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NEWSLETTER
Trusts and Estates
Published by the Virginia State Bar Trusts and Estates Section for its members
Volume 25, No. 1 Spring/Summer 2021
Message from the Chair my child on the account” without understanding what
Carter R. Brothers the client just did? The importance of reviewing these
rules with your clients and double- or triple-checking
Welcome to the Spring 2021 edition of the Virginia the exact titling of their accounts cannot be overstated,
State Bar Trusts and Estates Section Newsletter. On and Carissa’s refresher on these rules is must reading
behalf of the Board of Governors of the Virginia State for all trusts and estates lawyers.
Bar Trusts and Estates Section, I thank you for reading As my term as Chair of our Section comes to a
our newsletter and hope it will inform and strengthen close, I regret we could not meet in person for the 2021
your practice. Our Newsletter team of Editor Kevin VSB Annual Meeting and share the ups and downs
Stemple and Assistant Editor Brooke C. Tansill has put from the prior year. Be on the lookout, however, for
together another newsletter during a pandemic (which I the Summer Virginia Lawyer, which will feature our
hope will be the last of that kind). Section with more articles to inform and strengthen
The past 18 months have revealed just how uncer- your trusts and estates practice. As always, the Board
tain our lives really are. While we tax practitioners of Governors welcomes your suggestions for future
have lived with the uncertainty over tax laws for the Section activities, CLE topics, and newsletter topics.
past twenty years, we all have now experienced the I have been honored to serve with the other talented
uncertainty over our own health and political systems. members of the Board and now pass the torch on to
Caitlin Orr and Travis Harrison have written an article Trey Parker and wish him (and you) all the best for the
appropriately called “Disclaimer Planning in Uncertain coming year. Please contact me, Trey, or any Board
Times under the Virginia Uniform Disclaimer of member with your suggestions. Our contact informa-
Property Interests Act.” Disclaimers provide clients tion may be found on the last page of the Newsletter
with an important tool to address the uncertainty inher- or on our Section website at http://www.vsb.org/site/
ent in estate planning, and the authors show how with sections/trustsandestates/te-boardof-governors. S
thoughtful planning and careful drafting you can help
your clients take advantage of certain unique features of
Virginia’s disclaimer rules.
Our second article also, in its own way, discusses TABLE OF CONTENTS
how Virginia law can help reduce uncertainty over Disclaimer Planning in Uncertain Times Under the
potential creditors of our clients. Ann H. Larkin’s Virginia Uniform Disclaimer of Property Interests Act
article illustrates how a qualified self-settled spendthrift Caitlin Orr, Travis Harrison ................................ 2
trust (try saying that five times fast) established under
Virginia’s statutory requirements can provide the right Protecting Clients from Their Creditors: Self-Settled
client with a useful asset protection component of his or Spendthrift Trusts
her or their estate plan. Ann H. Larkin ................... ...................................... 8
Rounding out our newsletter is Carissa L. Peterson’s
Revisiting the Multiple-Party Accounts Act
article on Virginia’s Multi-Party Accounts Act and the Carissa L. Peterson ................................................ 12
often-unintended complications these accounts create
within our client’s estate plan. How many of us have Board of Governors.................................................15
had a client (often a widower or widow) tell us “I put
The Trusts and Estates Newsletter is published by the Virginia State Bar Section on Trusts and Estates for its members to provide information to attorneys practicing in
these areas. Statements, expressions of opinion, or comments appearing herein are those of the contributors and not necessarily those of the Virginia State Bar or the
Section on Trusts and Estates.Spring/Summer 2021 Trusts & Estates Newsletter
Disclaimer Planning in Uncertain Times
Under the Virginia Uniform Disclaimer
of Property Interests Act
By Caitlin Orr and Travis Harrison
Many wealthy individuals made irrevocable gifts — including trustees, personal representatives, agents
in trust in the fourth quarter of 2020 to take advantage acting under a power of attorney, and others “autho-
of historically high federal transfer tax exemptions. rized to act as a fiduciary with respect to the prop-
Others have done so or will do so in 2021. For a erty of another person”5 — broad power to disclaim
variety of reasons, they might experience donor’s interests in or powers over property, even if the donor
remorse. Gifted property may decline in value sig- imposed a spendthrift provision or other restriction or
nificantly, resulting in “wasted” federal transfer tax limitation on the right to disclaim.6
exemptions. The value of the donor’s retained assets
may decline significantly, causing her to regret the Effect of Disclaimers
extent of her generosity. Congress may enact leg- Generally, a disclaimer will be “qualified” for
islation imposing retroactive tax hikes on gift trans- federal transfer tax purposes only if the disclaimed
fers that have already occurred.1 The donor may interest passes without any direction on the part of the
die unexpectedly, leaving donee beneficiaries worse disclaimant to someone other than the disclaimant.7
off economically than if the gifted assets had ben- If the goal is for disclaimed property to revert to the
efited from a basis adjustment at the donor’s death.2 donor in order to negate the federal transfer tax con-
Whatever the reason, under the right circumstances sequences of a gift,8 it is important to confirm that
it may be possible through one or more qualified3 result will obtain. For those reasons, it is critical to
disclaimers to unwind a gift transaction in whole or understand the effect of a disclaimer under the provi-
in part, including for federal transfer tax purposes4, sions of the Act and the governing instruments.
