and reenact §44D-4-402 of said code; to amend and reenact §44D-5-503c of said
3 code; to amend and reenact §44D-7-701, §44D-7-704, and §44D-7-705 of said code; to
4 amend and reenact §44D-8B-2 of said code; and to amend and reenact §44D-10-1011 of
5 said code, all relating to permitting the electronic execution of trusts.
Be it enacted by the Legislature of West Virginia:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§44D-1-103. Definitions.
1 In this chapter:
2 (a) "Action", with respect to an act of a trustee, includes a failure to act.
3 (b) "Ascertainable standard" means a standard relating to an individual's health, education,
4 support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal
5 Revenue Code.
6 (c) "Beneficiary" means a person that:
7 (1) Has a present or future beneficial interest in a trust, vested or contingent;
8 (2) In a capacity other than that of trustee, holds a power of appointment over trust
9 property; or
10 (3) A charitable organization that is expressly designated in the terms of the trust
11 instrument to receive distributions.
12 (d) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose
13 described in §44D-4-405 of this code.
14 (e) "Conservator" means a person appointed by the court to administer the estate and
15 financial affairs of a protected person.
16 (f) "Court" means a court of this state having proper jurisdiction under §44D-2-203 of this
17 code, and venue under §44D-2-204 of this code.
18 (g) "Current beneficiary" means a beneficiary that, on the date the beneficiary's
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19 qualification is determined, is a distributee or permissible distributee of trust income or principal.
20 (h) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance
21 relating to protection of the environment.
22 (i) "Grantor" means a person, including a testator, who creates, or contributes property to a
23 trust. If more than one person creates or contributes property to a trust, each person is a grantor of
24 the portion of the trust property attributable to that person’s contribution except to the extent
25 another person has the power to revoke or withdraw that portion.
26 (j) "Guardian" means a person appointed by the court who is responsible for the personal
27 affairs of a protected person or a parent to make decisions regarding the support, care, education,
28 health, and welfare of a minor. The term does not include a guardian ad litem.
29 (k) "Interested person" means heirs, devisees, children, spouses, creditors, beneficiaries
30 and any others having a property right in or claim against a trust or the property in a trust. It also
31 includes persons having priority for appointment as personal representative and other fiduciaries
32 representing interested persons. The meaning as it relates to particular persons may vary from
33 time to time and must be determined according to the particular purposes of, and matter involved,
34 in any proceeding.
35 (l) "Interests of the beneficiaries" means the beneficial interests provided in the terms of the
36 trust.
37 (m) "Internal Revenue Code" or "Internal Revenue Code of 1986" has the same meaning
38 as when used in a comparable context in the laws of the United States then in effect relating to
39 income, estate, generation-skipping transfer and other taxes including all amendments made to
40 the laws of the United States and amendments which have been adopted and incorporated into
41 West Virginia law by the West Virginia Legislature in §11-21-9 of this code.
42 (n) "Jurisdiction" with respect to a geographic area, includes a state or country.
43 (o) "Person" means an individual, corporation, business trust, estate, trust, partnership,
44 limited liability company, association, joint venture, unincorporated nonprofit association,
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45 charitable organization, government, governmental subdivision, agency, or instrumentality, public
46 corporation, or any other legal or commercial entity.
47 (p) "Power of withdrawal" means a presently exercisable general power of appointment
48 other than a power:
49 (1) Exercisable by a trustee and limited by an ascertainable standard; or
50 (2) Exercisable by another person only upon consent of the trustee or a person holding an
51 adverse interest.
52 (q) "Property" means anything that may be the subject of ownership, whether real or
53 personal, legal or equitable or any interest therein.
54 (r) "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's
55 qualification is determined:
56 (1) Is a distributee or permissible distributee of trust income or principal;
57 (2) Would be a distributee or permissible distributee of trust income or principal if the
58 interests of the distributees described in paragraph (1) of this subdivision terminated on that date
59 without causing the trust to terminate; or
60 (3) Would be a distributee or permissible distributee of trust income or principal if the trust
61 terminated on that date.
62 (s) "Record" means information that is inscribed on a tangible medium or that is stored in
63 an electronic or other medium and is retrievable in perceivable form. A record does not include a
64 will of the grantor unless such will is duly admitted to probate
65 (s)(t) "Revocable", as applied to a trust, means revocable by the grantor without the
66 consent of the trustee or a person holding an adverse interest.
