Bill No. 28-0087 Uniform Probate Code
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Bill No. 28-0087 Uniform Probate Code

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Sponsors: Louis P. Hill...

Sponsors: Louis P. Hill
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Subject: Uniform Probate Code; Probate & Uniform Law Updates: Draft a measure to enact the Uniform Probate Code as drafted by the National Conference of Commissioners on Uniform State Laws, amending all relevant sections of the Virgin Islands Code Title 15 and all other sections of the code in order to revise and improve probate court procedures, processing, forms, court filings, and all matters related to probate

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    Bill No. 28-0087 Uniform Probate Code Bill No. 28-0087 Uniform Probate Code Document Transcript

    • COMMITTEE ON RULES AND JUDICIARY BILL NO. 28-0087 Twenty-Eighth Legislature of the Virgin Islands July 6, 2009 An Act amending title 15 of the Virgin Islands Code relating to affairs of decedents, and relating to the affairs of fiduciaries, enacting the Virgin Islands Uniform Probate Code; consolidating and revising aspects of the law relating to wills and intestacy and the administration and distribution of estates of decedents, the powers and procedures of the Court concerned with the affairs of decedents and certain others; providing for the validity and effect of certain non-testamentary transfers, contracts and deposits which relate to death and appear to have testamentary effect; providing certain procedures to facilitate enforcement of testamentary and other trusts; making uniform the law with respect to decedents and certain others; and repealing inconsistent law PROPOSED BY: Senator Louis Patrick Hill 1 Be it enacted by the Legislature of the Virgin Islands: 2 SECTION 1. Title 15 Virgin Islands Code chapters 1 through 56; chapters 58, 59 3 and 63 are repealed and reenacted with amendments that read as follows: 4 “TITILE 15 VIRGIN Islands UNIFORM PROBATE AND FIDUCIRY 5 RELATIONS CODE 6 PART 1 7 SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS 8 §1-101. Short Title. 9 This title may be cited as the Virgin Islands Uniform Probate Code and Fiduciary Relations.
    • 2 1 § 1-102. Purposes; Rule of Construction. 2 (a) This title must be liberally construed and applied to promote its underlying 3 purposes and policies. 4 (b) The underlying purposes and policies of this title are: 5 (1) to simplify and clarify the law concerning the affairs of 6 decedents, missing persons, protected persons, minors and incapacitated 7 persons; 8 (2) to discover and make effective the intent of a decedent in 9 distribution of his property; 10 (3) to promote a speedy and efficient system for liquidating the 11 estate of the decedent and making distribution to his successors; 12 (4) to facilitate use and enforcement of certain trusts; and 13 (5) to make uniform the law among the various jurisdictions. 14 §1-103. Supplementary General Principles of Law Applicable. 15 Unless displaced by the particular provisions of this title, the principles of law and 16 equity supplement its provisions. 17 §1-104. Severability. 18 If any provision of this title or the application this title to any person or circumstances 19 is held invalid, the invalidity does not affect other provisions or applications of the title 20 which can be given effect without the invalid provision or application, and to this end the 21 provisions of this Code are declared to be severable.
    • 3 1 §1-105. Construction Against Implied Repeal. 2 This title is intended as a unified coverage of its subject matter and no part of it may 3 be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided. 4 §1-106. Effect of Fraud and Evasion. 5 Whenever fraud has been perpetrated in connection with any proceeding or in any 6 statement filed under this title or if fraud is used to avoid or circumvent the provisions or 7 purposes of this title, any person injured thereby may obtain appropriate relief against the 8 perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, 9 benefitting from the fraud, whether innocent or not. Any proceeding must be commenced 10 within 2 years after the discovery of the fraud, but no proceeding may be brought against one 11 not a perpetrator of the fraud later than 5 years after the time of commission of the fraud. 12 This section has no bearing on remedies relating to fraud practiced on a decedent during his 13 lifetime which affects the succession of his estate. 14 § 1-107. Evidence of Death or Status. 15 In addition to the rules of evidence in courts of general jurisdiction, the following 16 rules relating to a determination of death and status apply: 17 (1) Death occurs when an individual is determined to be dead 18 under the Uniform Determination of Death Act, 19 V.I.C. §869. 19 (2) A certified or authenticated copy of a death certificate 20 purporting to be issued by an official or agency of the place where the death 21 purportedly occurred is prima facie evidence of the fact, place, date, and time of death 22 and the identity of the decedent.
    • 4 1 (3) A certified or authenticated copy of any record or report of a 2 governmental agency, domestic or foreign, that an individual is missing, detained, 3 dead, or alive is prima facie evidence of the status and of the dates, circumstances, 4 and places disclosed by the record or report. 5 (4) In the absence of prima facie evidence of death under 6 paragraph (2) or (3), the fact of death may be established by clear and convincing 7 evidence, including circumstantial evidence. 8 (5) An individual whose death is not established under the 9 preceding paragraphs who is absent for a continuous period of five years, during 10 which the individual has not been heard from, and whose absence is not 11 satisfactorily explained after diligent search or inquiry, is presumed to be dead. The 12 individual’s death is presumed to have occurred at the end of the period unless there 13 is sufficient evidence for determining that death occurred earlier. 14 (6) In the absence of evidence disputing the time of death stated on 15 a document described in paragraph (2) or (3), a document described in paragraph (2) 16 or (3) that states a time of death 120 hours or more after the time of death of another 17 individual, however the time of death of the other individual is determined, 18 establishes by clear and convincing evidence that the individual survived the other 19 individual by 120 hours. 20 §1-108. Acts by Holder of General Power. 21 For the purpose of granting consent or approval with regard to the acts or accounts of 22 a personal representative or trustee, including relief from liability or penalty for failure to 23 post bond, to register a trust, or to perform other duties, and for purposes of consenting to
    • 5 1 modification or termination of a trust or to deviation from its terms, the sole holder or all co 2 holders of a presently exercisable general power of appointment, including one in the form of 3 a power of amendment or revocation, are deemed to act for beneficiaries to the extent their 4 interests, as objects, takers in default, or otherwise, are subject to the power. 5 §1-109. COST OF LIVING ADJUSTMENT OF CERTAIN DOLLAR 6 AMOUNTS. 7 (a) In this section: 8 (1) “CPI” means the Consumer Price Index (Annual Average) for All 9 Urban Consumers (CPI-U): U.S. City Average — All items, reported by the Bureau 10 of Labor Statistics, United States Department of Labor or its successor or, if the index 11 is discontinued, an equivalent index reported by a federal authority. If no such index 12 is reported, the term means the substitute index chosen by Bureau of Audit Control 13 and 14 (2) “Reference base index” means the CPI for calendar year2009 15 (b) The dollar amounts stated in sections 2-102, 2-202(b), 2-402, 2-403, and 2- 16 405 apply to the estate of a decedent who died in or after 2009, but for the estate of a 17 decedent who died after 2009 these dollar amounts must be increased or decreased if the CPI 18 for the calendar year immediately preceding the year of death exceeds or is less than the 19 reference base index. The amount of any increase or decrease is computed by multiplying 20 each dollar amount by the percentage by which the CPI for the calendar year immediately 21 preceding the year of death exceeds or is less than the reference base index. If any increase 22 or decrease produced by the computation is not a multiple of $100, the increase or decrease is 23 rounded down, if an increase, or up, if a decrease, to the next multiple of $100, but for the
    • 6 1 purpose of Section 2-405, the periodic installment amount is the lump-sum amount divided 2 by 12. If the CPI January 1, 2010 is changed by the Bureau of Labor Statistics, the reference 3 base index must be revised using the rebasing factor reported by the Bureau of Labor 4 Statistics, or other comparable data if a rebasing factor is not reported. 5 PART 2 6 DEFINITIONS 7 §1-201. General Definitions. 8 Subject to additional definitions contained in the subsequent articles which are 9 applicable to specific articles, parts, or sections, and unless the context otherwise requires, in 10 this title: 11 (1) "Agent" includes an attorney-in-fact under a durable or nondurable 12 power of attorney, an individual authorized to make decisions concerning another's 13 health care, and an individual authorized to make decisions for another under a 14 natural death act. 15 (2) "Application" means a written request to the Registrar for an order of 16 informal probate or appointment under Part 3 of Article III. 17 (3) "Beneficiary," as it relates to a trust beneficiary, includes a 18 person who has any present or future interest, vested or contingent, 19 and also includes the owner of an interest by assignment or other 20 transfer; as it relates to a charitable trust, includes any person entitled 21 to enforce the trust; as it relates to a "beneficiary of a beneficiary 22 designation," refers to a beneficiary of an insurance or annuity policy, 23 of an account with POD designation, of a security registered in 24 beneficiary form (TOD), or of a pension, profit sharing, retirement, or
    • 7 1 similar benefit plan, or other nonprobate transfer at death; and, as it 2 relates to a "beneficiary designated in a governing instrument”, 3 includes a grantee of a deed, a devisee, a trust beneficiary, a 4 beneficiary of a beneficiary designation, a donee, appointee, or taker in 5 default of a power of appointment, or a person in whose favor a power 6 of attorney or a power held in any individual, fiduciary, or 7 representative capacity is exercised. 8 (4) "Beneficiary designation" refers to a governing instrument naming a 9 beneficiary of an insurance or annuity policy, of an account with POD designation, of 10 a security registered in beneficiary form (TOD), or of a pension, profit-sharing, 11 retirement, or similar benefit plan, or other nonprobate transfer at death. 12 (5) "Child" includes an individual entitled to take as a child under this title 13 by intestate succession from the parent whose relationship is involved and excludes a 14 person who is only a stepchild, a foster child, a grandchild, or any more remote 15 descendant. 16 (6) "Claims," in respect to estates of decedents and protected persons, 17 includes liabilities of the decedent or protected person, whether arising in contract, in 18 tort, or otherwise, and liabilities of the estate which arise at or after the death of the 19 decedent or after the appointment of a conservator, including funeral expenses and 20 expenses of administration. The term does not include estate or inheritance taxes, or 21 demands or disputes regarding title of a decedent or protected person to specific 22 assets alleged to be included in the estate. 23 (7) “Conservator” means as defined in section 5-102.
