Fiduciary:  A relationship which implies a position of trust or
confidence wherein one is entrusted to hold or manage property or money for another. 

The selection of your fiduciary
may be the most important estate planning decision you make.

Why choose Virginia
Fiduciary, PLC?

Acting as a fiduciary requires expertise. 

The legal requirements of estate settlement and trust management are complex and fraught with traps for the inexperienced.  Improper actions by a well-intentioned but inexperienced fiduciary can lead to family conflicts, additional expense and personal liability.  Because a fiduciary should have a professional background in many related areas, success in one's business does not necessarily translate to the level of ability and knowledge required to act as a fiduciary.  The wrong choice can result in negating your carefully crafted estate plan.

Acting as a fiduciary requires objectivity.

Family conflicts are not just over money.  They are more often the result of family dynamics. Sadly, family disputes are often irreconcilable.    Family members who have a stake in the estate may find it difficult, if not impossible, to be objective.  For this reason alone, the role of fiduciary is best handled by a professional who is not emotionally involved and, therefore, is free to act in the best interests of all beneficiaries.

Actings as a fiduciary requires time.

To do the job right, settling an estate is a big job requiring a large investment of time, superior organizational and people skills, and a variety of talents ranging from accounting to packing family heirlooms.  When you ask a family member to act as fiduciary, you are also asking that person to take time away from his or her job, family, and other activities.  In short, being a fiduciary is a burden, made even more so by the grief and sadness felt at losing a loved one.

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  What role does
family dynamics play in selecting a fiduciary?

Family dynamics are often such that a family member, no matter how competent, is the wrong choice.

There are a variety of reasons why it just makes sense to have an independent fiduciary.

• You have a blended family:  Second marriages require a more complicated estate plan.  Spouses often provide for each other through trusts where the surviving spouse receives benefits for life and his or her step-children are the ultimate beneficiaries.  This is the "perfect storm" of estate planning where conflicts of interest and complicated emotions collide.
• There is potential for family strife:  Virtually all families have emotional issues that can erupt into actual conflict.  This is most likely to happen after both parents die and resentments over real or perceived special treatment, lack of financial responsibility or acuity, distrust and sibling rivalry rise to the surface.
• The surviving spouse needs protection from over-bearing children:  Sometimes one parent is a "soft touch."  If that parent is the surviving spouse and acting as trustee, she or he may have difficulty saying no to a particularly aggressive or needy child.  An independent trustee can act as a buffer for the surviving parent.
• A beneficiary's inheritance needs protection:  If a beneficiary is a spendthrift, has creditor concerns, is in an unstable marriage, or is in a high risk profession, e.g., surgeon, it may be appropriate for that beneficiary's share of the estate to be retained in trust to prevent creditors from having access to it. In that situation, a third party trustee is necessary to completely accomplish asset protection.  Or, you may not trust a child's spouse and wish to protect that child's inheritance from the influence of an over-reaching son- or daughter-in-law.
• Your estate plan includes a trust that will last a long time:  In any situation where your estate plan utilizes a trust that will last a long time, such as a generation-skipping trust, you need to be concerned about longevity.  Individuals die; institutions do not.  Because Virginia Fiduciary, PLC is named as an entity, we provide that continuity.
• Your estate plan includes a trust for minor children or a special needs beneficiary:  We recommend that you not name the same person as both guardian of a minor child and trustee of that child's inheritance because there is no true accountability.  If the trustee mismanages the funds, intentionally or unintentionally, the child may not be in a position to know about it until it's too late. 
• You are of advanced age or worried about your future health:  Planning for the possibility of infirmity is an important part of estate planning.  If you are of advanced age or facing serious health issues, you may want to appoint Virginia Fiduciary as a current trustee.  There are a number of advantages to this:  (1) it lets you "kick the tires" to make sure we do a good job; (2) it positions Virginia Fiduciary to smoothly take over management of your affairs if disability occurs; and (3) it positions Virginia Fiduciary to efficiently administer the estate when death occurs.  By having Virginia Fiduciary already in place, it minimizes the disruption to the estate and the family.  And, because it is our policy never to increase our fee schedule for an existing account, the sooner we become a current trustee, the greater the savings will be.
• Your estate includes difficult assets to administer or value such as a business:  The potential for family conflict and fiduciary conflict of interest is even greater when the estate faces complicated administration and/or valuation issues.  As an independent trustee, Virginia Fiduciary is better equipped to deal with sensitive and difficult estate issues.

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How is Virginia Fiduciary appointed?

Virginia Fiduciary may be named to act currently or in the future.

Selecting Virginia Fiduciary is easy.  If you are establishing a new trust, whether it is revocable or irrevocable, simply name Virginia Fiduciary as the current trustee.

You may also name Virginia Fiduciary to act in the future by appointing us as successor trustee in a trust or as executor in your will.

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The Uniform Trust Code of Virginia gives beneficiaries new control over who serves as trustee of their trust. 

Under the provisions of the Uniform Trust Code (UTC), as adopted in Virginia in July 2006, the court may remove a trustee if requested to do so by the beneficiaries and if the court finds that removal would best serve the interests of all beneficiaries and is not inconsistent with a material purpose of the trust.  (Va. Code § 55-547.06(B)(4).)

The circumstances under which a material purpose of the trust is served by having a specific trustee are very rare.  In most instances, the creator of the trust named an institutional trustee solely to provide independent, objective, and professional management for beneficiaries.  Selection of the institutional trustee, particularly in older trusts, often stemmed from a long-standing relationship with a local bank.  That local institution may have long since been absorbed by merger and acquisition.  In that situation, the creator of the trust never had, and never contemplated having, a relationship with the current trustee. 

Removal need not be attributable to the trustee's malfeasance.

There is no requirement that removal be "for cause" or be justified by the trustee's lack of performance.  It is sufficient that the beneficiaries request removal and the court determines it is in the interest of all beneficiaries to do so. 

The process is not complicated.

We look first to the trust document.  In some cases, the trust may provide that it is governed by the law of a state other than Virginia.  Since Virginia Fiduciary acts as trustee only for Virginia trusts, it may be necessary to change the situs of the trust to Virginia.  Many trusts, especially older trusts, do not contain trustee resignation and successor language.  If the trust does contain provisions governing the resignation, removal and appointment of a successor trustee, those procedures must be followed.  If not, we turn to the UTC.

The current trustee is asked to resign.  If the trustee declines to do so, the court is asked to issue an order removing that trustee. 

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