especially with thoughtful advance planning and 1. Disclaimers by Individuals, or by Fiduciaries
careful drafting to take advantage of certain unique on their Behalf
features of Virginia law. For those with unused fed- The Act confirms that property disclaimed by
eral transfer tax exemptions remaining, disclaimers individual beneficiaries will revert to the donor if the
may present planning opportunities, as discussed trust instrument contains a provision expressly direct-
toward the end of this article. ing that result.9 If the instrument is silent regarding
disposition of a disclaimed interest, the Act says the
Who May Disclaim? disclaimed interest passes as if the disclaimant had
In Virginia, disclaimers of interests in and powers died immediately before the transfer would have
over property are governed by the Virginia Uniform taken effect in possession or enjoyment.10 Upon
Disclaimer of Property Interests Act, codified at VA a disclaimer of a preceding interest in trust, future
Code Ann. 64.2-2600 to 64.2-2614 (the “Act”). The interests held by persons other than the disclaimant
Act is based on the Uniform Disclaimer of Property are accelerated in possession or enjoyment.11 In all
Interests Act (1999) (“UDPIA”), with certain modi- events, disclaimers by individual beneficiaries take
fications. The Act gives individuals and fiduciaries effect as of the time the instrument creating the sub-
page 2Spring/Summer 2021 Trusts & Estates Newsletter
ject interests became irrevocable.12 Often the donor minor, but only with court approval and only if such
renounces, by express provision in the trust instru- disclaimer will serve the minor’s best interests.23 A
ment, all reversionary interests in gifted assets, to guardian might expect to face difficulty convincing a
avoid inclusion in the donor’s gross estate. In those court that a proposed disclaimer is in a minor’s best
cases, absent an overriding trust provision expressly interests, but it appears courts can be persuaded.24
directing a reversion of disclaimed property to the At least twice the IRS has argued in Tax Court that
donor, it may be impossible to achieve the desired court-approved disclaimers on behalf of minors were
result. not in the minors’ best interests, and were therefore
The Act treats a valid disclaimer by a fiduciary invalid under Bosch principles, and in both cases the
who is authorized to act with respect to a benefi- taxpayer prevailed.25 The IRS has ruled privately
ciary’s property as a disclaimer by the beneficiary that disclaimers by guardians on behalf of minors
being represented.13 For federal transfer tax pur- were qualified for federal tax purposes.26 In situa-
poses, Treasury Regulations under IRC § 2518 tions where all trust beneficiaries are minors, there is
contemplate and permit qualified disclaimers by more time for engaging in disclaimer planning, due to
“legal representative[s]” on behalf of disclaimants.14 a special rule extending the time period for qualified
Neither the IRC nor applicable Treasury Regulations disclaimers until nine months after the disclaimant
define “legal representative” for this purpose, but attains age twenty-one.27
the term has been construed to include a personal As a practical matter, in all but the simplest of
representative acting on behalf of a decedent15, a trust arrangements, and in all but the most coopera-
duly appointed attorney-in-fact expressly authorized tive of families, it will be difficult, if not impossible,
under a power of attorney to disclaim on behalf of a to obtain timely disclaimers from all beneficiaries.
principal16, and a court-appointed conservator17 or To overcome that difficulty, commentators suggest
guardian18 on behalf of an incompetent or minor. that the donor (in the trust agreement) designate and
A fiduciary’s power to disclaim may be validly empower one or more specific beneficiaries to make
restricted by express provision in another Virginia a qualified disclaimer on behalf of all beneficiaries.28
statute or in the instrument creating the fiduciary
relationship.19 For example, Virginia’s Uniform 2. Disclaimers by Trustees
Power of Attorney Act allows an attorney-in-fact to Separate rules apply for disclaimers by trustees.
disclaim on behalf of a principal only if the language Under the Act, a property interest disclaimed by a
of the power of attorney confers that authority, but trustee will revert to the donor in the absence of a
not otherwise.20 Another Virginia statute requires trust provision expressly directing a different disposi-
court approval of disclaimers by conservators on tion or prohibiting the trustee from disclaiming the
behalf of incompetent adults.21 In the case of a interest.29 The Act’s plain language appears to give
transfer in trust, the trust agreement may be separate trustees unlimited authority to disclaim on behalf of
and distinct from the instrument creating the fiduciary beneficiaries, without their knowledge or consent,
relationship (e.g., a trustee appointment instrument). but a disclaiming trustee remains bound by, and must
The planner must consult all such instruments to adhere to, all applicable fiduciary duties of trustee-
determine the existence and extent of restrictions on ship.30 A Trustee may struggle to conclude or defend
the fiduciary’s power to disclaim. its position that a disclaimer of trust property is in the
The Act specifically authorizes representative best interests of the beneficiaries. One commentator
disclaimers by custodial parents on behalf of minor suggests that fiduciary concerns could be mitigated if
children, without court approval, in limited circum- the donor expressly provides in the trust agreement
stances: where a minor child would receive property that a trustee disclaimer to the extent necessary to
(or a beneficial interest in property) only because avoid federal transfer tax will not constitute a breach
of another’s disclaimer.22 It appears that a court- of the trustee’s fiduciary duties.31
appointed guardian may disclaim on behalf of a
page 3Spring/Summer 2021 Trusts & Estates Newsletter
Formalities in certain trust assets, but not others, partial disclaim-
To be effective, a disclaimer must satisfy all ers may be considered. The Act expressly permits
applicable formalities. The Act requires that dis- partial disclaimers of interests in property, including
claimers be in writing “or other record,” declare the but not limited to disclaimers expressed as a frac-
disclaimer, describe the interest or power disclaimed, tion, percentage, or monetary amount of the subject
be signed by the person making the disclaimer, and property interest.40 Partial disclaimers with respect
be delivered or filed in the manner provided in VA to one or more particular trust assets are valid.41 For
Code Ann. §64.2-2610.32 “Record” for this purpose federal transfer tax purposes, Treasury Regulations
means information that is inscribed on a tangible under IRC § 2518 contemplate and permit a quali-
medium or that is stored in an electronic or other fied disclaimer of specific trust assets, provided that,
medium and is retrievable in perceivable form. This as a result of the disclaimer, the assets are removed
language parrots that of the UDPIA and was intended from the trust and pass, without any direction by the
to allow disclaimers executed in electronic form, but disclaimant, to someone other than the disclaimant.42
only disclaimers “in writing” can be qualified under
IRC § 2518.33 Disclaimer Planning in 2021
Disclaimers also present planning opportunities
Acceptance for those who have unused transfer tax exemptions
To preserve the option to “unwind” a gift by dis- subject to the December 31, 2025 “sunset” under
claimer, the trustee must be mindful to avoid taking the Tax Cuts and Jobs Act, or sooner reduction if
actions that could cause the trustee or a beneficiary Democratic tax proposals43 become effective.
