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2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 4. Creation, Validity, Modification and Termination of Trust › §44D-4-417. Combination and Division of Trusts

After notice to the qualified beneficiaries, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair rights of any beneficiary or adversely affect achievement of the purposes of the trust.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts › §44D-5-501. Rights of Beneficiary's Creditor or Assignee

To the extent a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest in a trust by execution or other process against the present or future distributions to or for the benefit of the beneficiary. The court may limit the award to relief as appropriate under the circumstances.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts › §44D-5-502. Spendthrift Provision

(a) A spendthrift provision contained in a trust instrument is valid if it contains language substantially to the effect that it restrains both voluntary and involuntary transfers of a beneficiary's interest.
(b) A term of a trust instrument providing that the interest of a beneficiary is held subject to a "spendthrift trust," or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.
(c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision, and, except as otherwise provided in this article, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts › §44D-5-503. Exceptions to Spendthrift Provision

(a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.
(b) A spendthrift provision is unenforceable against:
(1) A beneficiary's child, who has a judgment or court order against the beneficiary for child support;
(2) A judgment creditor who has provided services for the protection of a beneficiary's interest in the trust; and
(3) A claim of this state or the United States to the extent a statute of this state or federal law so provides.
(c) A claimant against whom a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts › §44D-5-504. Discretionary Trusts; Effect of Standard

(a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.
(b) Except as otherwise provided in subsection (c) of this section, whether or not a trust instrument contains a spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if:
(1) The discretion is expressed in the form of a standard of distribution; or
(2) The trustee has abused the discretion.
(c) To the extent a trustee has not complied with a standard of distribution or has abused a discretion:
(1) A distribution may be ordered by the court to satisfy a judgment or court order against the beneficiary for child support of the beneficiary's child; and
(2) The court shall direct the trustee to pay to the child, spouse or former spouse such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion.
(d) This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.
(e) A creditor may not reach the interest of a beneficiary who is also a trustee or cotrustee or otherwise compel a distribution, if the trustee's discretion to make distributions for the trustee's own benefit is limited by an ascertainable standard.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts › §44D-5-505. Creditor’s Claim Against Grantor

(a) Whether or not the terms of a trust instrument contain a spendthrift provision, the following rules apply:
(1) During the lifetime of the grantor, the property of a revocable trust is subject to claims of the grantor’s creditors.
(2) During the lifetime of the grantor, with respect to an irrevocable trust, except to the extent otherwise provided in sections five hundred three-a, five hundred three-b and five hundred three-c of this article, a creditor or assignee of the grantor may reach the maximum amount that can be distributed to or for the grantor’s benefit. If a trust has more than one grantor, the amount the creditor or assignee of a particular grantor may reach may not exceed the grantor’s interest in the portion of the trust attributable to that grantor’s contribution.
(3) After the death of a grantor, and subject to the grantor’s right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the grantor’s death is subject to claims of the creditors of the deceased grantor, to the extent the grantor’s probate estate is inadequate to satisfy them, and with such claims payable in order of priority of the following classes:
(A) The costs and expenses of administration of the grantor’s estate;
(B) Reasonable funeral expenses;
(C) Debts and taxes with preference under federal law;
(D) Unpaid child support which is due and owing at the time of the decedent’s death;
(E) Debts and taxes with preference under other laws of the State of West Virginia;
(F) Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation for persons attending the decedent during his or her last illness; and
(G) All other claims.
(b) For purposes of this section:
(1) During the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the grantor of a revocable trust to the extent of the property subject to the power; and
(2) Upon the lapse, release or waiver of the power, the holder is treated as the grantor of the trust only to the extent the value of the property affected by the lapse, release or waiver exceeds the greater of the amount specified in Section 2041(b)(2), Section 2503(b) or Section 2514(e) of the Internal Revenue Code.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 5. Creditor's Claims; Spendthrift and Discretionary Trusts › §44D-5-506. Overdue Distribution

