To create a revocable trust under Virginia law, the settlor must be:
- At least 18 years old or an emancipated minor
- Of sound mind
What Is the Age Requirement To Create a Revocable Trust Under Virginia Law?
In Virginia, the same age requirement exists to be able to create a revocable trust or a valid will under Virginia law. Virginia Code § 64.2-750. The settlor of the revocable trust must be at least 18 years old or an emancipated minor. Virginia Code § 64.2-401(B).
What Is The Standard For Mental Capacity To Create a Revocable Trust?
Under Virginia law, the standard for a settlor’s mental capacity to create a revocable trust is the same as the capacity required for a testator to create a valid will.
The standard for testamentary capacity in Virginia requires that a settlor:
- Understand the nature of the business in which he is engaged;
- Recollect the property he is disposing of;
- Know the objects of his bounty; and,
- Hold these things in his mind long enough to observe their relations to each other and form a rational judgment in relation to them.
Lester v. Simpkins, 83 S.E. 1062 (Va. 1915).
Can Someone Under a Guardianship Create a Revocable Trust In Virginia?
Yes. It is possible that an individual may be competent to create a revocable trust under Virginia law if they are under a guardianship.
Gilmer v. Brown, 44 S.E.2d 16, 19 (Va. 1947).
Can a Guardian Create a Revocable Trust On Behalf Of a Ward?
Yes. A guardian or conservator may create a revocable trust for a ward under Virginia law after court approval. Pursuant to Virginia Code § 64.2-719 a conservator acting in accordance with § 64.2-2023 may create a trust.
Pursuant to section 64.2-2023, the court may authorize a conservator to “create a revocable or irrevocable trust on behalf of an incapacitated person with terms approved by the court or transfer assets of an incapacitated person or an incapacitated person’s estate to a trust.” The court is required to determine the amounts, recipients, and proportions of any gifts of the estate, the advisability of any disclaimer, whether good cause exists to create a trust or transfer assets, and whether to approve the trust terms after considering
- the size and composition of the estate;
- the nature and probable duration of the incapacity;
- the effect of the gifts, disclaimers, trusts, or transfers on the estate’s financial ability to meet the incapacitated person’s foreseeable health, medical care, and maintenance needs;
- the incapacitated person’s estate plan and the effect of the gifts, disclaimers, trusts, or transfers on the estate plan;
- prior patterns of assistance or gifts to the proposed donees;
- the tax effect of the proposed gifts, disclaimers, trusts, or transfers;
- the effect of any transfer of assets or disclaimer on the establishment or retention of eligibility for medical assistance services;
- whether to require, during the lifetime of the incapacitated person, that the trustee of any trust created or funded pursuant to this section post bond, with or without surety, or provide an accounting as set forth in § 2-1305; and
- other factors that the court may deem relevant.
Can an Agent Under a Power of Attorney Create a Revocable Trust?
Under Virginia law, an agent under a power of attorney may create a revocable trust for the principal’s benefit if the power of attorney expressly authorizes the agent to do so. Virginia Code § 64.2-719 and § 64.2-720.