    • 8 1 (8) "Court" means the Superior Court of the Virgin Islands or DIVISION 2 of the Superior Court having jurisdiction in matters relating to the affairs of 3 decedents. 4 (9) "Descendant" of an individual means all of the individual’s 5 descendants of all generations, with the relationship of parent and child at each 6 generation being determined by the definition of child and parent contained in this 7 Code. 8 (10) "Devise," when used as a noun, means a testamentary disposition of 9 real or personal property and, when used as a verb, means to dispose of real or 10 personal property by will. 11 (11) "Devisee" means a person designated in a will to receive a devise. For 12 the purposes of Article III, in the case of a devise to an existing trust or trustee, or to a 13 trustee on trust described by will, the trust or trustee is the devisee and the 14 beneficiaries are not devisees. 15 (12) "Distributee" means 16 (A) any person who has received property of a decedent from the 17 decedent’s personal representative other than as a creditor or purchaser: 18 (B) a testamentary trustee, including a trustee to whom assets are 19 transferred by will, only to the extent of distributed assets or increment thereto 20 remaining in the trustee’s hands; 21 (C) a beneficiary of a testamentary trust to whom the trustee has 22 distributed property received from a personal representative.
    • 9 1 (13) "Estate" includes the property of the decedent, trust, or other person 2 whose affairs are subject to this Code as originally constituted and as it exists from 3 time to time during administration. 4 (14) "Exempt property" means that property of a decedent's estate which is 5 described in section 2-403. 6 (15) "Fiduciary" includes a personal representative, guardian, conservator, 7 and trustee. 8 (16) "Foreign personal representative" means a personal representative 9 appointed by another jurisdiction. 10 (17) "Formal proceedings" means proceedings conducted before a judge 11 with notice to interested persons. 12 (18) "Governing instrument" means a deed, will, trust, insurance or annuity 13 policy, account with POD designation, security registered in beneficiary form (TOD), 14 pension, profit sharing, retirement, or similar benefit plan, instrument creating or 15 exercising a power of appointment or a power of attorney, or a dispositive, 16 appointive, or nominative instrument of any similar type. 17 (19) "Guardian" is as defined in section 5-102. 18 (20) "Heirs," except as controlled by section 2-711, means persons, 19 including the surviving spouse and the state, who are entitled under the statutes of 20 intestate succession to the property of a decedent. 21 (21) "Incapacitated person" means an individual described in section 5-102. 22 (22) "Informal proceedings" means those conducted without notice to 23 interested persons by an officer of the court acting as a registrar for probate of a will 24 or appointment of a personal representative.
    • 10 1 (23) "Interested person" , according to the particular purpose of or matter 2 involved in a proceeding, includes heirs, devisees, children, spouses, creditors, 3 beneficiaries, others having a property right in or claim against a trust estate or the 4 estate of a decedent, ward, or protected person, persons having priority for 5 appointment as personal representative, and other fiduciaries representing interested 6 persons. The meaning as it relates to particular persons may vary from time to time 7 and must be determined according to the particular purposes of, and matter involved 8 in, any proceeding. 9 (24) "Issue" of an individual means descendant. 10 (25) "Joint tenants with the right of survivorship" and "community property 11 with the right of survivorship" includes co-owners of property held under 12 circumstances that entitle one or more to the whole of the property on the death of the 13 other or others, but excludes forms of co-ownership registration in which the 14 underlying ownership of each party is in proportion to that party's contribution. 15 (26) "Lease" includes oil, gas, or other mineral lease. 16 (27) "Letters" includes letters testamentary, letters of guardianship, letters 17 of administration, and letters of conservatorship. 18 (28) "Minor" has the meaning described in section 5-102. 19 (29) "Mortgage" means any conveyance, agreement, or arrangement in 20 which property is encumbered or used as security. 21 (30) "Nonresident decedent" means a decedent who was domiciled in 22 another jurisdiction at the time of the decedent’s death.
    • 11 1 (31) "Organization" means a corporation, business trust, estate, trust, 2 partnership, joint venture, association, government or governmental subdivision or 3 agency, or any other legal or commercial entity. 4 (32) "Parent" includes any person entitled to take, or who would be entitled 5 to take if the child died without a will, as a parent under this Code by intestate 6 succession from the child whose relationship is in question and excludes any person 7 who is only a stepparent, foster parent, or grandparent. 8 (33) "Payor" means a trustee, insurer, business entity, employer, 9 government, governmental agency or subdivision, or any other person authorized or 10 obligated by law or a governing instrument to make payments. 11 (34) "Person" means an individual or an organization. 12 (35) "Personal representative" includes executor administrator, successor 13 personal representative, special administrator, and persons who perform substantially 14 the same function under the law governing their status. "General personal 15 representative" excludes special administrator. 16 (36) "Petition" means a written request to the Court for an order after 17 notice. 18 (37) "Proceeding" includes action at law and suit in equity. 19 (38) "Property" includes both real and personal property or any interest 20 therein and means anything that may be the subject of ownership. 21 (39) "Protected person" is as defined in Section 5-102. 22 (40) "Protective proceeding" means a proceeding under Part 4 of Article V. 23 (41) “Record” means information that is inscribed on a tangible medium or 24 that is stored in an electronic or other medium and is retrievable in perceivable form.
    • 12 1 (42) "Registrar" means the official of the court designated to perform the 2 functions of Registrar as provided in section 1-307. 3 (43) "Security" includes any note, stock, treasury stock, bond, debenture, 4 evidence of indebtedness, certificate of interest or participation in an oil, gas, or 5 mining title or lease or in payments out of production under such a title or lease, 6 collateral trust certificate, transferable share, voting trust certificate or, in general, any 7 interest or instrument commonly known as a security, or any certificate of interest or 8 participation, any temporary or interim certificate, receipt, or certificate of deposit 9 for, or any warrant or right to subscribe to or purchase, any of the foregoing. 10 (44) "Settlement," in reference to a decedent's estate, includes the full 11 process of administration, distribution, and closing. 12 (45) “Sign” means, with present intent to authenticate or adopt a record 13 other than a will: 14 (A) to execute or adopt a tangible symbol; or 15 (B) to attach to or logically associate with the record an electronic symbol, 16 sound, or process. 17 (46) “Special administrator” means a personal representative as described 18 by sections 3-614 through 3-618. 19 (47) "State" means a state of the United States, the District of Columbia, 20 and the Commonwealth of Puerto Rico, the Virgin Islands or any territory or insular 21 possession subject to the jurisdiction of the United States. 22 (48) "Successor personal representative" means a personal representative, 23 other than a special administrator, who is appointed to succeed a previously appointed 24 personal representative.
    • 13 1 (49) "Successors" mean persons, other than creditors, who are entitled to 2 property of a decedent under the decedent’s will or this title. 3 (50) "Supervised administration" refers to the proceedings described in 4 Article III, Part 5. 5 (51) "Survive" means that an individual has neither predeceased an event, 6 including the death of another individual, nor is deemed to have predeceased an event 7 under section 2-104 or 2-702. The term includes its derivatives, such as "survives," 8 "survived," "survivor," "surviving." 9 (52) "Testacy proceeding" means a proceeding to establish a will or 10 determine intestacy. 11 (53) "Testator" includes an individual of either sex. 12 (54) "Trust" includes an express trust, private or charitable, with additions 13 thereto, wherever and however created. The term also includes a trust created or 14 determined by judgment or decree under which the trust is to be administered in the 15 manner of an express trust. The term excludes other constructive trusts and excludes 16 resulting trusts, conservatorships, personal representatives, trust accounts as defined 17 in Article VI, custodial arrangements pursuant the Uniform Transfer to minors Act in 18 chapter 62 of this title, business trusts providing for certificates to be issued to 19 beneficiaries, common trust funds, voting trusts, security arrangements, liquidation 20 trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, 21 wages, profits, pensions, or employee benefits of any kind, and any arrangement 22 under which a person is nominee or escrowee for another. 23 (55) "Trustee" includes an original, additional, or successor trustee, 24 whether or not appointed or confirmed by court.
    • 14 1 (56) "Ward" means an individual described in section 5-102. 2 (57) "Will" includes codicil and any testamentary instrument that merely 3 appoints an executor, revokes or revises another will, nominates a guardian, or 4 expressly excludes or limits the right of an individual or class to succeed to property 5 of the decedent passing by intestate succession. 6 PART 3 7 SCOPE, JURISDICTION AND COURTS 8 §1-301. Territorial Application. 9 Except as otherwise provided in this title, this title applies to (1) the affairs and estates 10 of decedents, missing persons, and persons to be protected, domiciled in the Virgin Islands, 11 (2) the property of nonresidents located in the Virgin Islands or property coming into the 12 control of a fiduciary who is subject to the laws of the Virgin Islands, (3) incapacitated 13 persons and minors in the Virgin Islands , (4) survivorship and related accounts in the Virgin 14 islands, and (5) trusts subject to administration in the Virgin Islands. 15 § 1-302. Subject Matter Jurisdiction. 16 (a) To the full extent permitted by the Constitution and except as otherwise 17 provided by law, the court has jurisdiction over all subject matter relating to: 18 (1) Estates of decedents, including construction of wills and determination 19 of heirs and successors of decedents, and estates of protected persons; 20 (2) Protection of minors and incapacitated persons; and 21 (3) Trusts. 22 (b) The Court has full power to make orders, judgments and decrees and take all 23 other action necessary and proper to administer justice in the matters that come before it.