to be deemed to have “accepted” an interest in the Assume a happily married couple wants to utilize
gifted property. A person who has “accepted the remaining exemptions, but is nervous about the threat
interest sought to be disclaimed” cannot effectively of retroactive tax hikes on gifts made during 2021.44
disclaim that interest under the Act; acceptance will One could transfer assets today to a trust for the bene-
cause the purported disclaimer to be treated as a fit of the other (who must be a U.S. citizen) that meets
transfer by the purported disclaimant to the persons the requirements of IRC § 2523(e) and thus quali-
who would have taken had the disclaimer not been fies for the gift tax marital deduction. Assume that
barred.34 Similarly, a disclaimer will not be qualified the effect of a disclaimer by the beneficiary spouse,
if the disclaimant has accepted the interests or any of under the Act and the governing instrument, would
its benefits, expressly or impliedly, prior to making be to accelerate distribution of disclaimed assets to
the disclaimer.35 Applicable Treasury Regulations a separate discretionary trust benefitting the couple’s
provide examples of what constitutes acceptance for descendants. The beneficiary spouse’s qualified dis-
purposes of IRC § 2518, such as using the property claimer of all powers over and interests in the trust
(or an interest therein), accepting dividends, interest, would trigger a completed gift that relates back to the
or rents, directing others to act with respect to the date of transfer, giving the couple until early 2022 to
property,36 or accepting consideration for making decide whether donor spouse’s gift makes sense.45
the disclaimer.37 Applicable regulations provide Nonqualified disclaimers also present planning
a special acceptance of benefits rule in the case of opportunities, which may be especially relevant for
persons who have not attained age twenty-one: any trust beneficiaries who have unused transfer tax
actions taken with regard to an interest in property by exemptions and are not concerned about the threat of
a beneficiary or custodian prior to the beneficiary’s retroactive tax hikes on gifts made during 2021.
twenty-first birthday will not constitute acceptance Suppose, for example, Child is a beneficiary of
by the beneficiary.38 If an act does not constitute an irrevocable trust created under Parent’s will, over
acceptance for purposes of IRC § 2518, it should not which Child has a testamentary general power of
constitute acceptance under the Act.39 appointment that will cause inclusion in her gross
If a beneficiary or trustee has accepted an interest estate at death, or that that is not subject to inclusion
page 4Spring/Summer 2021 Trusts & Estates Newsletter
in Child’s estate but has an inclusion ratio for GST Caitlin M. Orr is a partner with McDermott, Will &
purposes of one and will be subject to a taxable ter- Emery LLP. Caitlin focuses her practice on private
mination at Child’s death. Assume that the effect of a client matters. She advises clients on all aspects of
disclaimer by Child, under the Act and the governing estate and wealth transfer planning, and on a broad
instrument, would be a division of the trust property range of tax issues, including income, gift and estate
into separate trusts for the Child’s descendants, per tax planning for individuals, businesses and chari-
stirpes. Further assume that Child has not used any table organizations. Caitlin has significant experi-
portion of her federal gift and GST exemptions avail- ence analyzing estate, gift and generation-skipping
able under current law, and does not have access to transfer taxation matters, counseling individuals and
other more suitable assets for lifetime gifting. Child their families concerning their wealth management
could disclaim all or a portion of her beneficial inter- and estate planning needs, preparing wills and trust
est in the trust, including any powers of appointment, agreements, probating estates, and advising fidu-
thereby triggering an immediate taxable gift in order ciaries in connection with administration of trusts
to “use up” all or a portion of her federal gift and GST and estates. Caitlin graduated with a B.B.A. from
tax exemptions before they expire. As noted above, the University of Georgia, received her Master of
there is no time requirement for making a disclaimer Accountancy (MAcc) from the University of Georgia,
under the Act. and received her J.D. from Emory University, School
It is irrelevant whether Child received distribu- of Law.
tions from the trust or otherwise accepted benefits of
trust property prior to disclaiming. As noted above, Travis Harrison is a Partner in the Washington, D.C.
prior acceptance bars a disclaimer under the Act, but office of McDermott Will & Emery LLP. As a mem-
the purported disclaimer is treated as a transfer by the ber of the firm’s Private Client group, his practice
purported disclaimant to the persons who would have involves advising individuals and families on estates,
taken had the disclaimer not been barred.46 This is trusts, wealth transfer and tax planning needs. He
exactly the result that Child wants in order to use fed- graduated with a B.A. degree from Brigham Young
eral transfer tax exemptions that might otherwise be University and received his J.D. degree from the
wasted. University of Virginia.
Conclusion Summary: This article discusses how, under the right
Disclaimer planning is often an afterthought or circumstances, it may be possible through one or more
even overlooked. But disclaimers, both qualified and qualified disclaimers to unwind a gift transaction in
nonqualified, can be an effective planning tool during whole or in part, including for federal transfer tax
uncertain times. Drafting with specific features of the purposes, especially with thoughtful advance plan-
Act in mind better positions clients to seize tax plan- ning and careful drafting to take advantage of certain
ning opportunities. S unique features of Virginia law. It also discusses
how disclaimers may present planning opportunities
for those with unused federal transfer tax exemptions
remaining. X
(Endnotes)
1. On March 29, 2021, Senator Chris Van Hollen introduced
a bill that would tax unrealized gains on property transferred
by gift on or after January 1, 2021 (including transfers to
grantor trusts not includible in the grantor’s gross estate, and to
nongrantor trusts), or upon the death of a decedent dying after
December 31, 2020. Sensible Taxation and Equity Promotion
(STEP) Act of 2021, S. ____, 117th Congress (2021) (discus-
sion draft available at https://www.vanhollen.senate.gov/imo/
page 5Spring/Summer 2021 Trusts & Estates Newsletter
media/doc/STEP%20Act%20discussion%20draft.pdf). expressly allowed a principal (i.e., the personal representative)
2. This scenario assumes a basis adjustment will be available to confer authority to disclaim on an agent in express terms,
under the laws in effect at the decedent’s death. See supra note written or oral.)
1. 15. Treas. Reg. § 25.2518-1(b).
