Virginia Law

Article 2. Nonresident Trustees.

A. A natural person who is not a resident of the Commonwealth may be appointed or allowed to qualify or act as the personal representative, or trustee under a will, of any decedent, or appointed as the guardian of an infant's estate or the guardian or conservator of the property of an incapacitated person under Chapter 20 (§ 64.2-2000 et seq.) or Chapter 21 (§ 64.2-2100 et seq.).

Qualification of such person as a personal representative, or trustee under a will, of any decedent shall be subject to the provisions of Article 1 (§ 64.2-500 et seq.) of Chapter 5.

At the time of qualification or appointment, each such nonresident shall file with the clerk of the circuit court of the jurisdiction wherein the qualification is had or appointment is made his consent in writing that service of process in any action or proceeding against him as personal representative, trustee under a will, conservator, or guardian, or any other notice with respect to the administration of the estate, trust, or person in his charge in the Commonwealth may be by service upon the clerk of the court in which he is qualified or appointed, or upon such resident of the Commonwealth and at such address as the nonresident may appoint in the written instrument. In the event of the death, removal, resignation, or absence from the Commonwealth of a resident agent or any successor named by a similar instrument filed with the clerk, or if a resident agent or any such successor cannot with due diligence be found for service at the address designated in such instrument, then any process or notice may be served on the clerk of the circuit court. Notwithstanding §§ 64.2-505 and 64.2-2011, where any nonresident qualifies, other than as a guardian of an incapacitated person, pursuant to this subsection, bond with surety shall be required in every case, unless a resident personal representative, trustee, or fiduciary qualifies at the same time or the court or clerk making the appointment waives surety under the provisions of § 64.2-1411.

B. A corporation shall not be appointed or allowed to qualify or act as personal representative, as trustee under a will, or as one of the personal representatives or trustees under a will of any decedent, or appointed or allowed to qualify or act as guardian of an infant, as one of the guardians of an infant, as guardian of the person or property of an incapacitated person under Chapter 20 (§ 64.2-2000 et seq.) or Chapter 21 (§ 64.2-2100 et seq.), or as one of the guardians or conservators, unless the corporation is authorized to do business in the Commonwealth. Nothing in this section shall be construed to impair the validity of any appointment or qualification made prior to January 1, 1962, nor to affect in any way the other provisions of this chapter or of § 64.2-609. The provisions of this section shall not authorize or allow any appointment or qualification prohibited by § 6.2-803.

C. The fact that an individual nominated or appointed as the guardian of the person of an infant is not a resident of the Commonwealth shall not prevent the qualification of the individual to serve as the sole guardian of the person of the infant.

1924, p. 415; 1936, p. 760; Michie Code 1942, § 5400a; 1950, p. 724, § 26-59; 1962, c. 576; 1983, c. 467; 1984, c. 39; 1986, cc. 53, 543; 1989, c. 535; 1995, cc. 678, 684; 1996, c. 680; 1997, c. 921; 2001, c. 836; 2011, c. 518; 2012, c. 614.

When any nonresident infant or incapacitated person is entitled to property or money in the Commonwealth, a petition to remove the property or money to the domicile of the infant or incapacitated person may be filed by his guardian, conservator, committee, or other fiduciary lawfully appointed and qualified in the state or country of his residence, in the circuit court of the county or city in which the property or money, or some part thereof, is located. If entitlement to the property or money was acquired other than by a will or was acquired by a will that restricts the transfer out of the Commonwealth, the infant or incapacitated person, and the guardian of the infant or the conservator or other fiduciary of the incapacitated person appointed in the Commonwealth, if there is one, shall be made a party defendant to this petition. The court shall appoint a guardian ad litem for the infant or incapacitated person who, as well as the conservator or other fiduciary, if there is one, shall answer the petition on oath. Upon a hearing of the case on its merits, or upon the petition without hearing if entitlement to the property or money was acquired by a will that does not restrict the transfer out of the Commonwealth, the court may order the fiduciary to pay and deliver to the foreign guardian, conservator, committee, or fiduciary, or his agent or attorney, all personal property and money in his possession belonging to the infant or incapacitated person, and authorize the foreign guardian, conservator, committee, or fiduciary to sue for, recover, and receive all money and personal property, including the accruing rents of his real estate, that belongs to the infant or incapacitated person in the same manner as if he were appointed a guardian, conservator, committee, or fiduciary of the infant or incapacitated person in the Commonwealth, and to remove the money and personal property to the state or country in which the foreign fiduciary was appointed and qualified.

Code 1919, § 5350; Code 1950, § 26-60; 1968, c. 399; 1983, c. 487; 1997, c. 801; 2012, c. 614.

When the proceeds of sale of the real estate of an infant, incapacitated person, or cestui que trust are invested, or required to be invested under the direction of the circuit court, and the infant, incapacitated person, or cestui que trust does not reside in the Commonwealth, on the petition of a guardian, committee, conservator, or trustee lawfully appointed or qualified in the state or country of residence of the infant, incapacitated person, or cestui que trust, the court under whose direction such proceeds are so invested, or required to be invested, may, with the consent of the persons residing in the Commonwealth who would be the heirs of the infant, incapacitated person, or cestui que trust, if he were dead, order such proceeds to be paid and delivered to the foreign guardian, committee, conservator, or trustee, or his agent or attorney, and removed by him to the state or country in which he was appointed and qualified. The court may refuse to permit the payment and delivery if the court determines that the removal of the trust subject will defeat or conflict with the provisions of the deed, will, or other instrument creating the trust.

Code 1919, § 5351; Code 1950, § 26-61; 1997, c. 801; 2012, c. 614.

No order shall be made pursuant to §§ 64.2-1427 and 64.2-1428 until (i) notice of the petition has been published once a week for four successive weeks in a newspaper published in the county or city in which the petition is filed, or if there is none, then in a newspaper published in an adjoining county; (ii) it is shown by authentic documentary evidence that the foreign guardian, conservator, or committee has, in the state or country where he qualified, given bond with surety sufficient to insure his accountability for the whole amount of the estate in his possession or that may be received by him; and (iii) the circuit court determines that the removal of such money or property from the Commonwealth will not impair the rights or be prejudicial to the interests either of the infant or incapacitated person or of any other person.

Code 1919, § 5352; 1930, p. 736; Code 1950, § 26-62; 1997, c. 801; 2012, c. 614.

In any case in which the circuit court finds that the laws of the state or country in which the infant or incapacitated person resides and the foreign guardian, conservator, or committee was appointed and qualified do not provide for the giving of a bond by the guardian, conservator, or committee, the court, in its discretion, may permit the money and other estate of the infant or incapacitated person to be paid and delivered to the foreign fiduciary although he has not given the bond required by § 64.2-1429.

Code 1919, § 5352; 1930, p. 736; Code 1950, § 26-63; 1997, c. 801; 2012, c. 614.

If, in any proceeding under § 64.2-1427 or in case of an interest in property acquired by a will that does not restrict the transfer of property out of the Commonwealth upon petition under § 64.2-1427, the circuit court may order the property, or any part of it, to be sold, and the proceeds to be paid to the foreign guardian, conservator, committee, or nonresident trustee.

Code 1919, § 5355; Code 1950, § 26-66; 1968, c. 399; 1997, c. 801; 2005, c. 935; 2012, c. 614.

When any guardian, committee, conservator, trustee, or other person in the Commonwealth shall pay over, transfer, or deliver any estate in his possession or vested in him, under any order or decree made in pursuance of this chapter, he shall be discharged from all responsibility therefor.

Code 1919, § 5356; Code 1950, § 26-67; 1997, c. 801; 2012, c. 614.