    • 15 1 (c) The Court has jurisdiction over protective proceedings including jurisdiction 2 over guardianship proceedings. 3 (d) Where protective and guardianship proceedings relating to the same person 4 have been initiated, they may be consolidated in any division of the Court as the Court in its 5 discretion determines. 6 § 1-303. Venue; Multiple Proceedings; Transfer. 7 (a) Where a proceeding under this Code could be maintained in more than one 8 place in the Territory, the court in which the proceeding is first commenced has the exclusive 9 right to proceed. 10 (b) If proceedings concerning the same estate, protected person, ward, or trust are 11 commenced in more than one court of the Virgin Islands, the court in which the proceeding 12 was first commenced shall continue to hear the matter, and the other courts shall hold the 13 matter in abeyance until the question of venue is decided, and if the ruling court determines 14 that venue is properly in another court, it shall transfer the proceeding to the other court. 15 (c) If a Court finds that in the interest of justice a proceeding or a file should be 16 located in another Court of the Virgin Islands, the Court making the finding may transfer the 17 proceeding or file to the other Court. 18 § 1-304. Practice in Court. 19 Unless specifically provided to the contrary in this Code or unless inconsistent with 20 its provisions, the rules of civil procedure including the rules concerning vacation of orders 21 and appellate review govern formal proceedings under this Code. 22 § 1-305. Records and Certified Copies. 23 The Clerk of Court shall keep a record for each decedent, ward, protected person or 24 trust involved in any document that may be filed with the court under this title, including
    • 16 1 petitions and applications, demands for notices or bonds, trust registrations, and of any orders 2 or responses relating thereto by the Registrar or court, and establish and maintain a system 3 for indexing, filing or recording which is sufficient to enable users of the records to obtain 4 adequate information. Upon payment of the fees required by law the clerk shall issue 5 certified copies of any probated wills, letters issued to personal representatives, or any other 6 record or paper filed or recorded. Certificates relating to probated wills must indicate 7 whether the decedent was domiciled in the Virgin Islands, and whether the probate was 8 formal or informal. Certificates relating to letters must show the date of appointment. 9 § 1-306. Jury Trial. 10 (a) If duly demanded, a party is entitled to trial by jury in a formal testacy 11 proceeding and any proceeding in which any controverted question of fact arises as to which 12 any party has a constitutional right to trial by jury. 13 (b) If there is no right to trial by jury under subsection (a) or the right is waived, 14 the court in its discretion may call a jury to decide any issue of fact, in which case the verdict 15 is advisory only. 16 § 1-307. Registrar; Powers. 17 The acts and orders that this Code specifies as performable by the Registrar may be 18 performed either by a judge of the Court or by a person, including the clerk, designated by 19 the Court by a written order filed and recorded in the office of the Court. 20 §1-308. Appeals. 21 Appellate review, including the right to appellate review, interlocutory appeal, 22 provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, 23 briefs, arguments and power of the appellate court, is governed by the rules applicable to the 24 appeals to the Supreme Court of the Virgin Islands in equity cases; except that in proceedings
    • 17 1 where jury trial has been had as a matter of right, the rules applicable to the scope of review 2 in jury cases apply. 3 §1-309. RESERVED 4 §1-310. Oath or Affirmation on Filed Documents. 5 Except as otherwise specifically provided in this Code or by rule, every document 6 filed with the Court under this Code including applications, petitions, and demands for 7 notice, is deemed to include an oath, affirmation, or statement to the effect that its 8 representations are true as far as the person executing or filing it knows or is informed, and 9 penalties for perjury may follow deliberate falsification therein. 10 PART 4 11 NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND 12 OTHER MATTERS 13 §1-401. Notice; Method and Time of Giving. 14 (a) If notice of a hearing on any petition is required and except for specific notice 15 requirements as otherwise provided, the petitioner shall cause notice of the time and place of 16 hearing of any petition to be given to any interested person or his attorney if he has appeared 17 by attorney or requested that notice be sent to his attorney. Notice must be given: 18 (1) by mailing a copy the notice at least 14 days before the time set 19 for the hearing by certified, registered or ordinary first class mail addressed to 20 the person being notified at the post office address given in the person’s 21 demand for notice, if any, or at the person’s office or place of residence, if 22 known;
    • 18 1 (2) by delivering a copy of the notice to the person being notified 2 personally at least 14 days before the time set for the hearing; or 3 (3) if the address, or identity of any person is not known and 4 cannot be ascertained with reasonable diligence, by publishing at least once a 5 week for three consecutive weeks, a copy of the notice in a newspaper having 6 general circulation on the island where the hearing is to be held, the last 7 publication of which is to be at least 10 days before the time set for the 8 hearing. 9 (b) The Court for good cause shown may provide for a different method or time 10 of giving notice for any hearing. 11 (c) Proof of the giving of notice must be made on or before the hearing and filed 12 in the proceeding. 13 Section 1-402. Notice; Waiver. 14 A person, including a guardian an item, conservator, or other fiduciary, may waive 15 notice by a writing signed by him or his attorney and filed in the proceeding. A person for 16 whom a guardianship or other protective order is sought, a ward, or a protected person may 17 not waive notice. 18 §1-403. Pleadings; When Parties Bound by Others; Notice. 19 In formal proceedings involving trusts or estates of decedents, minors, protected 20 persons, or incapacitated persons, and in judicially supervised settlements, the following 21 rules apply:
    • 19 1 (1) Interests to be affected must be described in pleadings that give 2 reasonable information to owners by name or class, by reference to the instrument 3 creating the interests or in another appropriate manner. 4 (2) A person is bound by an order binding another in the following cases: 5 (i) An order binding the sole holder or all co-holders of a 6 power of revocation or a presently exercisable general power of 7 appointment, including one in the form of a power of amendment, 8 binds other persons to the extent their interests as objects, takers in 9 default or otherwise are subject to the power. 10 (ii) To the extent there is no conflict of interest between 11 them or among persons represented: 12 (A) An order binding a conservator binds the person 13 whose estate the conservator controls; 14 (B) An order binding a guardian binds the ward if 15 no conservator of the ward’s estate has been appointed; 16 (C) An order binding a trustee binds beneficiaries of 17 the trust in proceedings to probate a will establishing or adding 18 to a trust, to review the acts or accounts of a former fiduciary, 19 and in proceedings involving creditors or other third parties; 20
    • 20 1 (D) An order binding a personal representative binds 2 persons interested in the undistributed assets of a decedent’s 3 estate in actions or proceedings by or against the estate; and 4 (E) An order binding a sole holder or all co-holders 5 of a general testamentary power of appointment binds other 6 persons to the extent their interests as objects, takers in default 7 or otherwise are subject to the power. 8 (iii) Unless otherwise represented, a minor or an 9 incapacitated, unborn, or unascertained person is bound by an order to 10 the extent the person’s interest is adequately represented by another 11 party having a substantially identical interest in the proceeding. 12 (3) If no conservator or guardian has been appointed, a parent may 13 represent a minor child. 14 (4) Notice is required as follows: 15 (i) The notice prescribed by section 1-401 must be given to 16 every interested person or to one who can bind an interested person as 17 described in paragraph (2)(i) or (ii). Notice may be given both to a 18 person and to another who may bind the person. 19 (ii) Notice is given to unborn or unascertained persons, 20 who are not represented under paragraph (2) (i) or (ii), by giving 21 notice to all known persons whose interests in the proceedings are 22 substantially identical to those of the unborn or unascertained persons.
    • 21 1 (5) At any point in a proceeding, a court may appoint a guardian ad litem 2 to represent the interest of a minor, an incapacitated, unborn, or unascertained person, 3 or a person whose identity or address is unknown, if the court determines that 4 representation of the interest otherwise would be inadequate. If not precluded by 5 conflict of interests, a guardian ad litem may be appointed to represent several 6 persons or interests. The court shall state its reasons for appointing a guardian ad 7 litem as a part of the record of the proceeding. 8 ARTICLE II 9 PART 1 10 INTESTATE SUCCESSION 11 §2-101. Intestate Estate. 12 (a) Any part of a decedent's estate not effectively disposed of by will passes by 13 intestate succession to the decedent's heirs as prescribed in this Code, except as modified by 14 the decedent's will. 15 (b) A decedent by will may expressly exclude or limit the right of an individual or 16 class to succeed to property of the decedent passing by intestate succession. If that individual 17 or a member of that class survives the decedent, the share of the decedent's intestate estate to 18 which that individual or class would have succeeded passes as if that individual or each 19 member of that class had disclaimed his intestate share. 20 §2-102. Share of Spouse. 21 The intestate share of a decedent's surviving spouse is: 22 (1) the entire intestate estate if:
    • 22 1 (i) no descendant or parent of the decedent survives the 2 decedent; or 3 (ii) all of the decedent's surviving descendants are also 4 descendants of the surviving spouse and there is no other descendant 5 of the surviving spouse who survives the decedent; 6 (2) the first $300,000, plus three fourths of any balance of the intestate estate, if 7 no descendant of the decedent survives the decedent, but a parent of the decedent survives 8 the decedent; 9 (3) the first $225,000, plus one-half of any balance of the intestate estate, if all of 10 the decedent's surviving descendants are also descendants of the surviving spouse and the 11 surviving spouse has one or more surviving descendants who are not descendants of the 12 decedent; 13 (4) the first $150,000, plus one-half of any balance of the intestate estate, if one 14 or more of the decedent's surviving descendants are not descendants of the surviving spouse. 15 Section 2-103. Share of Heirs other than Surviving Spouse. 16 (a) Any part of the intestate estate not passing to the decedent's surviving spouse 17 under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the 18 following order to the individuals designated below who survive the decedent: 19 (1) to the decedent's descendants by representation; 20 (2) if there is no surviving descendant, to the decedent's parents 21 equally if both survive, or to the surviving parent if only one survives;
    • 23 1 (3) if there is no surviving descendant or parent, to the descendants 2 of the decedent's parents or either of them by representation; 3 (4) if there is no surviving descendant, parent, or descendant of a 4 parent, but the decedent is survived on both the paternal and maternal sides by 5 one or more grandparents or descendants of grandparents: 6 (A) half to the decedent's paternal grandparents equally if 7 both survive, to the surviving paternal grandparent if only one 8 survives, or to the descendants of the decedent's paternal grandparents 9 or either of them if both are deceased, the descendants taking by 10 representation; and 11 (B) to the decedent's maternal grandparents equally if both 12 survive, to the surviving maternal grandparent if only one survives, or 13 to the descendants of the decedent’s maternal grandparents or either of 14 them if both are deceased, the descendants taking by representation; 15 (5) if there is no surviving descendant, parent, or descendant of a 16 parent, but the decedent is survived by one or more grandparents or 17 descendants of grandparents on the paternal but not the maternal side, or on 18 the maternal but not the paternal side, to the decedent’s relatives on the side 19 with one or more surviving members in the manner described in paragraph 20 (4). 21 (b) If there is no taker under subsection (a), but the decedent has:
    • 24 1 (1) one deceased spouse who has one or more descendants who survive 2 the decedent, the estate or part the estate passes to that spouse’s descendants by 3 representation; or 4 (2) more than one deceased spouse who has one or more descendants who 5 survive the decedent, an equal share of the estate or part thereof passes to each set of 6 descendants by representation. 7 § 2-104. Requirement of Survival by 120 Hours; Individual in Gestation. 8 (b) For purposes of intestate succession, homestead allowance, and exempt 9 property, and except as otherwise provided in subsection (b), the following rules apply: 10 (1) An individual born before a decedent’s death who fails to survive the 11 decedent by 120 hours is deemed to have predeceased the decedent. If it is not 12 established by clear and convincing evidence that an individual born before the 13 decedent’s death survived the decedent by 120 hours, it is deemed that the individual 14 failed to survive for the required period. 15 (2) An individual in gestation at a decedent’s death is deemed to be living 16 at the decedent’s death if the individual lives 120 hours after birth. If it is not 17 established by clear and convincing evidence that an individual in gestation at the 18 decedent’s death lived 120 hours after birth, it is deemed that the individual failed to 19 survive for the required period. 20 (b) This section does not apply if its application would cause the estate to pass to 21 the state under section 2-105. 22 §2-105. No Taker. 23 If there is no taker under the provisions of this Article, the intestate estate passes to 24 the Government of the Virgin Islands.