3. A “qualified” disclaimer is one that meets all requirements 16. See, e.g., PLR 9015017.
of IRC § 2518. We assume the reader is generally familiar 17. See, e.g., Estate of Goree, Jr., 68 TCM 123 (1994), nonacq.
with those requirements and do not discuss them in detail here, 1996-1 CB 1.
though we mention those of particular relevance to this discus- 18. See, e.g., PLR 200303020.
sion. To be a “qualified” disclaimer, federal law requires, inter 19. See supra note 6.
alia, that a written disclaimer be delivered within 9 months 20. Va. Code Ann. § 64.2-1632(B)(8). A general grant of
after the later of (i) the date of the transfer creating the interest authority to act with respect to trusts and beneficial interests is
in the disclaimant, or (ii) the disclaimant attaining age twenty- sufficient.
one. IRC § 2518(b)(2). Virginia law, in contrast, imposes no 21. Va. Code Ann. § 64.2-2023(A). Va. Code Ann. § 64.2-
time limit within which a disclaimer must be made. References 2023(C) sets forth factors for a court to consider in determining
herein to the “IRC” are to sections of the Internal Revenue Code the advisability of a disclaimer by a conservator.
of 1986, as amended. References to “Treas. Reg. §” are to sec- 22. Va. Code Ann. § 64.2-2023(C).
tions of the Treasury Regulations. 23. Va. Code Ann. § 64.2-1805(A)(5) authorizes a guardian
4. If a person makes a qualified disclaimer, the disclaimed to take any action that will serve the best interests of the minor.
interest in property is treated for purposes of the federal estate, The fact that Va. Code Ann. § 64.2-2023(C) dispenses with the
gift and generation-skipping transfer (“GST”) tax provisions as requirement of court approval in the case of a representative
if it had never been transferred to the disclaimant. It is treated, disclaimer by a custodial parent suggests that court approval is
instead, as passing directly from the transferor of the property required for other disclaimers on behalf of minors.
to the person entitled to receive the property as a result of the 24. See e.g., Estate of Goree, Jr., 68 TCM 123 (1994), nonacq.
disclaimer (i.e., the transferor if the disclaimer triggers a rever- 1996-1 CB 1; Estate of Lassiter, TC Memo 2000-324.
sion). If a disclaimer is qualified, the disclaimant is not treated 25. Id.
as making a taxable gift. Treas. Reg. § 25.2518-1(b). 26. See e.g., PLRs 200303020, 200130034.
5. A conservator of an incapacitated adult presumably would 27. IRC § 2518(b)(2)(B).
fall within this catchall provision. See infra note 14. 28. See David A. Handler & Kevin M. Chen, Formula Dis-
6. Va. Code Ann. §§ 64.2-2600, -2603(A), -2603(B). claimers: Proctor-Proofing Gift Revaluations by IRS, J. Tax’n,
7. IRC § 2518(b)(4)(A). The only exception is that property Vol. 96, No. 4, April 2002; Steve R. Akers, Transfer Planning in
disclaimed by a surviving spouse can pass to or for the spouse’s 2021, Including Transfers in Anticipation of Possible Retroac-
benefit. tive Transfer Legislation (February 2021), but see Ed Morrow,
8. Applicable Treasury Regulations confirm that a donor is How Donees Can Hit the Undo Button on Taxable Gifts, Leim-
not treated as having made a gift transfer for federal tax pur- berg Estate Planning Newsletter #2831 (Oct. 19, 2020) (hypoth-
poses if, as a result of a qualified disclaimer, there is no transfer esizing that all owners of all interests in trust must disclaim,
of property. Treas. Reg. §§ 25.2511-1(c)(1), 25.2518-1(b). including current and remainder beneficiaries, in order to undo
9. Va. Code Ann. § 64.2-2604(B)(2). the federal transfer tax consequences of a gift, because a person
10. Va. Code Ann. § 64.2-2604(B)(3)(a). “cannot disclaim more than she receives.”)
11. Va. Code Ann. § 64.2-2604(B)(4). 29. Va. Code Ann. § 64.2-2606; Comment to Section 8 of the
12. Va. Code Ann. § 64.2-2604(B)(1). UDPIA (“The instrument under which the right to receive the
13. Personal representatives, agents acting under a power of property was created may govern the disposition of the trust
attorney, and other persons authorized to act as a fiduciary with property in the event of a disclaimer [by a trustee] by providing
respect to the property of another person are “fiduciaries” under for a disposition when the trust does not exist. When the instru-
the Act. Va. Code Ann. § 64.2-2600. Virginia courts may, for ment does not make such a provision, the doctrine of resulting
good cause shown, authorize a duly appointed conservator to trust will carry the property back to the donor.”)
disclaim on behalf of an incapacitated adult. Va. Code Ann. § 30. See Va. Code Ann. § 64.2-703(B)(2) (providing that the
64.2-2023(A). A disclaimer of a right to property by a fiduciary duty of a trustee to act in good faith and in accordance with the
acting on behalf of an individual, such as a personal representa- terms and purposes of the trusts and the interests of the benefi-
tive, conservator, guardian or agent is governed by Va. Code ciaries is a mandatory rule that cannot be overridden by contrary
Ann. § 64.2-2604(B)(2) and will pass in the same manner as provision in the governing instrument); Comment to Section
if the disclaimer were made by the individual beneficiary on 4 of the UDPIA (“the disclaiming trustee must still adhere to
whose behalf the fiduciary is disclaiming. See Comment to Sec- all applicable fiduciary duties.”) According to the Restatement
tion 8 of the UDPIA. (Third) of Trusts:
14. Treas. Reg. § 25.2518-2(b)(1). See also Estate of Allen [I]n exercising the power to relinquish trust property
v. Comm’r, 56 TCM 1494 (TC Memo 1989-111) (concluding or powers, the trustee must act in a manner that is con-
that a disclaimer by a lawyer acting on oral instructions of a sistent with other fiduciary duties of trusteeship. Thus,
personal representative was qualified where applicable state law the trustee must exercise reasonable care and skill, with
expressly allowed disclaimers by personal representatives and competent financial, tax and legal (e.g., environmen-
page 6Spring/Summer 2021 Trusts & Estates Newsletter
tal, tort, or trust law) advice as needed, to determine:
whether and for what purposes action may be needed
(and whether the concerns can be cured by reformation
or actions of beneficiaries individually); the manner
and extent of relinquishment appropriate to the concern
or objective in question; the effects the contemplated
action would have on various interests and benefi-
ciaries of the trust or another trust, or of the settlor’s
estate, and other facts and considerations of relevance.