(a) In this section, "mandatory distribution" means a distribution of income or principal which the trustee is required to make to a beneficiary under the terms of the trust instrument, including a distribution upon termination of the trust. The term does not include a distribution subject to the exercise of the trustee's discretion even if:
(1) The discretion is expressed in the form of a standard of distribution; or
(2) The terms of the trust instrument authorizing a distribution couple language of discretion with language of direction.
(b) Whether or not a trust contains a spendthrift provision, a creditor or assignee of a beneficiary may reach a mandatory distribution of income or principal, including a distribution upon termination of the trust, if the trustee has not made the distribution to the beneficiary within a reasonable time after the designated distribution date.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 6. Revocable Trusts › §44D-6-602. Revocation or Amendment of Revocable Trust

(a) Unless the terms of a trust expressly provide that the trust is irrevocable, the grantor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the effective date of this chapter.
(b) Unless the terms of a trust provide otherwise, if a revocable trust is created or funded by more than one grantor:
(1) To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) To the extent the trust consists of property other than community property, each grantor may revoke or amend the trust with regard the portion of the trust property attributable to that grantor's contribution; and
(3) Upon the revocation or amendment of the trust by fewer than all of the grantors, the trustee shall promptly notify the other grantors of the revocation or amendment.
(c) The grantor may revoke or amend a revocable trust:
(1) By substantially complying with a method provided in the terms of the trust instrument; or
(2) If the terms of the trust instrument do not provide a method, by any other method manifesting clear and convincing evidence of the grantor's intent.
(d) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the grantor directs.
(e) A grantor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust instrument or the power.
(f) A conservator of the grantor or, if no conservator has been appointed, a guardian of the grantor may exercise a grantor's powers with respect to revocation, amendment or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.
(g) A trustee who does not know that a trust has been revoked or amended is not liable to the grantor or grantor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
(h) No trust which is otherwise irrevocable because the trust instrument expressly provides or states that the trust is irrevocable is or becomes revocable by the grantor because the grantor is the sole beneficiary of the trust.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 6. Revocable Trusts › §44D-6-603. Grantor S Powers; Powers of Withdrawal

(a) While a trust is revocable and the grantor has capacity to revoke the trust, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the grantor.
(b) During the period the power may be exercised, the holder of a power of withdrawal has the rights of a grantor of a revocable trust under this section to the extent of the property subject to the power.
(c) When a trust is revocable, the trustee may follow a direction of the grantor that is contrary to the terms of the trust instrument.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 6. Revocable Trusts › §44D-6-604. Limitation on Action Contesting Validity of Revocable Trust; Distribution of Trust Property

(a) (1) An interested person may commence a judicial proceeding to contest the validity of a trust that was revocable at the grantor’s death within the earlier of:
(A) Two years after the grantor’s death; or
(B) Six months after the trustee has sent the interested person a copy of the trust instrument and a notice informing the interested person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.
(2) Notwithstanding subdivision (1) of this subsection:
(A) If the interested person is under the age of eighteen years or is a convict or mentally incapacitated person, the interested person has one year after he or she becomes of age or the disability ceases, to commence a judicial proceeding; and
(B) If the interested person resided out of the state at the time the interested person received the trust instrument and notice, the interested person has one year after receipt thereof to commence the judicial proceeding.
(b) Upon the death of the grantor of a trust that was revocable at the grantor’s death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust instrument. The trustee is not subject to liability for doing so unless:
(1) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or
(2) A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within sixty days after the contestant sent the notification.
(c) A beneficiary of a trust that was revocable at the grantor’s death that is determined to have been invalid is liable to return any distribution received.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-701. Accepting or Declining Trusteeship

(a) Except as otherwise provided in subsection (c) of this section, a person designated as trustee accepts the trusteeship:
(1) By substantially complying with a method of acceptance provided in the terms of the trust instrument; or
(2) If the terms of the trust instrument do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship including by signing a written instrument so stating.
(b) A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A person designated as trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship.
(c) A person designated as trustee, without accepting the trusteeship, may:
(1) Act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the grantor or, if the grantor is dead or lacks capacity, to a qualified beneficiary; and
(2) Inspect or investigate trust property to determine potential liability under environmental or other law or for any other proper purpose.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-702. Trustee's Bond