    • 25 1 §2-106. Representation. 2 (a) Definitions. In this section: 3 (1) "Deceased descendant," "deceased parent," or "deceased 4 grandparent" means a descendant, parent, or grandparent who either 5 predeceased the decedent or is deemed to have predeceased the decedent 6 under section 2-104. 7 (2) "Surviving descendant" means a descendant who neither 8 predeceased the decedent nor is deemed to have predeceased the decedent 9 under section 2-104. 10 (b) Decedent's Descendants. If, under section 2-103 (a) (1), a decedent's 11 intestate estate or a part the estate passes "by representation" to the decedent's descendants, 12 the estate or part of the estate is divided into as many equal shares as there are (i) surviving 13 descendants in the generation nearest to the decedent which contains one or more surviving 14 descendants and (ii) deceased descendants in the same generation who left surviving 15 descendants, if any. Each surviving descendant in the nearest generation is allocated one 16 share. The remaining shares, if any, are combined and then divided in the same manner 17 among the surviving descendants of the deceased descendants as if the surviving descendants 18 who were allocated a share and their surviving descendants had predeceased the decedent. 19 (c) Descendants of Parents or Grandparents. If, under section 2-103 (a) (3) or 20 (4), a decedent's intestate estate or a part the estate passes "by representation" to the 21 descendants of the decedent's deceased parents or either of them or to the descendants of the 22 decedent's deceased paternal or maternal grandparents or either of them, the estate or part the 23 estate is divided into as many equal shares as there are (i) surviving descendants in the
    • 26 1 generation nearest the deceased parents or either of them, or the deceased grandparents or 2 either of them, that contains one or more surviving descendants and (ii) deceased 3 descendants in the same generation who left surviving descendants, if any. Each surviving 4 descendant in the nearest generation is allocated one share. The remaining shares, if any, are 5 combined and then divided in the same manner among the surviving descendants of the 6 deceased descendants as if the surviving descendants who were allocated a share and their 7 surviving descendants had predeceased the decedent. 8 § 2-107. Kindred of Half Blood. 9 Relatives of the half blood inherit the same share they would inherit if they were of the whole 10 blood. 11 § 2-108. RESERVED 12 § 2-109. Advancements. 13 (a) If an individual dies intestate as to all or a portion of the decedent’s 14 estate, property the decedent gave during the decedent's lifetime to an individual who, at the 15 decedent's death, is an heir is treated as an advancement against the heir's intestate share only 16 if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing 17 that the gift is an advancement or (ii) the decedent's contemporaneous writing or the heir's 18 written acknowledgment otherwise indicates that the gift is to be taken into account in 19 computing the division and distribution of the decedent's intestate estate. 20 (b) For purposes of subsection (a), property advanced is valued as of the time the 21 heir came into possession or enjoyment of the property or as of the time of the decedent's 22 death, whichever first occurs.
    • 27 1 (c) If the recipient of the property fails to survive the decedent, the property is not 2 taken into account in computing the division and distribution of the decedent's intestate 3 estate, unless the decedent's contemporaneous writing provides otherwise. 4 § 2-110. Debts to Decedent. 5 A debt owed to a decedent is not charged against the intestate share of any individual 6 except the debtor. If the debtor fails to survive the decedent, the debt is not taken into 7 account in computing the intestate share of the debtor's descendants. 8 § 2-111. Alienage. 9 No individual is disqualified to take as an heir because the individual or an individual 10 through whom he claims is or has been an alien. 11 §2-112. Dower and Curtesy Abolished. 12 The estates of dower and curtesy are abolished. 13 § 2-113. Individuals Related to Decedent Through Two Lines. 14 An individual who is related to the decedent through two lines of relationship is 15 entitled to only a single share based on the relationship that would entitle the individual to the 16 larger share. 17 § 2-114. Parent Barred from Inheriting in Certain Circumstances 18 (a) A parent is barred from inheriting from or through a child of the parent if: 19 (1) the parent’s parental rights were terminated and the parent-child 20 relationship was not judicially reestablished; or 21 (2) the child died before reaching 18 years of age and there is clear and 22 convincing evidence that immediately before the child’s death the parental rights of
    • 28 1 the parent could have been terminated under other Virgin Islands law on the basis of 2 nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent 3 toward the child. 4 (b) For the purpose of intestate succession from or through the deceased child, a 5 parent who is barred from inheriting under this section is treated as if the parent predeceased 6 the child. 7 SUBPART 2. PARENT-CHILD RELATIONSHIP 8 §2-115. DEFINITIONS. In this subpart: 9 (1) “Adoptee” means an individual who is adopted. 10 (2) “Assisted reproduction” means a method of causing pregnancy other than 11 sexual intercourse. 12 (3) “Divorce” includes an annulment, dissolution, and declaration of invalidity of 13 a marriage. 14 (4) “Functioned as a parent of the child” means behaving toward a child in a 15 manner consistent with being the child’s parent and performing functions that are 16 customarily performed by a parent, including fulfilling parental responsibilities toward the 17 child, recognizing or holding out the child as the individual’s child, materially participating 18 in the child’s upbringing, and residing with the child in the same household as a regular 19 member of that household. 20 (5) “Genetic father” means the man whose sperm fertilized the egg of a child’s 21 genetic mother. If the father-child relationship is established under the presumption of
    • 29 1 paternity under [insert applicable state law], the term means only the man for whom that 2 relationship is established. 3 (6) “Genetic mother” means the woman whose egg was fertilized by the sperm of 4 a child’s genetic father. 5 (7) “Genetic parent” means a child’s genetic father or genetic mother. 6 (8) “Incapacity” means the inability of an individual to function as a parent of a 7 child because of the individual’s physical or mental condition. 8 (9) “Relative” means a grandparent or a descendant of a grandparent. 9 §2-116. EFFECT OF PARENT-CHILD RELATIONSHIP. Except as otherwise provided 10 in section 2-119(b) through (e), if a parent-child relationship exists or is established under 11 this subpart, the parent is a parent of the child and the child is a child of the parent for the 12 purpose of intestate succession. 13 §2-117. NO DISTINCTION BASED ON MARITAL STATUS. Except as otherwise 14 provided in sections 2-114, 2-119, 2-120, or 2-121, a parent-child relationship exists between 15 a child and the child’s genetic parents, regardless of the parents’ marital status. 16 §2-118. ADOPTEE AND ADOPTEE’S ADOPTIVE PARENT OR PARENTS. 17 (a) Parent-Child Relationship Between Adoptee and Adoptive Parent or 18 Parents. A parent-child relationship exists between an adoptee and the adoptee’s adoptive 19 parent or parents. 20 (b) Individual in Process of Being Adopted by Married Couple; Stepchild in 21 Process of Being Adopted by Stepparent. For purposes of subsection (a):
    • 30 1 (1) an individual who is in the process of being adopted by a married 2 couple when one of the spouses dies is treated as adopted by the deceased spouse if 3 the adoption is subsequently granted to the decedent’s surviving spouse; and 4 (2) a child of a genetic parent who is in the process of being adopted by a 5 genetic parent’s spouse when the spouse dies is treated as adopted by the deceased 6 spouse if the genetic parent survives the deceased spouse by 120 hours. 7 (c) Child of Assisted Reproduction or Gestational Child in Process of Being 8 Adopted. If, after a parent-child relationship is established between a child of assisted 9 reproduction and a parent under section 2-120 or between a gestational child and a parent 10 under section 2-121, the child is in the process of being adopted by the parent’s spouse when 11 that spouse dies, the child is treated as adopted by the deceased spouse for the purpose of 12 subsection (b) (2). 13 §2-119. ADOPTEE AND ADOPTEE’S GENETIC PARENTS. 14 (a) Parent-Child Relationship Between Adoptee and Genetic Parents. Except 15 as otherwise provided in subsections (b) through (e), a parent-child relationship does not 16 exist between an adoptee and the adoptee’s genetic parents. 17 (b) Stepchild Adopted by Stepparent. A parent-child relationship exists 18 between an individual who is adopted by the spouse of either genetic parent and: 19 (1) the genetic parent whose spouse adopted the individual; and
    • 31 1 (2) the other genetic parent, but only for the purpose of the right of the 2 adoptee or a descendant of the adoptee to inherit from or through the other genetic 3 parent. 4 (c) Individual Adopted by Relative of Genetic Parent. A parent-child 5 relationship exists between both genetic parents and an individual who is adopted by a 6 relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic 7 parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to 8 inherit from or through either genetic parent. 9 (d) Individual Adopted after Death of Both Genetic Parents. A parent-child 10 relationship exists between both genetic parents and an individual who is adopted after the 11 death of both genetic parents, but only for the purpose of the right of the adoptee or a 12 descendant of the adoptee to inherit through either genetic parent. 13 (e) Child of Assisted Reproduction or Gestational Child Who Is 14 Subsequently Adopted. If, after a parent-child relationship is established between a child of 15 assisted reproduction and a parent or parents under section 2-120 or between a gestational 16 child and a parent or parents under section 2-121, the child is adopted by another or others, 17 the child’s parent or parents under section 2-120 or 2-121 are treated as the child’s genetic 18 parent or parents for the purpose of this section. 19 §2-120. CHILD CONCEIVED BY ASSISTED REPRODUCTION OTHER THAN 20 CHILD BORN TO GESTATIONAL CARRIER. 21 (a) Definitions. In this section:
    • 32 1 (1) “Birth mother” means a woman, other than a gestational carrier under 2 section 2-121, who gives birth to a child of assisted reproduction. The term is not 3 limited to a woman who is the child’s genetic mother. 4 (2) “Child of assisted reproduction” means a child conceived by means of 5 assisted reproduction by a woman other than a gestational carrier under section 2-121. 6 (3) “Third-party donor” means an individual who produces eggs or sperm 7 used for assisted reproduction, whether or not for consideration. The term does not 8 include: 9 (A) a husband who provides sperm, or a wife who provides eggs, 10 that are used for assisted reproduction by the wife; 11 (B) the birth mother of a child of assisted reproduction; or 12 (C) an individual who has been determined under subsection (e) or 13 (f) to have a parent-child relationship with a child of assisted reproduction. 14 (b) Third-Party Donor. A parent-child relationship does not exist between a 15 child of assisted reproduction and a third-party donor. 16 (c) Parent-Child Relationship with Birth Mother. A parent-child relationship 17 exists between a child of assisted reproduction and the child’s birth mother. 18 (d) Parent-Child Relationship with Husband Whose Sperm Were Used 19 During His Lifetime by His Wife for Assisted Reproduction. Except as otherwise 20 provided in subsections (i) and (j), a parent-child relationship exists between a child of
    • 33 1 assisted reproduction and the husband of the child’s birth mother if the husband provided the 2 sperm that the birth mother used during his lifetime for assisted reproduction. 3 (e) Birth Certificate: Presumptive Effect. A birth certificate identifying an 4 individual other than the birth mother as the other parent of a child of assisted reproduction 5 presumptively establishes a parent-child relationship between the child and that individual. 6 (f) Parent-Child Relationship with Another. Except as otherwise provided in 7 subsections (g), (i), and (j), and unless a parent-child relationship is established under 8 subsection (d) or (e), a parent-child relationship exists between a child of assisted 9 reproduction and an individual other than the birth mother who consented to assisted 10 reproduction by the birth mother with intent to be treated as the other parent of the child. 11 Consent to assisted reproduction by the birth mother with intent to be treated as the other 12 parent of the child is established if the individual: 13 (1) before or after the child’s birth, signed a record that, considering all 14 the facts and circumstances, evidences the individual’s consent; or 15 (2) in the absence of a signed record under paragraph (1): 16 (A) functioned as a parent of the child no later than two years after 17 the child’s birth; 18 (B) intended to function as a parent of the child no later than two 19 years after the child’s birth but was prevented from carrying out that intent by 20 death, incapacity, or other circumstances; or
    • 34 1 (C) intended to be treated as a parent of a posthumously conceived 2 child, if that intent is established by clear and convincing evidence. 3 (g) Record Signed More than Two Years after the Birth of the Child: Effect. 4 For the purpose of subsection (f) (1), neither an individual who signed a record more than 5 two years after the birth of the child, nor a relative of that individual who is not also a relative 6 of the birth mother, inherits from or through the child unless the individual functioned as a 7 parent of the child before the child reached 18 years of age. 8 (h) Presumption: Birth Mother Is Married or Surviving Spouse. For the 9 purpose of subsection (f) (2), the following rules apply: 10 (1) If the birth mother is married and no divorce proceeding is pending, in 11 the absence of clear and convincing evidence to the contrary, her spouse satisfies 12 subsection (f)(2)(A) or (B). 13 (2) If the birth mother is a surviving spouse and at her deceased spouse’s 14 death no divorce proceeding was pending, in the absence of clear and convincing 15 evidence to the contrary, her deceased spouse satisfies subsection (f)(2)(B) or (C). 16 (i) Divorce Before Placement of Eggs, Sperm, or Embryos. If a married 17 couple is divorced before placement of eggs, sperm, or embryos, a child resulting from the 18 assisted reproduction is not a child of the birth mother’s former spouse, unless the former 19 spouse consented in a record that if assisted reproduction were to occur after divorce, the 20 child would be treated as the former spouse’s child.
    • 35 1 (j) Withdrawal of Consent Before Placement of Eggs, Sperm, or Embryos. If, 2 in a record, an individual withdraws consent to assisted reproduction before placement of 3 eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that 4 individual, unless the individual subsequently satisfies subsection (f). 5 (k) When Posthumously Conceived Child Treated as in Gestation. If, under 6 this section, an individual is a parent of a child of assisted reproduction who is conceived 7 after the individual’s death, the child is treated as in gestation at the individual’s death for 8 purposes of section 2-104(a) (2) if the child is: 9 (1) in utero not later than 36 months after the individual’s death; or 10 (2) born not later than 45 months after the individual’s death. 11 §2-121. CHILD BORN TO GESTATIONAL CARRIER. 12 (a) Definitions. In this section: 13 (1) “Gestational agreement” means an enforceable or unenforceable 14 agreement for assisted reproduction in which a woman agrees to carry a child to birth 15 for an intended parent, intended parents, or an individual described in subsection (e). 16 (2) “Gestational carrier” means a woman who is not an intended parent 17 who gives birth to a child under a gestational agreement. The term is not limited to a 18 woman who is the child’s genetic mother. 19 (3) “Gestational child” means a child born to a gestational carrier under a 20 gestational agreement.
    • 36 1 (4) “Intended parent” means an individual who entered into a gestational 2 agreement providing that the individual will be the parent of a child born to a 3 gestational carrier by means of assisted reproduction. The term is not limited to an 4 individual who has a genetic relationship with the child. 5 (b) Court Order Adjudicating Parentage: Effect. A parent-child relationship is 6 conclusively established by a court order designating the parent or parents of a gestational 7 child. 8 (c) Gestational Carrier. A parent-child relationship between a gestational child 9 and the child’s gestational carrier does not exist unless the gestational carrier is: 10 (1) designated as a parent of the child in a court order described in 11 subsection (b); or 12 (2) the child’s genetic mother and a parent-child relationship do not exist 13 under this section with an individual other than the gestational carrier. 14 (d) Parent-Child Relationship with Intended Parent or Parents. In the 15 absence of a court order under subsection (b), a parent-child relationship exists between a 16 gestational child and an intended parent who: 17 (1) functioned as a parent of the child no later than two years after the 18 child’s birth; or 19 (2) died while the gestational carrier was pregnant if:
    • 37 1 (A) there were two intended parents and the other intended parent 2 functioned as a parent of the child no later than two years after the child’s 3 birth; 4 (B) there were two intended parents, the other intended parent also 5 died while the gestational carrier was pregnant, and a relative of either 6 deceased intended parent or the spouse or surviving spouse of a relative of 7 either deceased intended parent functioned as a parent of the child no later 8 than two years after the child’s birth; or 9 (C) there was no other intended parent and a relative of or the 10 spouse or surviving spouse of a relative of the deceased intended parent 11 functioned as a parent of the child no later than two years after the child’s 12 birth. 13 (e) Gestational Agreement after Death or Incapacity. In the absence of a court 14 order under subsection (b), a parent-child relationship exists between a gestational child and 15 an individual whose sperm or eggs were used after the individual’s death or incapacity to 16 conceive a child under a gestational agreement entered into after the individual’s death or 17 incapacity if the individual intended to be treated as the parent of the child. The individual’s 18 intent may be shown by: 19 (1) a record signed by the individual which considering all the facts and 20 circumstances evidences the individual’s intent; or
    • 38 1 (2) other facts and circumstances establishing the individual’s intent by 2 clear and convincing evidence. 3 (f) Presumption: Gestational Agreement after Spouse’s Death or Incapacity. 4 Except as otherwise provided in subsection (g), and unless there is clear and convincing 5 evidence of a contrary intent, an individual is deemed to have intended to be treated as the 6 parent of a gestational child for purposes of subsection (e)(2) if: 7 (1) the individual, before death or incapacity, deposited the sperm or eggs 8 that were used to conceive the child; 9 (2) when the individual deposited the sperm or eggs, the individual was 10 married and no divorce proceeding was pending; and 11 (3) the individual’s spouse or surviving spouse functioned as a parent of 12 the child no later than two years after the child’s birth. 13 (g) Subsection (f) Presumption Inapplicable. The presumption under subsection 14 (f) does not apply if there is: 15 (1) a court order under subsection (b); or 16 (2) a signed record that satisfies subsection (e) (1). 17 (h) When Posthumously Conceived Gestational Child Treated as in 18 Gestation. If, under this section, an individual is a parent of a gestational child who is 19 conceived after the individual’s death, the child is treated as in gestation at the individual’s 20 death for purposes of section 2-104(a) (2) if the child is: 21 (1) in utero not later than 36 months after the individual’s death; or
    • 39 1 (2) born not later than 45 months after the individual’s death. 2 (i) No Effect on Other Law. This section does not affect law of the Virgin 3 Islands other than this title regarding the enforceability or validity of a gestational agreement. 4 §2-122. EQUITABLE ADOPTION. This subpart does not affect the doctrine of equitable 5 adoption. 6 PART 2 7 ELECTIVE SHARE OF SURVIVING SPOUSE 8 §2-201. Definitions. 9 In this part: 10 (1) As used in sections other than section 2-205, "decedent's nonprobate transfers 11 to others" means the amounts that are included in the augmented estate under section 2-205. 12 (2) "Fractional interest in property held in joint tenancy with the right of 13 survivorship," whether the fractional interest is unilaterally severable or not, means the 14 fraction, the numerator of which is one and the denominator of which, if the decedent was a 15 joint tenant, is one plus the number of joint tenants who survive the decedent and which, if 16 the decedent was not a joint tenant, is the number of joint tenants. 17 (3) "Marriage," as it relates to a transfer by the decedent during marriage, means 18 any marriage of the decedent to the decedent's surviving spouse. 19 (4) "Nonadverse party" means a person who does not have a substantial beneficial 20 interest in the trust or other property arrangement that would be adversely affected by the 21 exercise or nonexercise of the power that the person possesses respecting the trust or other 22 property arrangement, excluding a person having a general power of appointment over 23 property who is deemed to have a beneficial interest in the property.