Restatement (Third) of Trusts section 86 Reporter’s Notes to
cmt. f.
31. Akers, p. 25.
32. Va. Code Ann. § 64.2-2604(B)(2).
33. IRC § 2518(b)(3); Treas. Reg. § 25.2518-2(d).
34. Va. Code Ann. § 64.2-2611(B), (F).
35. IRC Sec. 2518(b)(3); Treas. Reg. § 25.2518-2(d).
36. Treas. Reg. § 25.2518-2(d)(1). It is not clear what actions
by a trustee constitute acceptance. Applicable regulations tell
us that merely taking delivery of an instrument of title, without
more, does not constitute acceptance. Treas. Reg. § 25.2518-
2(d)(1).
37. Id., Treas. Reg. § 25.2518-2(d)(4), Example 2, but see
Estate of Monroe v. Comm’r, 104 T.C. 352 (1995), rev’d by 124
F. 3d 699 (5th Cir. 1997) (concluding that “[a] disclaimant’s
mere expectation of a future benefit in return for executing a
disclaimer will not render it ‘unqualified,’” and that “the correct
standard requires a finding whether there was actual bargained-
for consideration for the disclaimers.”)
38. Treas. Reg. § 25.2518-2(d)(3).
39. Va. Code Ann. § 64.2-2612. This provision coordinates
the Act with requirements of a qualified disclaimer under IRC §
2518. Any disclaimer that is qualified for federal tax purposes
is a valid disclaimer under the Act even if it does not otherwise
meet the Act’s more specific requirements.
40. Va. Code Ann. § 64.2-2603(E).
41. Id.
42. Treas. Reg. § 25.2518-3(a)(2); § 25.2518-3(d), Examples
(5) and (6).
43. On March 25, 2021, Senator Bernie Sanders introduced a
bill that would reduce the estate tax exemption to $3,500,000
and the gift tax exemption to $1,000,000 beginning January 1,
2021. For the 99.5 Percent Act, S. 994, 117th Congress (2021)
(discussion draft available at https://www.sanders.senate.gov/
wp-content/uploads/For-the-99.5-Act-Text.pdf).
44. See infra note 1.
45. We would like to thank Ellen K. Harrison for her thought-
ful advice on this article.
46. See infra note 35 S
page 7Spring/Summer 2021 Trusts & Estates Newsletter
Protecting Clients from Their Creditors:
Self-Settled Spendthrift Trusts
By Ann H. Larkin, Esq.
Midgett Preti Olansen PC, Virginia Beach
Self-Settled Spendthrift Trusts. ferring an interest in a trust in violation of the provi-
A Qualified Self-Settled Spendthrift Trust sion.1 A creditor of the beneficiary may not reach
(QSSST), also commonly referred to as a Domestic the interest or a distribution by the trustee prior to its
Asset Protection Trust (DAPT), is a first-party asset receipt by the beneficiary, but once the trustee dis-
protection tool in which assets transferred to the trust tributes assets outright to a beneficiary, protection is
by the grantor are protected from the grantor’s own lost and the beneficiary’s creditors may attach them.
creditors. The trust must be irrevocable, the grantor In most states, there are statutory exceptions to the
can be the primary beneficiary of the trust, and the enforceability of spendthrift provisions. In Virginia,
transfer must, of course, not be a fraudulent transfer spendthrift provisions, whether self-settled or for the
intended to hide assets for the purpose of avoiding benefit of a third party, are not enforceable if there is
a specific debt. Nineteen states currently recognize a valid child support order against the beneficiary2 or
QSSSTs, including Virginia, which enacted Sections if the trust is otherwise subject to reimbursement to
64.2-745.1 and 64.2-745.2 in 2012. Seven specific government agencies, such as Medicaid, for public
statutory requirements, set forth in Section 64.2- assistance.3 However, unlike most other states with
745.2 (11), must be met for this type of trust to be self-settled spendthrift trust statutes, Virginia has
effective under Virginia law. In all states allowing not enacted specific statutory exceptions for spousal
them, QSSSTs are subject to pre-existing debts, but support orders or for claims by the federal or state
the extent to which creditor claims arising after the government for amounts other than reimbursement
creation of the QSSST are permitted varies by state. for public assistance.
A “Hybrid QSSST” is much like a regular
QSSST, but a third-party (the grantor’s family, for Determining Top Asset Protection Priorities.
example), and not the grantor, is the initial discre- The primary goals of self-settled spendthrift trusts
tionary beneficiary of the trust. The Hybrid QSSST are, of course, asset protection and, in some cases,
is therefore a third-party trust while a traditional transfer tax minimization (if grantor trust require-
QSSST is a first-party trust. A Hybrid QSSST may, ments are met). QSSSTs may be most beneficial to
however, be converted into a first-party QSSST upon attorneys, physicians and small business owners con-
the trustee or a trust protector later naming the grantor cerned with frivolous and frequent lawsuits. Frivolous
as a beneficiary. tort lawsuits are a continual drain on small business
In general, a spendthrift trust is a trust that limits a resources in the United States,4 and self-settled
beneficiary’s access to principal, under the oversight spendthrift trusts could help solve this problem, while
of a trustee. Under the Uniform Trust Code, a spend- also making sure, through fraudulent transfer statutes,
thrift provision in a trust is valid “only if it restrains that businesses are not cheating the system. While
both voluntary and involuntary transfer of a benefi- public policy arguments can be made against self-set-
ciary’s interest” and restricts a beneficiary from trans- tled spendthrift trusts, one public policy argument in
page 8Spring/Summer 2021 Trusts & Estates Newsletter
favor of such trusts is that they allow small business in that there is only a two-year period during which
owners to shift back in to the economy assets that the creditor may bring a claim, and a grantor may
would otherwise be spent defending against frivolous serve as the trustee.