(a) A trustee shall give bond to secure performance of the trustee's duties only if a bond is required by the terms of the trust instrument or if the court having jurisdiction of the trust finds that a bond is needed to protect the interests of the beneficiaries and the court has not dispensed with the requirement of a bond.
(b) The court may specify the amount of a bond, its liabilities and whether sureties are necessary. The court may modify or terminate a bond at any time upon petition by the grantor, if living, a qualified beneficiary, or cotrustee.
(c) In accordance with the provisions of section eighteen, article four, chapter thirty-one-a of this code, a regulated financial-service institution authorized to exercise trust powers in this state need not give bond, even if required by the terms of the trust instrument.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-703. Cotrustees

(a) Unless otherwise provided in the terms of the trust instrument, cotrustees who are unable to reach a unanimous decision may act by majority decision. Unless otherwise provided by the trust instrument, when a dispute arises among trustees as to the exercise or nonexercise of any of their powers and there is no agreement by a majority of them, the court in its discretion upon a petition filed by any of the trustees, the grantor, if living, a qualified beneficiary, or any interested person, may direct the exercise or nonexercise of the power as it considers necessary for the best interest of the trust.
(b) If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust, unless otherwise provided in the terms of the trust instrument.
(c) Subject to the provisions of 44D-8A-801
et seq.
of this code, a cotrustee must participate in the performance of a trustee
s function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other law, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another trustee.
(d) If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.
(e) A trustee may delegate to a cotrustee the performance of a function other than a function that the terms of the trust expressly require to be performed by the trustees jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation of a function previously made.
(f) Except as otherwise provided in subsection (g) of this section, a trustee who does not join in an action of another trustee is not liable for the action.
(g) Subject to the provisions of 44D-8A-801
et seq.
of this code, each trustee shall exercise reasonable care to:
(1) Prevent a cotrustee from committing a serious breach of trust; and
(2) Compel a cotrustee to redress a serious breach of trust.
(h) A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notifies any cotrustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-704. Vacancy in Trusteeship; Appointment of Successor

(a) A vacancy in a trusteeship occurs if:
(1) A person designated as trustee rejects the trusteeship;
(2) A person designated as trustee cannot be identified or does not exist;
(3) A trustee resigns;
(4) A trustee is disqualified or removed;
(5) A trustee dies; or
(6) A guardian or conservator is appointed for an individual serving as trustee.
(b) If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled, unless otherwise provided in the terms of the trust instrument. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.
(c) Unless otherwise provided in the terms of the trust instrument, a vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:
(1) By a person designated in the terms of the trust instrument to act as successor trustee;
(2) By a person appointed by unanimous written agreement of the qualified beneficiaries; or
(3) By a person appointed by the court having jurisdiction of the trust.
(d) Unless otherwise provided, a vacancy in a trusteeship of a charitable trust that is required to be filled shall be filled in the following order of priority:
(1) By a person designated in the terms of the trust to act as successor trustee;
(2) By a person selected by the charitable organizations expressly designated to receive distributions under the terms of the trust instrument if the Attorney General of West Virginia either concurs in writing to the selection or fails to make a written objection to the selection within ninety days after receiving by certified or registered mail a notice of the selection by the charitable organizations; or
(3) By a person appointed by the court having jurisdiction over the trust.
(e) Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may upon petition of the grantor, a qualified beneficiary, or a cotrustee appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-705. Resignation of Trustee

(a) Unless otherwise provided in the terms of the trust instrument, a trustee may resign without court approval by giving at least thirty days' notice in writing to the grantor, if living, all of the qualified beneficiaries, and all cotrustees, if any.
(b) A trustee may resign with the approval of the court having jurisdiction of the trust upon the filing of a petition for such purpose which joins as respondents the grantor, if living, all of the qualified beneficiaries, and all cotrustees, if any. In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.
(c) Unless otherwise provided by order of the court, any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-706. Removal of Trustee