    • 40 1 (5) "Power" or "power of appointment" includes a power to designate the 2 beneficiary of a beneficiary designation. 3 (6) "Presently exercisable general power of appointment" means a power of 4 appointment under which, at the time in question, the decedent, whether or not the decedent 5 then had the capacity to exercise the power, held a power to create a present or future interest 6 in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke 7 or invade the principal of a trust or other property arrangement. 8 (7) "Probate estate" means property that would pass by intestate succession if the 9 decedent died without a valid will. 10 (8) "Property" includes values subject to a beneficiary designation. 11 (9) "Right to income" includes a right to payments under a commercial or private 12 annuity, an annuity trust, a unitrust, or a similar arrangement. 13 (10) "Transfer," as it relates to a transfer by or of the decedent, includes 14 (A) an exercise or release of a presently exercisable general power of 15 appointment held by the decedent, 16 (B) a lapse at death of a presently exercisable general power of 17 appointment held by the decedent, and 18 (C) an exercise, release, or lapse of a general power of appointment that 19 the decedent created in himself and of a power described in Section 2-205(2)(ii) that 20 the decedent conferred on a nonadverse party. 21 §2-202. ELECTIVE SHARE. 22 (a) Elective-Share Amount. The surviving spouse of a decedent who dies 23 domiciled in the Virgin Islands has a right of election, under the limitations and conditions
    • 41 1 stated in this part, to take an elective-share amount equal to 50 percent of the value of the 2 marital-property portion of the augmented estate. 3 (b) Supplemental Elective-Share Amount. If the sum of the amounts described 4 in sections 2-207, 2-209(a) (1), and that part of the elective-share amount payable from the 5 decedent’s net probate estate and nonprobate transfers to others under section 2-209(c) and 6 (d) is less than $75,000, the surviving spouse is entitled to a supplemental elective-share 7 amount equal to $75,000, minus the sum of the amounts described in those sections. The 8 supplemental elective-share amount is payable from the decedent’s net probate estate and 9 from recipients of the decedent’s nonprobate transfers to others in the order of priority set 10 forth in section 2-209(c) and (d). 11 (c) Effect of Election on Statutory Benefits. If the right of election is exercised 12 by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt 13 property, and family allowance, if any, are not charged against but are in addition to the 14 elective-share and supplemental elective-share amounts. 15 (d) Non-Domiciliary. The right, if any, of the surviving spouse of a decedent 16 who dies domiciled outside the Virgin Islands to take an elective share in property in the 17 Virgin Islands is governed by the law of the decedent’s domicile at death. 18 §2-203. Composition of the Augmented Estate. 19 Subject to section 2-208, the value of the augmented estate, to the extent provided in 20 sections 2-204, 2-205, 2-206, and 2-207, consists of the sum of the values of all property, 21 whether real or personal; movable or immovable, tangible or intangible, wherever situated, 22 that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, 23 the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's 24 property and nonprobate transfers to others.
    • 42 1 § 2-204. Decedent's Net Probate Estate. 2 The value of the augmented estate includes the value of the decedent's probate estate, 3 reduced by funeral and administration expenses, homestead allowance, family allowances, 4 exempt property, and enforceable claims. 5 The value of the augmented estate includes the value of the decedent's nonprobate 6 transfers to others, not included under section 2-204, of any of the following types, in the 7 amount provided respectively for each type of transfer: 8 (1) Property owned or owned in substance by the decedent immediately 9 before death that passed outside probate at the decedent's death. Property included 10 under this category consists of: 11 (i) Property over which the decedent alone, immediately before 12 death, held a presently exercisable general power of appointment. The 13 amount included is the value of the property subject to the power, to the 14 extent the property passed at the decedent's death, by exercise, release, lapse, 15 in default, or otherwise, to or for the benefit of any person other than the 16 decedent's estate or surviving spouse. 17 (ii) The decedent's fractional interest in property held by the 18 decedent in joint tenancy with the right of survivorship. The amount included 19 is the value of the decedent's fractional interest, to the extent the fractional 20 interest passed by right of survivorship at the decedent's death to a surviving 21 joint tenant other than the decedent's surviving spouse. 22 (iii) The decedent's ownership interest in property or accounts held 23 in POD, TOD, or co-ownership registration with the right of survivorship. The 24 amount included is the value of the decedent's ownership interest, to the extent
    • 43 1 the decedent's ownership interest passed at the decedent's death to or for the 2 benefit of any person other than the decedent's estate or surviving spouse. 3 (iv) Proceeds of insurance, including accidental death benefits, on 4 the life of the decedent, if the decedent owned the insurance policy 5 immediately before death or if and to the extent the decedent alone and 6 immediately before death held a presently exercisable general power of 7 appointment over the policy or its proceeds. The amount included is the value 8 of the proceeds, to the extent they were payable at the decedent's death to or 9 for the benefit of any person other than the decedent's estate or surviving 10 spouse. 11 (2) Property transferred in any of the following forms by the decedent 12 during marriage: 13 (i) Any irrevocable transfer in which the decedent retained the 14 right to the possession or enjoyment of, or to the income from, the property if 15 and to the extent the decedent's right terminated at or continued beyond the 16 decedent's death. The amount included is the value of the fraction of the 17 property to which the decedent's right related, to the extent the fraction of the 18 property passed outside probate to or for the benefit of any person other than 19 the decedent's estate or surviving spouse. 20 (ii) Any transfer in which the decedent created a power over 21 income or property, exercisable by the decedent alone or in conjunction with 22 any other person, or exercisable by a nonadverse party, to or for the benefit 23 of the decedent, creditors of the decedent, the decedent's estate, or creditors
    • 44 1 of the decedent's estate. The amount included with respect to a power over 2 property is the value of the property subject to the power, and the amount 3 included with respect to a power over income is the value of the property that 4 produces or produced the income, to the extent the power in either case was 5 exercisable at the decedent's death to or for the benefit of any person other 6 than the decedent's surviving spouse or to the extent the property passed at 7 the decedent's death, by exercise, release, lapse, in default, or otherwise, to or 8 for the benefit of any person other than the decedent's estate or surviving 9 spouse. If the power is a power over both income and property and the 10 preceding sentence produces different amounts, the amount included is the 11 greater amount. 12 (3) Property that passed during marriage and during the two-year period 13 next preceding the decedent's death as a result of a transfer by the decedent if the 14 transfer was of any of the following types: 15 (i) Any property that passed as a result of the termination of a 16 right or interest in, or power over, property that would have been included in 17 the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph 18 (2), if the right, interest, or power had not terminated until the decedent's 19 death. The amount included is the value of the property that would have been 20 included under those paragraphs if the property were valued at the time the 21 right, interest, or power terminated, and is included only to the extent the 22 property passed upon termination to or for the benefit of any person other than 23 the decedent or the decedent's estate, spouse, or surviving spouse. As used in
    • 45 1 this subparagraph, "termination," with respect to a right or interest in property, 2 occurs when the right or interest terminated by the terms of the governing 3 instrument or the decedent transferred or relinquished the right or interest, 4 and, with respect to a power over property, occurs when the power terminated 5 by exercise, release, lapse, default, or otherwise, but, with respect to a power 6 described in paragraph (1)(i), "termination" occurs when the power terminated 7 by exercise or release, but not otherwise. 8 (ii) Any transfer of or relating to an insurance policy on the life of 9 the decedent if the proceeds would have been included in the augmented 10 estate under paragraph (1) (iv) had the transfer not occurred. The amount 11 included is the value of the insurance proceeds to the extent the proceeds were 12 payable at the decedent's death to or for the benefit of any person other than 13 the decedent's estate or surviving spouse. 14 (iii) Any transfer of property, to the extent not otherwise included 15 in the augmented estate, made to or for the benefit of a person other than the 16 decedent's surviving spouse. The amount included is the value of the 17 transferred property to the extent the aggregate transfers to any one donee in 18 either of the two years exceeded $10,000. 19 § 2-205. Decedent's Nonprobate Transfers to Others. 20 The value of the augmented estate includes the value of the decedent's nonprobate 21 transfers to others, not included under section 2-204, of any of the following types, in the 22 amount provided respectively for each type of transfer:
    • 46 1 (1) Property owned or owned in substance by the decedent immediately 2 before death that passed outside probate at the decedent's death. Property included 3 under this category consists of: 4 (i) Property over which the decedent alone, immediately before 5 death, held a presently exercisable general power of appointment. The amount 6 included is the value of the property subject to the power, to the extent the 7 property passed at the decedent's death, by exercise, release, lapse, in default, 8 or otherwise, to or for the benefit of any person other than the decedent's 9 estate or surviving spouse. 10 (ii) The decedent's fractional interest in property held by the 11 decedent in joint tenancy with the right of survivorship. The amount included 12 is the value of the decedent's fractional interest, to the extent the fractional 13 interest passed by right of survivorship at the decedent's death to a surviving 14 joint tenant other than the decedent's surviving spouse. 15 (iii) The decedent's ownership interest in property or accounts held 16 in POD, TOD, or co-ownership registration with the right of survivorship. The 17 amount included is the value of the decedent's ownership interest, to the extent 18 the decedent's ownership interest passed at the decedent's death to or for the 19 benefit of any person other than the decedent's estate or surviving spouse. 20 (iv) Proceeds of insurance, including accidental death benefits, on 21 the life of the decedent, if the decedent owned the insurance policy 22 immediately before death or if and to the extent the decedent alone and 23 immediately before death held a presently exercisable general power of 24 appointment over the policy or its proceeds. The amount included is the value
    • 47 1 of the proceeds, to the extent they were payable at the decedent's death to or 2 for the benefit of any person other than the decedent's estate or surviving 3 spouse. 4 (2) Property transferred in any of the following forms by the decedent 5 during marriage: 6 (i) Any irrevocable transfer in which the decedent retained the 7 right to the possession or enjoyment of, or to the income from, the property if 8 and to the extent the decedent's right terminated at or continued beyond the 9 decedent's death. The amount included is the value of the fraction of the 10 property to which the decedent's right related, to the extent the fraction of the 11 property passed outside probate to or for the benefit of any person other than 12 the decedent's estate or surviving spouse. 13 (ii) Any transfer in which the decedent created a power over 14 income or property, exercisable by the decedent alone or in conjunction with 15 any other person, or exercisable by a nonadverse party, to or for the benefit of 16 the decedent, creditors of the decedent, the decedent's estate, or creditors of 17 the decedent's estate. The amount included with respect to a power over 18 property is the value of the property subject to the power, and the amount 19 included with respect to a power over income is the value of the property that 20 produces or produced the income, to the extent the power in either case was 21 exercisable at the decedent's death to or for the benefit of any person other 22 than the decedent's surviving spouse or to the extent the property passed at the 23 decedent's death, by exercise, release, lapse, in default, or otherwise, to or for 24 the benefit of any person other than the decedent's estate or surviving spouse.