lawsuits, resulting in an overall economic benefit to One area of uncertainty is the extent to which a
the state. resident of a state that does not have a QSSST stat-
ute can create a trust in a state with a QSSST statute
Which Jurisdiction is Best? and still enjoy protection from creditors from the
While Virginia has a QSSST statute, it is rela- grantor’s state of residence. To date, no case has
tively untested and may not be the only option for a expressly recognized protection against the creditors
client with connections to other states that allow self- of a non-resident grantor. This unsettled conflict of
settled spendthrift trusts. Virginia residents may be law issue – whether the law of the QSSST state or
able to avail themselves of the protection of QSSSTs the state of the debtor’s residence should be applied
or DAPTs created under the laws of another state, so to creditor claims – makes some practitioners leery
long as the trust is holding an asset in a state where of creating out-of-state QSSSTs for clients residing
self-settled spendthrift trusts are statutorily autho- in “non-QSSST” states.
rized, where a grantor regularly conducts business,
or where the primary asset used to fund the trust is Making Sure Protections Don’t Get Stripped:
located. Practitioners and grantors should be aware, Fraudulent Transfers.
however, that there is a possibility that a judge in Because self-settled trusts attempt to protect an
another state presiding over a creditor challenge to individual from his own potential creditors, state
an asset owned by a trust with a grantor who is not a statutes governing such trusts are tailored, to varying
resident of the state may dislike the perceived forum degrees, to avoid fraudulent conveyances. As it relates
shopping and may side with the in-state creditor look- to QSSSTs, each jurisdiction is consistent in that after
ing to unwind the QSSST structure. a prescribed waiting period, the assets transferred to
Attorneys and financial professionals have made the trust are protected from the grantor’s liabilities. In
efforts to rank the QSSST states by most debtor- other words, there is generally a statutory period of
friendly to least.5 One question in this analysis time during which a creditor may challenge a QSSST.
is whether the state statute recognizes “exception A creditor who can show a fraudulent transfer will,
creditors,” or creditors from whom a trust cannot upon successful challenge, be able to set aside the
protect. In states where no exception creditors are trust, reach QSSSTs assets, and claim attorney’s fees
recognized, QSSST assets can be protected even from incurred in proving the grantor’s fraudulent intent.
former spouses claiming alimony and support, and As a general matter, a fraudulent transfer is a transfer
potentially creditors with preexisting tort claims. A made with the intent to avoid an existing obligation
number of other factors can be more or less beneficial or to defraud a legitimate creditor. Drafting attor-
to a QSSST grantor, depending on the jurisdiction. neys and grantors alike should be cognizant of the
In Virginia, legislation is comparatively conserva- factors surrounding the creation of their trust and the
tive in that it prescribes a five-year period in which way those facts may appear in the event of a future
present creditors (creditors that exist at the time of challenge. Virginia’s QSSST statute is specifically
the creation of the trust) may bring a claim. In addi- subject to Virginia’s fraudulent conveyance statutes
tion, Virginia’s definition of a “qualified” trustee is (Va. Code §§ 55.1-400 et seq.).7 In addition, it spe-
detailed and stringent, a grantor may not serve as cifically states that the five-year limitations period
his own trustee, and only the right of the grantor to on creditor claims that existed “on the date of the
receive distributions of income and principal from the settlor’s transfer to the trust” restarts on the date of
trust is protected from creditor claims.6 By contrast, any subsequent transfer to the trust.8 Attorneys must
Nevada is perceived to have more liberal legislation therefore caution client-grantors that even a properly
page 9Spring/Summer 2021 Trusts & Estates Newsletter
drafted trust may not withstand a challenge if a clear inclusion of a provision allowing a trust protector to
funding strategy is not strictly adhered to. eliminate the grantor as a beneficiary; and (3) inclu-
There are also bankruptcy law considerations. sion of a provision prohibiting distributions to the
In fact, the first reported case involving a QSSST grantor if the grantor is married, as distributions to
involved a fraudulent transfer analysis in the context a spouse are permissible and less likely to be scruti-
of the Bankruptcy Code. In Battley v. Mortensen, the nized.
Alaska Bankruptcy Court held that the trust funding QSSSTs are a useful asset protection tool for the
fell under Section 548(e) of the Bankruptcy Code as a right client. However, because the Virginia statute is
fraudulent transfer to a self-settled trust made within relatively new and differs in some significant ways
ten years prior to the grantor’s bankruptcy filing.9 from older first-party spendthrift statutes in other
The timing of creation, amount of contribution, and states, counsel should proceed with caution. This type
choice of assets, trustee, and jurisdiction may all be of trust should be created and funded only during
subject to scrutiny upon a challenge by a creditor, good times. If interest in a QSSST stems from a cli-
and are factors a Court may consider in determining ent’s concern about a specific transaction or event, it
whether a fraudulent conveyance has occurred.10 is likely too late to create a QSSST in Virginia or any
other state that would withstand a fraudulent convey-
Drafting Trust Provisions That Insulate the ance challenge. S
Grantor.
Regardless of which state is chosen, strict com-
pliance with the relevant statute is required. Failure Ann H. Larkin is a Shareholder at Midgett Preti
of a trust to meet the statutory requirements will be Olansen. She focuses her practice on estate planning,
the first argument a creditor will make in trying to estate and trust administration, special needs plan-
set aside a self-settled spendthrift trust. The best ning and guardianship and conservatorship matters.
approach in drafting one is not to give the grantor She designs estate plans ranging from basic to com-
any powers beyond those specifically listed in the plex, serves as trustee of trusts with both individual
statute. Common drafting errors include: naming and charitable beneficiaries, and administers large
individuals to serve as trustee who do not meet the and small estates as personal representative. Ms.
specific requirements for a “qualified trustee” or an Larkin is a current member of the Hampton Roads
“independent qualified trustee;” failure to include at Estate Planning Council, the Virginia Association
least one beneficiary other than the grantor to whom of Elder Law Attorneys, and has been designated
income and/or principal can be distributed (if the stat- as an Accredited Estate Planner® by the National
ute requires this – Virginia’s does); including a provi- Association of Estate Planners & Councils.
sion allowing the trust to terminate after a period of
time with a reversion of the assets to the grantor; and Summary: A self-settled spendthrift trust can be
inclusion of a provision giving the grantor a lifetime a useful asset protection tool for the right client.
power of appointment when the statute allows only However, strict adherence to the statutory require-
the inclusion of a testamentary power of appointment ments and contemplation of the fraudulent transfer
(Virginia’s statute permits a testamentary power of rules are essential to making it work. X
appointment only).