(a) The grantor, a cotrustee or a beneficiary may upon petition request the court to remove a trustee, or a trustee may be removed by the court on its own initiative. In the case of a charitable trust, the Attorney General of West Virginia shall also have standing to petition the court to remove a trustee.
(b) The court may remove a trustee if the court finds by a preponderance of the evidence that:
(1) The trustee has committed a serious breach of trust;
(2) Lack of cooperation among cotrustees substantially impairs the administration of the trust;
(3) Because of unfitness, unwillingness or persistent failure of the trustee to administer the trust effectively, removal of the trustee best serves the interests of the beneficiaries; or
(4) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, removal of the trustee best serves the interests of all of the beneficiaries, removal is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.
(c) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order appropriate relief under subsection (b), section one thousand one, article ten of this chapter as may be necessary to protect the trust property or the interests of the beneficiaries.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-707. Delivery of Property by Former Trustee

(a) Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.
(b) A trustee who has resigned or been removed shall proceed expeditiously to deliver the trust property within the trustee's possession to the cotrustee, successor trustee or other person entitled to it.
(c) Title to all trust property shall be owned and vested in any successor trustee, upon acceptance of the trusteeship, without any conveyance, transfer or assignment by the prior trustee.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-708. Compensation of Trustee

(a) If the terms of the trust instrument do not specify the trustee's compensation, a trustee is entitled to compensation that is reasonable under the circumstances.
(b) If the terms of the trust instrument specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may upon petition of the grantor, qualified beneficiary, the trustee or cotrustee, if any, may allow more or less compensation if:
(1) The duties of the trustee are substantially different from those contemplated when the trust was created; or
(2) The compensation specified by the terms of the trust instrument would be unreasonably low or high.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 7. Office of the Trustee › §44D-7-709. Reimbursement of Expenses

(a) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for:
(1) Expenses that were properly incurred in the administration of the trust; and
(2) To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.
(b) An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-801. Duty to Administer Trust

Upon acceptance of a trusteeship, the trustee shall administer the trust and invest the trust assets in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this chapter. In administering, managing and investing trust assets, the trustee shall comply with the provisions of the Uniform Prudent Investor Act in article six-c, chapter forty-four of this code, and the Uniform Principal and Income Act in chapter forty-four-b of this code.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-807. Delegation by Trustee

(a) A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust instrument; and
(3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
(b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
(c) A trustee who complies with subsection (a) of this section is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.
(d) By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.
(e) The delegating trustee is not responsible for the decisions, actions or inactions of the trustee to whom those duties and powers have been delegated if the delegating trustee has exercised reasonable care, skill and caution in establishing the scope and specific terms of the delegation and in reviewing periodically the performance of the trustee to whom the duties and powers have been delegated and the trustee's compliance with the scope and specific terms of the delegation.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-808. Powers to Direct

The terms of a trust instrument which confer upon a person other than the grantor of a revocable trust power to direct certain actions of the trustee are governed by the provisions of the West Virginia Uniform Directed Trust Act contained in 44D-8A-801
et seq.
of this code
.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-810. Recordkeeping and Identification of Trust Property

(a) A trustee shall keep adequate records of the administration of the trust.
(b) A trustee shall keep trust property separate from the trustee's own property.
(c) Except as otherwise provided in subsection (d) of this section, a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.
(d) If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-814. Discretionary Powers; Tax Savings

(a) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust instrument, including the use of such terms as "absolute," "sole" or "uncontrolled," the trustee shall exercise a discretionary power in good faith and in accordance with the general and specific terms and purposes of the trust and the interests of the beneficiaries.
(b) Subject to subsection (d) of this section, and unless the terms of the trust instrument expressly indicate that a rule in this subsection does not apply:
(1) A person other than a grantor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and
(2) A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.
(c) A power whose exercise is limited or prohibited by subsection (b) of this section may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court having jurisdiction may appoint a special fiduciary with authority to exercise the power.
(d) Subsection (b) of this section does not apply to:
(1) A power held by the grantor's spouse who is the trustee of a trust for which a marital deduction, as defined in Section 2056(b)(5) or Section 2523(e) of the Internal Revenue Code;
(2) Any trust during any period that the trust may be revoked or amended by its grantor; or
(3) A trust if contributions to the trust qualify for the annual exclusion under Section 2503(c) of the Internal Revenue Code.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-815. General Powers of Trustee