    • 48 1 If the power is a power over both income and property and the preceding 2 sentence produces different amounts, the amount included is the greater 3 amount. 4 (3) Property that passed during marriage and during the two-year period 5 next preceding the decedent's death as a result of a transfer by the decedent if the 6 transfer was of any of the following types: 7 (i) Any property that passed as a result of the termination of a 8 right or interest in, or power over, property that would have been included in 9 the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph 10 (2), if the right, interest, or power had not terminated until the decedent's 11 death. The amount included is the value of the property that would have 12 been included under those paragraphs if the property were valued at the time 13 the right, interest, or power terminated, and is included only to the extent the 14 property passed upon termination to or for the benefit of any person other 15 than the decedent or the decedent's estate, spouse, or surviving spouse. As 16 used in this subparagraph, "termination," with respect to a right or interest in 17 property, occurs when the right or interest terminated by the terms of the 18 governing instrument or the decedent transferred or relinquished the right or 19 interest, and, with respect to a power over property, occurs when the power 20 terminated by exercise, release, lapse, default, or otherwise, but, with 21 respect to a power described in paragraph (1)(i), "termination" occurs when 22 the power terminated by exercise or release, but not otherwise. 23 (ii) Any transfer of or relating to an insurance policy on the life of 24 the decedent if the proceeds would have been included in the augmented
    • 49 1 estate under paragraph (1) (iv) had the transfer not occurred. The amount 2 included is the value of the insurance proceeds to the extent the proceeds were 3 payable at the decedent's death to or for the benefit of any person other than 4 the decedent's estate or surviving spouse. 5 (iii) Any transfer of property, to the extent not otherwise included 6 in the augmented estate, made to or for the benefit of a person other than the 7 decedent's surviving spouse. The amount included is the value of the 8 transferred property to the extent the aggregate transfers to any one donee in 9 either of the two years exceeded $10,000. 10 § 2-206. Decedent's Nonprobate Transfers to the Surviving Spouse. 11 Excluding property passing to the surviving spouse under the federal Social Security 12 System, the value of the augmented estate includes the value of the decedent's nonprobate 13 transfers to the decedent's surviving spouse, which consist of all property that passed outside 14 probate at the decedent's death from the decedent to the surviving spouse by reason of the 15 decedent's death, including: 16 (1) the decedent's fractional interest in property held as a joint tenant with the 17 right of survivorship, to the extent that the decedent's fractional interest passed to the 18 surviving spouse as surviving joint tenant, 19 (2) the decedent's ownership interest in property or accounts held in co-ownership 20 registration with the right of survivorship, to the extent the decedent's ownership interest 21 passed to the surviving spouse as surviving co owner, and
    • 50 1 (3) all other property that would have been included in the augmented estate 2 under section 2-205 (1) or (2) had it passed to or for the benefit of a person other than the 3 decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate 4 creditors. 5 § 2-207. Surviving Spouse's Property and Nonprobate Transfers to Others. 6 (a) Included Property. Except to the extent included in the augmented estate 7 under section 2-204 or 2-206, the value of the augmented estate includes the value of: 8 (1) property that was owned by the decedent's surviving spouse at the 9 decedent's death, including: 10 (i) the surviving spouse's fractional interest in property held in 11 joint tenancy with the right of survivorship, 12 (ii) the surviving spouse's ownership interest in property or 13 accounts held in co-ownership registration with the right of survivorship, and 14 (iii) property that passed to the surviving spouse by reason of the 15 decedent's death, but not including the spouse's right to homestead allowance, 16 family allowance, exempt property, or payments under the federal Social 17 Security system; and 18 (2) property that would have been included in the surviving spouse's 19 nonprobate transfers to others, other than the spouse's fractional and ownership 20 interests included under subsection (a)(1)(i) or (ii), had the spouse been the decedent. 21 (b) Time of Valuation. Property included under this section is valued at the 22 decedent's death, taking the fact that the decedent predeceased the spouse into account, but,
    • 51 1 for purposes of subsection (a) (1) (i) and (ii), the values of the spouse's fractional and 2 ownership interests are determined immediately before the decedent's death if the decedent 3 was then a joint tenant or a co owner of the property or accounts. For purposes of subsection 4 (a)(2), proceeds of insurance that would have been included in the spouse's nonprobate 5 transfers to others under Section 2-205(1)(iv) are not valued as if he were deceased. 6 (c) Reduction for Enforceable Claims. The value of property included under 7 this section is reduced by enforceable claims against the surviving spouse. 8 §2-208. Exclusions, Valuation, and Overlapping Application. 9 (a) Exclusions. The value of any property is excluded from the decedent's 10 nonprobate transfers to others (i) to the extent the decedent received adequate and full 11 consideration in money or money's worth for a transfer of the property or (ii) if the property 12 was transferred with the written joinder of, or if the transfer was consented to in writing by, 13 the surviving spouse. 14 (b) Valuation. The value of property: 15 (1) included in the augmented estate under section 2-205, 2-206, or 2-207 16 is reduced in each category by enforceable claims against the included property; and 17 (2) includes the commuted value of any present or future interest and the 18 commuted value of amounts payable under any trust, life insurance settlement option, 19 annuity contract, public or private pension, disability compensation, death benefit or 20 retirement plan, or any similar arrangement, exclusive of the federal Social Security 21 system. 22 (c) Overlapping Application; No Double Inclusion. In case of overlapping 23 application to the same property of the paragraphs or subparagraphs of section 2-205, 2-206,
    • 52 1 or 2-207, the property is included in the augmented estate under the provision yielding the 2 greatest value, and under only one overlapping provision if they all yield the same value. 3 §2-209. Sources from Which Elective Share Payable. 4 (a) Elective-Share Amount Only. In a proceeding for an elective share, the 5 following are applied first to satisfy the elective-share amount and to reduce or eliminate any 6 contributions due from the decedent's probate estate and recipients of the decedent's 7 nonprobate transfers to others: 8 (1) amounts included in the augmented estate under section 2-204 9 which pass or have passed to the surviving spouse by testate or intestate 10 succession and amounts included in the augmented estate under section 2-206; 11 and 12 (2) amounts included in the augmented estate under section 2-207 13 up to the applicable percentage thereof. For the purposes of this subsection, 14 the "applicable percentage" is twice the elective-share percentage set forth in 15 the schedule in section 2-202 (a) appropriate to the length of time the spouse 16 and the decedent were married to each other. 17 (b) Unsatisfied Balance of Elective-Share Amount; Supplemental 18 Elective-Share Amount. If, after the application of subsection (a), the elective-share 19 amount is not fully satisfied or the surviving spouse is entitled to a supplemental 20 elective-share amount, amounts included in the decedent's probate estate and in the 21 decedent's nonprobate transfers to others, other than amounts included under section 2-205 22 (3) (i) or (iii), are applied first to satisfy the unsatisfied balance of the elective-share amount 23 or the supplemental elective-share amount. The decedent's probate estate and that portion of
    • 53 1 the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied 2 balance of the elective-share amount or for the supplemental elective-share amount is 3 equitably apportioned among the recipients of the decedent's probate estate and of that 4 portion of the decedent's nonprobate transfers to others in proportion to the value of their 5 interests therein. 6 (c) Unsatisfied Balance of Elective-Share and Supplemental Elective-Share 7 Amounts. If, after the application of subsections (a) and (b), the elective-share or 8 supplemental elective-share amount is not fully satisfied, the remaining portion of the 9 decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance 10 of the elective-share or supplemental elective-share amount is equitably apportioned among 11 the recipients of the remaining portion of the decedent's nonprobate transfers to others in 12 proportion to the value of their interests therein. 13 §2-210. Personal Liability of Recipients. 14 (a) Only original recipients of the decedent's nonprobate transfers to others, and 15 the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the 16 donees have the property or its proceeds, are liable to make a proportional contribution 17 toward satisfaction of the surviving spouse's elective-share or supplemental elective-share 18 amount. A person liable to make contribution may choose to give up the proportional part of 19 the decedent's nonprobate transfers to him or to pay the value of the amount for which he is 20 liable. 21 (b) If any section or part of any section of this Part is preempted by federal law 22 with respect to a payment, an item of property, or any other benefit included in the decedent's 23 nonprobate transfers to others, a person who, not for value, receives the payment, item of