In addition to strict adherence to the require-
ments of the state-specific DAPT statute, inclusion (Endnotes)
of the following provisions will help to minimize 1. Uniform Trust Code § 502; Va. Code § 64.2-743.
the likelihood that the DAPT will be set aside: (1) a 2. Va. Code § 64.2-744. Not all states include exceptions for
child support judgements and orders. See, e.g., AZ Rev Stat §
prohibition on distributions for ten years plus one day 14-10503(B), which provides that spendthrift trusts do not pro-
to avoid Section 548(e) of the Bankruptcy Code; (2) tect against judgements for child support, unless the spendthrift
page 10Spring/Summer 2021 Trusts & Estates Newsletter
trust is also a special needs trust.
3. Va. Code § 64.2-745.
4. NOTE: IN STATES WE “TRUST”: SELF-SETTLED
TRUSTS, PUBLIC POLICY, AND INTERSTATE FEDERAL-
ISM, 111 Nw. U.L. Rev. 205, 232-233 (Noting that, in 2008, the
overall price tag for tort litigation for small business owners was
$105.4 billion. While small businesses were burdened with 81%
of the litigation costs they received only 22% of the revenue.)
5. For an informative attorney analysis on “state rankings”,
see 11th Annual Domestic Asset Protection Trust State Rank-
ings Chart, available at https://www.oshins.com/state-rankings-
charts.
6. See Va. Code Ann. § 64.2-745.1 et seq. While Virginia’s
QSSST statute is more conservative than most, it is one of only
three states that offer immediate protection against future credi-
tors.
7. Va. Code § 64.2-745.1(C).
8. Va. Code § 64.2-745.1(F)(2).
9. Battley v. Mortensen (In re Mortensen), 2011 Bankr.
LEXIS 5004 (Bankr. D.C. Alaska 2011).
10. PLANNING TO AVOID PITFALLS: ASSET PROTEC-
TION TRUSTS THIRTEEN YEARS AFTER ENACTMENT,
Todd A. Flubacher, available at https://www.morrisnichols.
com/assets/htmldocuments/165.pdf. S
page 11Spring/Summer 2021 Trusts & Estates Newsletter
Revisiting the Multiple-Party Accounts Act
By Carissa L. Peterson
Yates Campbell & Hoeg LLP, Fairfax
Introduction of the account, has a present right, subject
It has been just over forty years since Virginia to request, to payment from a multiple-party
adopted the Multiple-Party Accounts Act. Modeled account, including a fiduciary account. The
on Article Six of the Uniform Probate Code, its enact- term includes a P.O.D. payee or beneficiary of
ment came at a time when the statutory landscape was a trust account only after the account becomes
confusing and the case law addressing multiple-party payable to him by reason of his surviving the
accounts produced conflicting results that did not original payee or trustee. The term includes a
always align with depositor expectations.1 Today’s guardian, conservator, personal representative,
legal practitioners have undoubtedly internalized or assignee, including an attaching creditor,
many of the Act’s basic principles. And, while the of a party. The term also includes a person
Act may better reflect account holders’ assumptions, identified as a trustee of an account for another
often our client’s goals are undermined by persistent whether or not a beneficiary is named, but it
misconceptions surrounding multiple-party accounts does not include any named beneficiary unless
and their legal significance. This article is a refresh- he has a present right of withdrawal.5
er of Virginia’s Multiple-Party Accounts Act and
addresses some common issues seen in practice with The Act focuses on two aspects of multiple-party
the goal of better serving our clients’ estate planning accounts.6 The first part, covering Code §§ 6.2-
needs and expectations. 606 through 6.2-608, applies only to disagreements
between parties to multiple-party accounts and their
Part I – Virginia’s Multiple-Party Accounts Act creditors and successors.7 The second part, cover-
Virginia’s Multiple-Party Accounts Act (the ing Code §§ 6.2-612 through 6.2-617, “governs the
“Act”) is found in the Virginia Code (the “Code”) liability of financial institutions that make payments
under §§ 6.2-604 through 6.2-620. Broadly, the Act pursuant to the account agreement.”8
covers checking accounts, savings accounts, cer- Interestingly, prior to the Act, there were no
tificates of deposit, share accounts, and “other simi- Virginia Supreme Court cases that directly addressed
lar arrangements.”2 For the purposes of this article, the rights to multiple-party accounts during the life-
some other key definitions include: time of the parties. Now, under Code § 6.2-606, own-
• A “joint account” is “an account payable on ership of a joint account during lifetime of all parties
request to one or more of two or more parties is “in proportion to the net contribution by each to
whether or not mention is made of any right of the sums on deposit[.]” As for joint accounts between
survivorship.”3 married persons, the account belongs to each person
• “Multiple-party account” can mean a joint equally. Importantly, these presumptions as to the
account, a P.O.D. account, or a trust account.4 ownership of joint accounts conform to the expecta-
• “Party” means a person who, by the terms tions of most depositors, but they can be rebutted
page 12Spring/Summer 2021 Trusts & Estates Newsletter
by “clear and convincing evidence of a different Part II – Issues in Practice
intent.”9 Clients may have several reasons for utilizing
As to rights of survivorship, prior to the Act, the multiple-party accounts. For example, a client may
presumption was that deposits in joint accounts with want to use a joint account or P.O.D. account to avoid
survivorship were made merely for the convenience probate (the so-called “poor man’s will”). Another
of the depositor.10 Thus, the right of survivorship common reason often seen is a parent who adds a
did not necessarily attach because it was the intention child to an account so that the child can assist with
of the depositor that was the primary and controlling paying bills or access funds on behalf of a parent for
factor.11 Not surprisingly, relying on the subjec- emergencies (i.e., an agency relationship between the
tive intent of the depositors generated unpredictable parent and child). At the outset, our clients should be
results in the case law.12 Significantly, the Act aware of potential gift tax consequences. For exam-
altered this common law presumption of convenience ple, if a parent adds a child to her account, then there
and provides that “sums remaining on deposit at the is no completed gift until the child (as a noncontrib-
death of a party to a joint account belongs to the sur- uting joint owner) withdraws funds from the account
viving party as against the estate of the decedent[.]”13 for his or her own benefit.17 However, if the child
Again, this can be rebutted if there is “clear and con- uses funds from the account to, say, buy a car, then
vincing evidence of a different intention at the time the parent would be making a gift to the child. To the
the account is created.”14 So, while the assets pass extent that the amount withdrawn exceeds the annual
to the surviving account holder, they are not shielded exclusion of $15,000, then filing of a gift tax return
entirely from claims against the deceased account will be required.