67 (u) "Sign" means, with present intent to authenticate or adopt a record:
68 (1) To execute or adopt a tangible symbol; or
69 (2) To attach to or logically associate with the record an electronic symbol, sound, or
70 process
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71 (t)(v) "Spendthrift provision" means a term of a trust which restrains both voluntary and
72 involuntary transfer of a beneficiary's interest.
73 (u)(w) "State" means a state of the United States, the District of Columbia, Puerto Rico, the
74 United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the
75 United States. The term includes an Indian tribe or band recognized by federal law or formally
76 acknowledged by a state.
77 (v)(x) "Terms of a trust" means:
78 (1) Except as otherwise provided in subparagraph (2); and the manifestation of the
79 grantor's intent regarding a trust's provisions as:
80 (A) Expressed in the trust instrument; or
81 (B) Established by other evidence that would be admissible in a judicial proceeding; or
82 (2) The trust's provisions as established, determined, or amended by:
83 (i) A trustee or trust director in accordance with applicable law;
84 (ii) A court order; or
85 (iii) A nonjudicial settlement agreement under §44D-1-111 of this code.
86 (w)(y) "Trust instrument" means a writing, including a will, executed will of the grantor
87 which is duly admitted to probate, or a record by the grantor that contains terms of the trust,
88 including any amendments thereto.
89 (x)(z) "Trustee" includes an original, additional, successor trustee and a cotrustee.
90 (y) "Writing" or "written instrument" does not include an electronic record or electronic
91 signature as provided in §39A-1-1 et seq. of this code ARTICLE 4. CREATION, VALIDITY, MODIFICATION AND TERMINATION OF TRUST.
§44D-4-402. Requirement for creation.
1 (a) Except as created by an order of the court, a trust is created only if:
2 (1) The grantor has capacity to create a trust;
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3 (2) The grantor indicates an intention, in writing a trust instrument, to create the trust;
4 (3) The trust has a definite beneficiary or is:
5 (A) A charitable trust;
6 (B) A trust for the care of an animal, as provided in section four hundred eight of this article;
7 or
8 (C) A trust for a noncharitable purpose, as provided in section four hundred nine, article
9 four of this chapter;
10 (4) The trustee has duties to perform; and
11 (5) The same person is not the sole trustee and sole beneficiary.
12 (b) A beneficiary is definite if the beneficiary can be ascertained now or in the future,
13 subject to any applicable rule against perpetuities.
14 (c) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power
15 is not exercised within a reasonable time, the power fails and the property subject to the power
16 passes to the persons who would have taken the property had the power not been conferred.
17 (d) Notwithstanding the foregoing:
18 (1) In accordance with the provisions of section eight, article three of chapter forty-one of
19 this code, a trust is valid regardless of the existence, value or character of the corpus of the trust.
20 (2) The grantor need not have capacity to create a trust if the trust is created in writing a
21 record during the grantor's lifetime by the grantor's agent acting in accordance with authority
22 granted under a durable power of attorney which expressly authorizes the agent to create a trust
23 on the grantor's behalf.
24 (e) A trust is not invalid or terminated, and title to trust assets is not merged, because the
25 trustee or trustees are the same person or persons as the beneficiaries of the trust.
ARTICLE 5. CREDITOR'S CLAIMS; SPENDTHRIFT AND DISCRETIONARY TRUSTS.
§44D-5-503c. Vacancies; revocability of trust; right to withdraw.
1 (a) A vacancy in the position of qualified trustee that occurs for any reason, whether or not
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2 there is then serving another trustee, shall be filled in the following order of priority:
3 (1) By a person eligible to be a qualified trustee and who is designated pursuant to the
4 terms of the trust instrument to act as successor trustee;
5 (2) By a person eligible to be a qualified trustee and who is designated by unanimous
6 agreement of the qualified beneficiaries; or
7 (3) By a person eligible to be a qualified trustee and who is appointed by the court pursuant
8 to any of the provisions of article seven of this chapter.
9 (b) A vacancy in the position of independent qualified trustee that occurs for any reason,
10 whether or not there is then serving another trustee, shall be filled in the following order of priority:
11 (1) By a person eligible to be an independent qualified trustee and who is designated
12 pursuant to the terms of the trust instrument to act as successor trustee; or
13 (2) By a person eligible to be an independent qualified trustee and who is designated by
14 unanimous agreement of the qualified beneficiaries; or
15 (3) By a person eligible to be an independent qualified trustee and who is appointed by the
16 court pursuant to any of the provisions of article seven of this chapter.
