Virginia Law

If a report made pursuant to § 64.2-1210 or a special report of the commissioner of accounts shows that money is in the possession of a fiduciary, the circuit court in which the report is filed may order that the money be invested or loaned out, or make such other order respecting the money as the court deems proper.

Code 1919, § 5430; Code 1950, § 26-38; 2012, c. 614.

A. Whenever a guardian of an estate, conservator, or other fiduciary charged with the investment of funds collects any principal, he shall have a reasonable time, not to exceed four months, to invest or loan the funds and shall not be charged with interest thereon until the expiration of such time. A guardian of an estate, conservator, or any other fiduciary shall only be required to invest in accordance with the provisions of §§ 64.2-1502 through 64.2-1506 and the Uniform Prudent Investor Act (§ 64.2-780 et seq.) and, if he invests in accordance with these provisions, he shall be accountable only for such interest and profits as are earned. If any funds are otherwise invested without the previous consent of the court having jurisdiction of such trust funds, the burden shall be on the guardian of an estate, conservator, or other fiduciary before his settlement is approved by the commissioner of accounts to show to the satisfaction of the commissioner of accounts that, after exercising reasonable diligence, he was unable to invest the funds in accordance with these provisions and that the investment made was reasonable and proper under all of the circumstances and fair to the beneficiary of the funds.

B. This section shall not be construed as altering the provisions of any will, deed, or other instrument that give the fiduciary discretion as to the rate of interest, character of security, nature or investment under the trust, or time within which the trust funds are to be loaned or invested.

Code 1919, § 5325; 1938, p. 203; 1946, p. 223; Code 1950, § 26-39; 1997, c. 842; 1999, c. 772; 2012, c. 614.

A. As used in this section:

"Fiduciary" has the same meaning as provided in § 8.01-2 and also includes an attorney-in-fact or agent acting for a principal under a written power of attorney, a custodian under § 64.2-1911, and a custodial trustee under § 64.2-906.

"National rating service" means Standard & Poor's Corporation, Moody's Investors Service, Inc., Duff and Phelps, Inc., Fitch Investors Corporation, and any successor to the rating business of any of them.

B. Notwithstanding any other provision of law designating as legal investments for fiduciaries the bonds, notes, obligations, or other evidences of indebtedness issued by a governmental entity or political subdivision of the Commonwealth, including but not limited to agencies, authorities, commissions, districts, boards, or local governments, and except as specifically provided in § 2.2-4519, fiduciaries, whether individual or corporate, shall, except as limited in subsection E, be conclusively presumed to have been prudent in investing the funds held by them in a fiduciary capacity in only the following securities:

1. Obligations of the Commonwealth, its agencies and political subdivisions. The following obligations:

a. Bonds, notes, and other evidences of indebtedness of the Commonwealth and securities unconditionally guaranteed as to the payment of principal and interest by the Commonwealth;

b. Revenue bonds, revenue notes, or other evidences of revenue indebtedness issued by agencies or authorities of the Commonwealth upon which there is no default; and

c. Bonds, notes, and other evidences of indebtedness of any county, city, town, district, authority, or other public body in the Commonwealth upon which there is no default provided that such bonds, notes, and other evidences of indebtedness are (i) direct legal obligations of the public body, for the payment of which the public body has pledged its full faith and credit and unlimited taxing power, or (ii) unconditionally guaranteed as to the payment of principal and interest by the public body.

In every case referred to in this subdivision, such bonds, notes, or other evidences of indebtedness shall be rated in one of the two highest rating categories of at least one national rating service and not rated in a category lower than the two highest rating categories of any national rating service. Determination of an obligation's rating in one of the two highest rating categories shall be made without regard to any refinement or gradation of such rating category by numerical or other modifier. In addition, the remaining maturity of such bonds, notes, or other evidences of indebtedness shall not be greater than five years.

2. Obligations of the United States. Bonds, notes, and other obligations of the United States and securities unconditionally guaranteed as to the payment of principal and interest by the United States with a remaining maturity not greater than five years, except in the case of savings bonds, which may have a longer maturity. The obligations enumerated in this subdivision may be held directly or in the form of repurchase agreements collateralized by such obligations or in the form of securities of any open-end or closed-end management type investment company or investment trust registered under the federal Investment Company Act of 1940, provided that the portfolio of such investment company or investment trust is limited to such obligations or repurchase agreements collateralized by such obligations, or securities of other such investment companies or investment trusts whose portfolios are so restricted.