(a) A trustee, without authorization by the court having jurisdiction, may exercise:
(1) Powers conferred by the terms of the trust instrument; or
(2) Except as limited by the terms of the trust instrument:
(A) All powers over the trust property which an unmarried competent owner has over individually owned property;
(B) Any other powers appropriate to achieve the proper investment, management and distribution of the trust property; and
(C) Any other powers conferred by this code.
(b) The exercise of a power is subject to the fiduciary duties prescribed by this article.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8. Duties and Powers of Trustee › §44D-8-817. Distribution Upon Termination

(a) Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within sixty days after the proposal was sent but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection.
(b) Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall have and exercise all powers appropriate to wind up the administration of the trust and shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses and taxes.
(c) A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent:
(1) It was induced by improper conduct of the trustee; or
(2) The beneficiary, at the time of the release, did not know of the beneficiary’s rights or of the material facts relating to the breach.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-802. Definitions

In addition to the definitions contained in 44D-1-103 of this code, as used in this article:
(1) "Breach of trust" means a violation by a trust director or trustee of a duty imposed on that director or trustee by the terms of the trust, this article, or law of this state, other than this article pertaining to trusts.
(2) "Directed trust" means a trust for which the terms of the trust grant a power of direction.
(3) "Directed trustee" means a trustee that is subject to a trust director
s power of direction.
(4) "Power of direction" means a power over a trust granted to a person by the terms of the trust to the extent the power is exercisable while the person is not serving as a trustee. The term includes a power over the investment, management, or distribution of trust property or other matters of trust administration. The term excludes the powers described in 44D-8A-501(b) of this code.
(5) "Trust director" means a person that is granted a power of direction by the terms of a trust to the extent the power is exercisable while the person is not serving as a trustee. The person is a trust director whether or not the terms of the trust refer to the person as a trust director and whether or not the person is a beneficiary or grantor of the trust.
(6) "Knowingly" means known by the trustee based on the contents of the direction and any information provided by the trust director to the trustee.
(7) "Willful misconduct" means intentional malicious conduct or conduct intentionally designed to defraud or seek an unconscionable advantage and which is not mere negligence, gross negligence, or recklessness.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-803. Application; Principal Place of Administration

The provisions of the West Virginia Uniform Directed Trust Act apply to a trust, whenever created, that has its principal place of administration in this state, subject to the following rules:
(a) If the trust was created before the effective date of this article, this article applies only to a decision or action occurring on or after the effective date of this article.
(b) If the principal place of administration of the trust is changed to this state on or after the effective date of this article, this article applies only to a decision or action occurring on or after the date of the change.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-805. Exclusions

(a) In this section, "power of appointment" means a power that enables a person acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over trust property.
(b) This article does not apply to a:
(1) Power of appointment;
(2) Power to appoint or remove a trustee or trust director;
(3) Power of a grantor over a trust to the extent the grantor has a power to revoke the trust;
(4) Power of a beneficiary over a trust to the extent the exercise or nonexercise of the power affects the beneficial interest of:
(A) The beneficiary; or
(B) Another beneficiary represented by the beneficiary under 44D-3-301, 44D-3-302, 44D-3-303, 44D-3-304, and 44D-3-305 of this code with respect to the exercise or nonexercise of the power; or
(5) Power over a trust if:
(A) The terms of the trust provide that the power is held in a nonfiduciary capacity; and
(B) The power must be held in a nonfiduciary capacity to achieve the grantor
s tax objectives under the United States Internal Revenue Code of 1986 and regulations issued thereunder.
(c) Unless the terms of a trust provide otherwise, a power granted to a person to designate a recipient of an ownership interest in or power of appointment over trust property which is exercisable while the person is not serving as a trustee is a power of appointment and not a power of direction.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-806. Powers of Trust Director

(a) Subject to 44D-8A-807 of this code, the terms of a trust may grant a power of direction to a trust director.
(b) Unless the terms of a trust provide otherwise:
(1) A trust director may exercise any further power appropriate to the exercise or nonexercise of a power of direction granted to the director under subsection (a) of this section; and
(2) Trust directors with joint powers must act by majority decision.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-807. Limitations on Trust Director