holder’s creditors and estate. Code § 6.2-611 out- We often see issues arise in the estate planning
lines when the surviving party is liable for the debts, context. Assume the client wants a will that leaves
taxes and administration expenses, including statu- everything equally to her two children, but a major-
tory allowances. This, as we know, is why a personal ity of her assets are held in a joint account with only
representative of an estate lists a decedent’s interest one child party to the account. The client could unin-
in multiple-party accounts on the estate’s inventory tentionally disinherit her other child when, upon her
even though it is not a probate asset. death, the funds pass by survivorship to the child who
Finally, some key takeaways from the provisions is party to the joint account. This may be stating the
dealing with the liability of financial institutions are obvious, but in my short time as a practicing attorney,
(1) a financial institution can pay sums to any one of I have encountered such a scenario numerous times.
the parties to an account without establishing net con- The first, and easiest, place to nip this unintended
tributions; and (2) a financial institution that makes consequence in the bud is in the estate planning
payment in accordance with an account agreement phase. For the client who uses a joint account to avoid
is discharged “from all claims for amounts so paid probate, she may instead consider a P.O.D. account.
whether or not the payment is consistent with the ben- For the client who wants assistance with paying bills
eficial ownership of the account as between parties, or wants a child to have access to funds in case of
P.O.D. payees, beneficiaries, or fiduciaries, or their emergencies, then a financial power of attorney may
successors.”15 Regarding the latter point, a financial be more appropriate.
institution will not be free from liability if a party able Perhaps more often we see such unintended results
to make a withdrawal on the account provides writ- during the estate administration phase. Expanding on
ten notice to the financial institution that withdrawals the scenario above, now mother has died and the
should not be permitted until the rights of the parties child named on the joint account is serving as execu-
is determined.16 tor of her estate. Taking the position that it was not
mother’s intention that the assets pass solely to her,
the child who inherited the joint account could relin-
page 13Spring/Summer 2021 Trusts & Estates Newsletter
quish the funds and provide them to the estate to be tance of reviewing them with our clients to ensure
administered pursuant to the terms of the will. But, their needs and expectations are met (and pitfalls are
to avoid probate administration, the surviving child avoided). X
account holder might be tempted to keep the funds in
the joint account and make a distribution directly to
the other child to “honor” mother’s wishes. This child
should be aware that distributing the funds directly (Endnotes)
could result in individual gift tax consequences if 1. See Barbara M. Rose, Does Virginia’s New Law Corre-
spond with the Expectations of the Average Depositor?, 14 U.
the amount exceeds the annual exclusion. Of course, Rich. L. Rev 851 (1980) (offering a concise review of Virginia’s
these scenarios assume that the surviving siblings get statutory and case law prior to July 1, 1980).
along. If the relationship is less than amicable, then 2. Va. Code Ann. § 6.2-604.
joint accounts could certainly generate further tension 3. Id. (emphasis added).
4. Id.
within the family and unnecessary claims. 5. Id.
6. Va. Code Ann. § 6.2-605.
Conclusion 7. Id.
The Multiple-Party Accounts Act came at a time 8. Id.
9. Va. Code Ann. § 6.2-606
when the courts “struggled to discover whether a 10. See King v. Merryman, 196 Va. 844, 856 (1955).
joint deposit bank account with an extended right of 11. Id. at 851.
survivorship . . . is a gift, a trust, a contract, or joint 12. See Rose, supra note 1, at 856.
tenancy, or a testamentary disposition.”18 It also 13. Va. Code Ann. § 6.2-608(A).
14. Id.
came at a time when the case law was silent as to the 15. Va. Code Ann. § 6.2-616.
lifetime rights of parties to joint accounts. Needless 16. Id.
to say, the Act provided much-needed clarity with 17. See Treas. Reg. § 25.2511-1(h)(4) (“If A creates a joint
respect to multiple-party accounts. As practitioners, bank account for himself and B (or a similar type of ownership
by which A can regain the entire fund without B’s consent),
we can ensure we provide the same level of clarity to there is a gift to B when B draws upon the account for his own
our clients. When a client comes to us for estate plan- benefit, to the extent of the amount drawn without any obliga-
ning purposes, it is an opportune time to review any tion to account for a part of the proceeds to A.”).
multiple-party accounts they may have to ensure their 18. King v. Merryman, 196 Va. at 849. S
goals are met. S
Carissa L. Peterson joined Yates, Campbell & Hoeg
LLP as associate attorney in January 2020. She prac-
tices in the areas of trust and estate planning, admin-
istration, and elder law. Prior to joining the firm,
Carissa clerked for the Fairfax County Commissioner
of Accounts, John H. Rust, Jr. Carissa is a graduate
of the Antonin Scalia Law School at George Mason
University.
Summary: In Carissa’s article, “Revisiting the
Multiple-Party Accounts Act,” Carissa L. Peterson
gives a refresher of Virginia’s Multiple-Party Accounts
Act and discusses some common issues seen in prac-
tice. The article serves as a practical reminder of the
legal implications of these accounts and the impor-
page 14TRUSTS AND ESTATES SECTION BOARD OF GOVERNORS
2020-2021
Carter R. Brothers Kevin L. Stemple Richard H. Howard-Smith
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