3. Savings accounts, time deposits, or certificates of deposit. Savings accounts, time deposits, or certificates of deposit in any bank, savings bank, trust company, savings and loan association, or credit union authorized to do business in the Commonwealth, but only to the extent that such accounts, deposits, or certificates are fully insured by the Federal Deposit Insurance Corporation or any successor federal agency or by the National Credit Union Share Insurance Fund or any successor to it.

C. Notwithstanding the provisions of this section, investments listed in § 2.2-4519 as in effect prior to July 1, 1992, which continue to be held on July 1, 1992, shall be subject to § 64.2-781, and any reference to the Virginia "legal list" or to § 2.2-4519 or any predecessor statute contained in a will, trust, or other instrument that was irrevocable on June 30, 1992, shall be construed to refer to such section as in effect on June 30, 1992, or at such earlier time as may be specified in the controlling document, absent an expression of intent to the contrary contained in such document.

D. The permissible investments specified in subsection B are not exclusive and shall not be construed to limit a fiduciary's investments as permitted pursuant to the Uniform Prudent Investor Act (§ 64.2-780 et seq.).

E. The presumption under subsection B shall apply to (i) a fiduciary only for a calendar year in which the value of the intangible personal property under the fiduciary's control or management does not exceed $100,000 at the beginning of such year or (ii) a fiduciary who, on motion for good cause shown, has obtained express authorization from the court having jurisdiction over the fiduciary for the presumption under subsection B to apply.

1992, c. 810, § 26-40.01; 1996, c. 508; 1999, c. 772; 2005, c. 62; 2007, c. 517; 2012, c. 614.

Executors, administrators, trustees, and other fiduciaries, both individual and corporate, may invest the funds held by them in a fiduciary capacity in bonds and other obligations issued, guaranteed, or assured by the Inter-American Development Bank, which are and shall be considered lawful investments.

1968, c. 65, § 26-40.1; 2012, c. 614.

Subject to the Uniform Prudent Investor Act (§ 64.2-780 et seq.) and the common law duties of a fiduciary, unless the governing instrument or a court order specifically directs otherwise, a bank or trust company serving as personal representative, trustee, guardian, agent, or in any other fiduciary capacity, may purchase during the existence of any underwriting or selling syndicate any state or municipal security otherwise authorized by this title in spite of the fact that the fiduciary, or an affiliate thereof under common ownership, participates or has participated as a member of a syndicate underwriting such security if the fiduciary purchases the security from another syndicate member or from an affiliate thereof and not from itself or any of its affiliates.

1988, c. 347, § 26-40.2; 1999, c. 772; 2012, c. 614.

Investments made under the provisions of § 64.2-1502, if in conformity with the requirements of that section at the time the investments were made, may be retained even though they cease to be eligible for purchase under the provisions of that section, but shall be subject to the provisions of the Uniform Prudent Investor Act (§ 64.2-780 et seq.).

Code 1919, § 5431; 1942, p. 662; Code 1950, § 26-44; 1992, c. 810; 1999, c. 772; 2012, c. 614.

Unless prohibited or otherwise limited by the instrument under which a fiduciary is acting, including a fiduciary of an agency account, the fiduciary may invest in a mutual company, investment trust, or investment company sponsored, advised, or sold by the fiduciary or an affiliate if the investment is otherwise appropriate as an investment. In such case, the fiduciary shall not take a commission as fiduciary to the extent that the fiduciary, or its affiliate or division, receive compensation for services relating to advice or services to such mutual fund, investment trust, or investment company, unless (i) otherwise expressly agreed in writing by the creator of the trust or affected beneficiary or (ii) the fiduciary discloses by statement, prospectus, or otherwise to all current income beneficiaries of an account the rate, formula, or other method by which the compensation received or to be received by the fiduciary or affiliate or division of the fiduciary for such advice and services is determined. In such case, the compensation for such advice and services shall not exceed the customary or prevailing amount that is charged by a fiduciary, or its affiliate or division, for providing comparable advice and services for the benefit of nonfiduciary accounts.

1990, c. 66, § 26-44.1; 1992, c. 684; 2012, c. 614.