A trust director is subject to the same rules as a trustee in a like position and under similar circumstances in the exercise or nonexercise of a power of direction or further power under 44D-8A-806(b)(1) of this code regarding:
(1) A payback provision in the terms of a trust necessary to comply with the reimbursement requirements of Medicaid law in Section 1917 of the Social Security Act, 42 U.S.C. Section 1396p(d)(4)(A) and regulations issued thereunder; and
(2) A charitable interest in the trust, including notice regarding the interest to the Attorney General of the State of West Virginia.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-808. Duty and Liability of Trust Director

(a) Subject to subsection (b) of this section, with respect to a power of direction or further power under 44D-8A-806(b)(1) of this code:
(1) A trust director has the same fiduciary duty and liability in the exercise or nonexercise of the power:
(A) If the power is held individually, as a sole trustee in a like position and under similar circumstances; or
(B) If the power is held jointly with a trustee or another trust director, as a cotrustee in a like position and under similar circumstances; and
(2) The terms of the trust may vary the directors duty or liability to the same extent the terms of the trust could vary the duty or liability of a trustee in a like position and under similar circumstances.
(b) Unless the terms of a trust provide otherwise, if a trust director is licensed, certified, or otherwise authorized or permitted by law other than in 44D-8A-801
et seq.
of this code to provide health care in the ordinary course of the director
s business or practice of a profession, to the extent the director acts in that capacity, the director has no duty or liability under this article.
(c) The terms of a trust may impose a duty or liability on a trust director in addition to the duties and liabilities under this section.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-809. Duty and Liability of Directed Trustee

(a) Subject to subsection (b) of this section, a directed trustee shall take reasonable action to comply with a trust directors exercise or nonexercise of a power of direction or further power under 44D-8A-806(b)(1) of this code, and the trustee is not liable for the action.
(b) A directed trustee must not comply with a trust directors exercise or nonexercise of a power of direction or further power under 44D-8A-806(b)(1) of this code to the extent that the directed trustee is thereby directed knowingly to violate the laws or regulations of any jurisdiction applicable to the trust. The directed trustee may reasonably rely upon the advice of legal counsel to determine what actions would be consistent with, or contrary to, applicable law. Reasonable expenses incurred by the directed trustee in good faith for legal advice concerning an instruction from a trust director or a petition to the court for instructions shall be proper expenses of the trust.
(c) An exercise of a power of direction under which a trust director may release a trustee or another trust director from liability for breach of trust is not effective if:
(1) The breach involved the trustees or other directors breach of fiduciary duty as set forth in subsection (b) of this section;
(2) The release was induced by improper conduct of the trustee or other director in procuring the release; or
(3) At the time of the release, the director did not know the material facts relating to the breach.
(d) A directed trustee that has reasonable doubt about its duty under this section may petition the court for instructions.
(e) The terms of a trust may impose a duty or liability on a directed trustee in addition to the duties and liabilities under this section.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-810. Duty to Provide Information to Trust Director or Trustee

(a) Subject to 44D-8A-811 of this code, a trustee shall provide information to a trust director to the extent the information is reasonably related both to:
(1) The powers or duties of the trustee; and
(2) The powers or duties of the director.
(b) Subject to 44A-8A-811 of this code, a trust director shall provide information to a trustee or another trust director to the extent the information is reasonably related both to:
(1) The powers or duties of the director; and
(2) The powers or duties of the trustee or other director.
(c) A trustee that acts in reliance upon information provided by a trust director is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the trustee engages in willful misconduct.
(d) A trust director that acts in reliance upon information provided by a trustee or another trust director is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the trust director engages in willful misconduct.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-811. No Duty to Monitor, Inform, or Advise

