Virginia Law

Chapter 22. Trust Company Regulations

10VAC5-22-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Affiliate" means generally a person that directly or indirectly controls, is controlled by, or is under common control with another person. In addition, for purposes of Article 1 (§ 6.2-1000 et seq.) and Article 2 (§ 6.2-1013 et seq.) of Chapter 10 of Title 6.2 of the Code of Virginia, a broker-dealer, investment advisor, or investment company is an affiliate of a trust company if a trust company holding company controls the trust company and owns, directly or indirectly, 5.0% or more of any class of the capital stock of the broker-dealer, investment advisor, or investment company.

"Affiliated trust company" means a trust company that is controlled by a trust company holding company. For purposes of Articles 1 and 2 of Chapter 10 of Title 6.2 of the Code of Virginia, a trust company holding company or other person has control of a trust company or other legal entity if the person owns 25% or more of the voting stock of the trust company or entity; if, pursuant to the definition of control in the Bank Holding Company Act of 1956 (12 USC § 1841 et seq.), the person would be presumed to control the trust company or entity; or if the commission determines that the person exercises a controlling influence over the management and policies of the trust company or entity.

"Broker-dealer" means any person selling any type of security other than an interest or unit in a condominium as defined in subdivision (c) of § 55-79.2 of the Code of Virginia or cooperative housing corporation for the account of others or for his own account otherwise than with or through a broker-dealer or agent, but does not include a bank, a trust subsidiary formed under Article 3 (§ 6.2-1047 et seq.) of Chapter 10 of Title 6.2 of the Code of Virginia, an issuer or an agent.

"Bureau" means the Bureau of Financial Institutions of the State Corporation Commission.

"Commission" means the State Corporation Commission.

"Trust company" means a corporation, including an affiliated trust company, authorized to engage in the trust business under Article 1 (§ 6.2-1000 et seq.) and Article 2 (§ 6.2-1013 et seq.) of Chapter 10 of Title 6.2 of the Code of Virginia with powers expressly restricted to the conduct of general trust business.

"Trust company holding company" means a corporation which owns, directly or indirectly, 5.0% or more of any class of capital stock of a broker-dealer, investment advisor, or investment company and which also controls a trust company.

Statutory Authority

§§ 6.2-1034 and 12.1-13 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 1, eff. April 20, 1995; amended, Virginia Register Volume 28, Issue 1, eff. September 1, 2011.

10VAC5-22-20. Preliminary statement; responsibility of the board of directors; meetings of the board.

The board of directors of a trust company shall be composed of individuals who are qualified by character and business experience to direct the affairs of a corporate fiduciary. The board shall be responsible for directing the affairs of the company in accordance with general principles of law relating to trusts and fiduciaries, Virginia statutory and common law, and other applicable laws and regulations.

The board of directors shall hold a meeting at least once in each calendar month, unless at the request of a trust company the commission allows, for cause, less frequent meetings. A majority of the board must be present for the lawful transaction of business. However, the stockholders may fix, by bylaw, a number not less than five as a quorum.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 2, eff. April 20, 1995.

10VAC5-22-30. Composition of affiliated trust company board; prohibitions on dual service.

A majority of the board of directors of an affiliated trust company shall consist of members who are neither directors nor officers of any other single affiliate of the trust company.

A director, officer, or employee of a trust company holding company or any affiliate of an affiliated trust company may not serve at the same time as an officer, director, or employee of the trust company, if such individual's employment responsibilities at an affiliate of the trust company include (i) the solicitation, sale or trading of securities; (ii) the selection of portfolio managers; (iii) the performing of investment advisory services; (iv) responsibilities that are functionally equivalent to those listed in (i), (ii), or (iii); or (v) supervision of one or more persons having such responsibilities.

A person who is an agent, broker-dealer, investment advisor, or investment advisor representative shall not serve as an officer or director of a trust company that is not an affiliated trust company.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 3, eff. April 20, 1995.

10VAC5-22-40. Reports of condition; annual audits.

Trust companies and trust company holding companies shall submit to the bureau statements of their financial condition at such times as the bureau may require. Such statements shall be made in accordance with forms prescribed by the bureau, certified under oath, and attested by at least three directors. The bureau shall call upon all such trust companies and trust company holding companies doing business in Virginia to file these statements. The bureau may require any trust company or trust company holding company to prepare and submit such other reports and material as the bureau deems necessary to protect or promote the public interest.

The board of directors of a trust company shall cause to be made an annual audit of the trust company. The audit shall be performed by a qualified, independent auditor. A separate report, containing a management letter, shall be required and submitted to the bureau in a timely manner.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 4, eff. April 20, 1995.

10VAC5-22-50. Insurance required.

In addition to the surety bond required by § 6.2-1016 of the Code of Virginia, a trust company shall maintain insurance coverage that, in kind and amount, provides adequate protection against the risks of the business. The coverage may be provided through the holding company of an affiliated trust company.