17 (c) A trust instrument shall not be deemed revocable on account of the inclusion of any one
18 or more of the following rights, powers, and interests:
19 (1) A power of appointment, exercisable by the grantor by will or other written instrument
20 record effective only upon the grantor's death, other than a power to appoint to the grantor's estate
21 or the creditors of the grantor's estate;
22 (2) The grantor's qualified interest in the trust;
23 (3) The grantor's right to receive income or principal pursuant to an ascertainable standard;
24 (4) The grantor’s potential or actual receipt of income or principal from a charitable
25 remainder unitrust or charitable remainder annuity trust (each within the meaning of Section
26 664(d) of the Internal Revenue Code) and the grantor's right, at any time, and from time to time, to
27 release, in writing a record delivered to the qualified trustee, all or any part of the grantor's retained
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28 interest in such trust;
29 (5) The grantor's receipt each year of a percentage, not to exceed five percent, specified in
30 the trust instrument of the initial value of the trust assets or their value determined from time to time
31 pursuant to the trust instrument;
32 (6) The grantor's right to remove a qualified trustee or independent qualified trustee and to
33 appoint a new trustee who meets the same criteria;
34 (7) The grantor's potential or actual use of real property held under a personal residence
35 trust (within the meaning of Section 2702(c) of the Internal Revenue Code);
36 (8) The grantor's potential or actual receipt or use of a qualified annuity interest (within the
37 meaning of Section 2702 of the Internal Revenue Code);
38 (9) The ability of a qualified trustee, whether pursuant to discretion or direction, to pay, after
39 the grantor's death, all or any part of the grantor's debts outstanding at the time of the grantor's
40 death, the expenses of administering the grantor's estate, or any federal or state estate,
41 inheritance, or death tax imposed on or with respect to the grantor's estate; and
42 (10) A grantor's potential or actual receipt of income or principal to pay, in whole or in part,
43 income taxes due on trust income, or the direct payment of such taxes to the applicable tax
44 authorities, pursuant to a provision in the trust instrument that expressly provides for the direct
45 payment of such taxes or the reimbursement of the grantor for such tax payments.
46 (d) A beneficiary who has the right to withdraw his or her entire beneficial interest in a trust
47 shall be treated as its grantor to the extent of such withdrawal right, when such right to withdraw
48 has lapsed, been released, or otherwise expired, without regard to the limitations otherwise
49 imposed by subsection (b), section five hundred five of this article.
ARTICLE 7. OFFICE OF THE TRUSTEE.
§44D-7-701. Accepting or declining trusteeship.
1 (a) Except as otherwise provided in subsection (c) of this section, a person designated as
2 trustee accepts the trusteeship:
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3 (1) By substantially complying with a method of acceptance provided in the terms of the
4 trust instrument; or
5 (2) If the terms of the trust instrument do not provide a method or the method provided in
6 the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising
7 powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship
8 including by signing a written instrument record so stating.
9 (b) A person designated as trustee who has not yet accepted the trusteeship may reject the
10 trusteeship. A person designated as trustee who does not accept the trusteeship within a
11 reasonable time after knowing of the designation is deemed to have rejected the trusteeship.
12 (c) A person designated as trustee, without accepting the trusteeship, may:
13 (1) Act to preserve the trust property if, within a reasonable time after acting, the person
14 sends a rejection of the trusteeship to the grantor or, if the grantor is dead or lacks capacity, to a
15 qualified beneficiary; and
16 (2) Inspect or investigate trust property to determine potential liability under environmental
17 or other law or for any other proper purpose.
§44D-7-704. Vacancy in trusteeship; appointment of successor.
1 (a) A vacancy in a trusteeship occurs if:
2 (1) A person designated as trustee rejects the trusteeship;
3 (2) A person designated as trustee cannot be identified or does not exist;
4 (3) A trustee resigns;
5 (4) A trustee is disqualified or removed;
6 (5) A trustee dies; or
7 (6) A guardian or conservator is appointed for an individual serving as trustee.
8 (b) If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled,
9 unless otherwise provided in the terms of the trust instrument. A vacancy in a trusteeship must be
10 filled if the trust has no remaining trustee.
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11 (c) Unless otherwise provided in the terms of the trust instrument, a vacancy in a
12 trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of
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