(a) Unless the terms of a trust provide otherwise:
(1) A trustee does not have a duty to:
(A) Monitor a trust director; or
(B) Inform or give advice to a grantor, beneficiary, trustee, or trust director concerning an instance in which the trustee might have acted differently than the director; and
(2) By taking an action described in 44D-8A-811(a)(1) of this code, a trustee does not assume the duty excluded by 44D-8A-811(a)(1) of this code.
(b) Unless the terms of a trust provide otherwise:
(1) A trust director does not have a duty to:
(A) Monitor a trustee or another trust director; or
(B) Inform or give advice to a grantor, beneficiary, trustee, or another trust director concerning an instance in which the director might have acted differently than a trustee or another trust director; and
(2) By taking an action described in 44D-8A-811(b)(1) of this code, a trust director does not assume the duty excluded by 44D-8A-811(b)(1) of this code.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-812. Application to Cotrustee

The terms of a trust may relieve a cotrustee from duty and liability with respect to another cotrustee
s exercise or nonexercise of a power of the other cotrustee to the same extent that in a directed trust a directed trustee is relieved from duty and liability with respect to a trust directors power of direction under 44D-8A-809, 44D-8A-810, and 44D-8A-811 of this code.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-813. Limitation of Action Against Trust Director

(a) An action against a trust director for breach of trust must be commenced within the same limitation period as provided in 44D-10-1005 of this code for an action for breach of trust against a trustee in a like position and under similar circumstances.
(b) A report or accounting has the same effect on the limitation period for an action against a trust director for breach of trust that the report or accounting would have under 44D-10-1005 of this code in an action for breach of trust against a trustee in a like position and under similar circumstances.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-815. Jurisdiction Over Trust Director

(a) By accepting appointment as a trust director of a trust subject to this article, the director submits to personal jurisdiction of the courts of this state regarding any matter related to a power or duty of the director.
(b) 44D-8A-815 of this code does not preclude other methods of obtaining jurisdiction over a trust director.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8A. West Virginia Uniform Directed Trust Act › §44D-8A-816. Office of Trust Director

Unless the terms of a trust provide otherwise, the rules applicable to a trustee apply to a trust director regarding the following matters:
(1) Acceptance under 44D-7-701 of this code;
(2) Giving of bond to secure performance under 44D-7-702 of this code;
(3) Reasonable compensation under 44D-7-708 of this code;
(4) Resignation under 44D-7-705 of this code;
(5) Removal under 44D-7-706 of this code; and
(6) Vacancy and appointment of successor under 44D-7-704 of this code.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8B. West Virginia Uniform Trust Decanting Act › §44D-8B-3. Scope

(a) Except as otherwise provided in subsections (b) and (c) of this section, this article applies to an express trust that is irrevocable or revocable by the grantor only with the consent of the trustee or a person holding an adverse interest.
(b) This article does not apply to a trust held solely for charitable purposes.
(c) Subject to 44D-8B-15 of this code, a trust instrument may restrict or prohibit exercise of the decanting power.
(d) This article does not limit the power of a trustee, powerholder, or other person to distribute or appoint property in further trust or to modify a trust under the trust instrument, law of this state other than this article, common law, a court order, or a nonjudicial settlement agreement.
(e) This article does not affect the ability of a grantor to provide in a trust instrument for the distribution of the trust property or appointment in further trust of the trust property or for modification of the trust instrument.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8B. West Virginia Uniform Trust Decanting Act › §44D-8B-4. Fiduciary Duty

(a) In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust.
(b) This article does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the applicability of this article.
(c) Except as otherwise provided in a first-trust instrument, for purposes of this article and 44D-8-1 and 44D-8-2(a) of this code, the terms of the first trust are considered to include the decanting power.
2023 West Virginia Code › Chapter 44D. Uniform Trust Code › Article 8B. West Virginia Uniform Trust Decanting Act › §44D-8B-5. Application; Governing Law

This article applies to a trust created before, on, or after the effective date of this article which:
(1) Has its principal place of administration in this state, including a trust whose principal place of administration has been changed to this state; or
(2) Provides by its trust instrument that it is governed by the law of this state or is governed by the law of this state for the purpose of:
(A) Administration, including administration of a trust whose governing law for purposes of administration has been changed to the law of this state;
(B) Construction of terms of the trust; or
(C) Determining the meaning or effect of terms of the trust.