Statutory Authority

§§ 6.2-1034 and 12.1-13 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 5, eff. April 20, 1995; amended, Virginia Register Volume 28, Issue 1, eff. September 1, 2011.

10VAC5-22-60. Investments.

A trust company may invest its capital funds in the investments permitted by law for state banks; it shall reasonably diversify the investment of such funds.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 6, eff. April 20, 1995.

10VAC5-22-70. Loans to certain persons prohibited.

A trust company shall not make loans or otherwise extend its capital funds to an officer, director, or employee of the trust company, its holding company, and its affiliates.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 7, eff. April 20, 1995.

10VAC5-22-80. Delegation of trust functions; confidentiality.

A trust company, as trustee, is responsible to settlors and beneficiaries of trusts for carrying out the terms of trust agreements. This responsibility remains with the company regardless of any arrangement that may place one or more trust functions (e.g., administration, custody, investment advice, investment management) with a third party. The trust company must retain sufficient control of trust accounts to be able to meet its responsibilities.

In instances where investment discretion, i.e., the authority to determine what securities or other property shall be bought or sold for an account, is delegated to an affiliate of a trust company, the affiliate must be named by the settlor in the trust agreement or other controlling document. The trustee may advise the settlor in selecting such affiliate, and shall review its performance periodically and advise the settlor whether it is in the best interest of the trust to continue the delegation of investment discretion to such affiliate.

A trust company shall preserve the confidentiality of customers' financial information and shall not disclose such information without the consent of the customer.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 8, eff. April 20, 1995.

10VAC5-22-90. Trust administration as individual, receipt of income from licensed activities prohibited.

An officer or employee of a trust company may not accept or administer, as an individual, any trust account, unless the board of directors approves and monitors the arrangement. While employed by a trust company or receiving remuneration therefrom, an officer or employee of a trust company may not engage in a licensed activity and receive commissions, fees, or other similar income from such activity.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 9, eff. April 20, 1995.

10VAC5-22-100. Securities advice prohibited; exception.

An affiliated trust company may not express an opinion as to the advisability of purchasing any security underwritten by an affiliate, or in which any affiliate makes a market, unless the affiliated trust company clearly discloses in writing that the trust company and the underwriting affiliate are under common ownership, that the affiliate is underwriting or dealing in the security, and that the affiliate has a financial interest in the sale of the security, which interest shall be described.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 10, eff. April 20, 1995.

10VAC5-22-110. Agency or marketing activity prohibited.

An affiliated trust company may not act as agent for, or engage in any marketing activity on behalf of, its holding company or any affiliate of the trust company. An affiliated trust company may not distribute any prospectus or other sales literature relating to a particular security, and may not make any such information available at an office of the trust company.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 11, eff. April 20, 1995.

10VAC5-22-120. Services by affiliate.

When a service is provided to a trust account by an affiliate of a trust company, the service must be allowed under the terms of the governing instrument, by a court or by law, and must be justified by readily available documents relating to the specific account.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 12, eff. April 20, 1995.

10VAC5-22-130. Referral of securities transactions.

An affiliated trust company may not direct to an affiliated broker-dealer the compensation-producing securities transactions of a trust account, unless:

1. Such action is authorized by the account settlor, the beneficiaries, or a court (depending on the circumstances) by specific written consent or authorization obtained after disclosure of the relationship and the terms of the arrangement;

2. Use of the affiliated broker-dealer is in the best interest of the account;

3. In the case of employee benefit trusts, a reasoned opinion of counsel is obtained to the effect that the proposed use does not violate the Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq.); and

4. The trust company has established adequate safeguards against potential abuses (e.g., "churning").

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 13, eff. April 20, 1995.

10VAC5-22-140. Purchases from affiliate prohibited; exceptions; terms.

Section 6.2-1020 of the Code of Virginia provides that an affiliated trust company may not, during the underwriting period, purchase from an affiliated broker-dealer any security that is being underwritten by that broker-dealer.

Outside the scope of § 6.2-1020 of the Code of Virginia, an affiliated trust company may not purchase any security or other property from an affiliate, except as authorized by a provision of a governing trust instrument or other controlling document, by a court, or in accordance with specific permission given by law (e.g., § 26-44.1 of the Code of Virginia). Any such purchase from an affiliate shall be made at arm's length and on terms no less stringent than those that would apply in a transaction with an unrelated third party.

Statutory Authority

§§ 6.2-1034 and 12.1-13 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 14, eff. April 20, 1995; amended, Virginia Register Volume 28, Issue 1, eff. September 1, 2011.

10VAC5-22-150. Separate offices required.

An affiliated trust company shall maintain offices that are separate and clearly distinguishable from the offices of its holding company and every other affiliate of the trust company. If the offices of the trust company are in the same building with those of a broker-dealer affiliate, the trust company's offices shall be on a different floor from the offices of the broker-dealer.

Statutory Authority

§ 6.2-1034 of the Code of Virginia.

Historical Notes

Derived from VR225-01-0205 § 15, eff. April 20, 1995.