    • 54 1 property, or any other benefit is obligated to return the payment, item of property, or benefit, 2 or is personally liable for the amount of the payment or the value of that item of property or 3 benefit, as provided in section 2-209, to the person who would have been entitled to it were 4 that section or part of that section not preempted. 5 §2-211. Proceeding for Elective Share; Time Limit. 6 (a) Except as provided in subsection (b), the election must be made by filing in 7 the court and mailing or delivering to the personal representative, if any, a petition for the 8 elective share within nine months after the date of the decedent's death, or within six months 9 after the probate of the decedent's will, whichever limitation later expires. The surviving 10 spouse must give notice of the time and place set for hearing to persons interested in the 11 estate and to the distributees and recipients of portions of the augmented estate whose 12 interests will be adversely affected by the taking of the elective share. Except as provided in 13 subsection (b), the decedent's nonprobate transfers to others are not included within the 14 augmented estate for the purpose of computing the elective-share, if the petition is filed more 15 than nine months after the decedent's death. 16 (b) Within nine months after the decedent's death, the surviving spouse may 17 petition the court for an extension of time for making an election. If, within nine months after 18 the decedent's death, the spouse gives notice of the petition to all persons interested in the 19 decedent's nonprobate transfers to others, the court for cause shown by the surviving spouse 20 may extend the time for election. If the court grants the spouse's petition for an extension, 21 the decedent's nonprobate transfers to others are not excluded from the augmented estate for 22 the purpose of computing the elective-share and supplemental elective-share amounts, if the 23 spouse makes an election by filing in the court and mailing or delivering to the personal
    • 55 1 representative, if any, a petition for the elective share within the time allowed by the 2 extension. 3 (c) The surviving spouse may withdraw his demand for an elective share at any 4 time before entry of a final determination by the court. 5 (d) After notice and hearing, the court shall determine the elective-share and 6 supplemental elective-share amounts, and shall order its payment from the assets of the 7 augmented estate or by contribution as appears appropriate under sections 2-209 and 2-210. 8 If it appears that a fund or property included in the augmented estate has not come into the 9 possession of the personal representative, or has been distributed by the personal 10 representative, the court nevertheless shall fix the liability of any person who has any interest 11 in the fund or property or who has possession thereof, whether as trustee or otherwise. The 12 proceeding may be maintained against fewer than all persons against whom relief could be 13 sought, but no person is subject to contribution in any greater amount than the person would 14 have been under sections 2-209 and 2-210 had relief been secured against all persons subject 15 to contribution. 16 (e) An order or judgment of the court may be enforced as necessary in suit for 17 contribution or payment in other courts of the Virgin Islands or other jurisdictions. 18 § 2-212. Right of Election Personal to Surviving Spouse; Incapacitated Surviving 19 Spouse. 20 (a) Surviving Spouse Must Be Living at Time of Election. The right of 21 election may be exercised only by a surviving spouse who is living when the petition for the 22 elective share is filed in the court under section 2-211 (a). If the election is not exercised by
    • 56 1 the surviving spouse personally, it may be exercised on the surviving spouse's behalf by the 2 surviving spouse’s conservator, guardian, or agent under the authority of a power of attorney. 3 (b) Incapacitated Surviving Spouse. If the election is exercised on behalf of a 4 surviving spouse who is an incapacitated person, that portion of the elective-share and 5 supplemental elective-share amounts due from the decedent’s probate estate and recipients of 6 the decedent’s nonprobate transfers to others under section 2-209(b) and (c) must be placed 7 in a custodial trust for the benefit of the surviving spouse under the provisions of the Virgin 8 Islands Uniform Custodial Trust Act, except as modified below. For the purposes of this 9 subsection, an election on behalf of a surviving spouse by an agent under a durable power of 10 attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. 11 For purposes of the custodial trust established by this subsection, (i) the electing guardian, 12 conservator, or agent is the custodial trustee, (ii) the surviving spouse is the beneficiary, and 13 (iii) the custodial trust is deemed to have been created by the decedent spouse by written 14 transfer that takes effect at the decedent spouse’s death and that directs the custodial trustee 15 to administer the custodial trust as for an incapacitated beneficiary. 16 (c) Custodial Trust. For the purposes of subsection (b), the Virgin Islands 17 Uniform Custodial Trust Act must be applied as if section 10-106(b) thereof were repealed 18 and sections 10-102(e), 10-109(b), and 10-117(a) were amended to read as follows: 19 (1) Neither an incapacitated beneficiary nor anyone acting on behalf of an 20 incapacitated beneficiary has a power to terminate the custodial trust; but if the 21 beneficiary regains capacity, the beneficiary then acquires the power to terminate the 22 custodial trust by delivering to the custodial trustee a writing signed by the
    • 57 1 beneficiary declaring the termination. If not previously terminated, the custodial trust 2 terminates on the death of the beneficiary. 3 (2) If the beneficiary is incapacitated, the custodial trustee shall expend so 4 much or all of the custodial trust property as the custodial trustee considers advisable 5 for the use and benefit of the beneficiary and individuals who were supported by the 6 beneficiary when the beneficiary became incapacitated, or who are legally entitled to 7 support by the beneficiary. Expenditures may be made in the manner, when, and to 8 the extent that the custodial trustee determines suitable and proper, without court 9 order but with regard to other support, income, and property of the beneficiary and 10 benefits of medical or other forms of assistance from any state or federal government 11 or governmental agency for which the beneficiary must qualify on the basis of need. 12 (3) Upon the beneficiary’s death, the custodial trustee shall transfer the 13 unexpended custodial trust property in the following order: (i) under the residuary 14 clause, if any, of the will of the beneficiary’s predeceased spouse against whom the 15 elective share was taken, as if that predeceased spouse died immediately after the 16 beneficiary; or (ii) to that predeceased spouse’s heirs under section 2-711 of this 17 Code. 18 §2-213. Waiver of Right to Elect and of Other Rights. 19 (a) The right of election of a surviving spouse and the rights of the surviving 20 spouse to homestead allowance, exempt property, and family allowance, or any of them, may 21 be waived, wholly or partially, before or after marriage, by a written contract, agreement, or 22 waiver signed by the surviving spouse. 23 (b) A surviving spouse's waiver is not enforceable if the surviving spouse proves 24 that:
    • 58 1 (1) he did not execute the waiver voluntarily; or 2 (2) the waiver was unconscionable when it was executed and, before 3 execution of the waiver, he: 4 (i) was not provided a fair and reasonable disclosure of the 5 property or financial obligations of the decedent; 6 (ii) did not voluntarily and expressly waive, in writing, any right to 7 disclosure of the property or financial obligations of the decedent beyond the 8 disclosure provided; and 9 (iii) did not have, or reasonably could not have had, an adequate 10 knowledge of the property or financial obligations of the decedent. 11 (c) An issue of unconscionability of a waiver is for decision by the court as a 12 matter of law. 13 (d) Unless it provides to the contrary, a waiver of "all rights," or equivalent 14 language, in the property or estate of a present or prospective spouse or a complete property 15 settlement entered into after or in anticipation of separation or divorce is a waiver of all rights 16 of elective share, homestead allowance, exempt property, and family allowance by each 17 spouse in the property of the other and a renunciation by each of all benefits that would 18 otherwise pass to the spouse from the other by intestate succession or by virtue of any will 19 executed before the waiver or property settlement. 20 § 2-214. Protection of Payors and Other Third Parties. 21 (a) Although under section 2-205 a payment, item of property, or other benefit is 22 included in the decedent's nonprobate transfers to others, a payor or other third party is not 23 liable for having made a payment or transferred an item of property or other benefit to a
    • 59 1 beneficiary designated in a governing instrument, or for having taken any other action in 2 good faith reliance on the validity of a governing instrument, upon request and satisfactory 3 proof of the decedent's death, before the payor or other third party received written notice 4 from the surviving spouse or spouse's representative of an intention to file a petition for the 5 elective share or that a petition for the elective share has been filed. A payor or other third 6 party is liable for payments made or other actions taken after the payor or other third party 7 received written notice of an intention to file a petition for the elective share or that a petition 8 for the elective share has been filed. 9 (b) A written notice of intention to file a petition for the elective share or that a 10 petition for the elective share has been filed must be mailed to the payor's or other third 11 party's main office or home by registered or certified mail, return receipt requested, or served 12 upon the payor or other third party in the same manner as a summons in a civil action. Upon 13 receipt of written notice of intention to file a petition for the elective share or that a petition 14 for the elective share has been filed, a payor or other third party may pay any amount owed 15 or transfer or deposit any item of property held by it to or with the court having jurisdiction 16 of the probate proceedings relating to the decedent's estate, or if no proceedings have been 17 commenced, to or with the court having jurisdiction of probate proceedings relating to 18 decedents' estates located on the island of the decedent's residence. The court shall hold the 19 funds or item of property, and, upon its determination under section 2-211 (d), shall order 20 disbursement in accordance with the determination. If no petition is filed in the court within 21 the specified time under section 2-211 (a) or, if filed, the demand for an elective share is 22 withdrawn under section 2-211(c), the court shall order disbursement to the designated 23 beneficiary. Payments or transfers to the court or deposits made into court discharge the
    • 60 1 payor or other third party from all claims for amounts so paid or the value of property so 2 transferred or deposited. 3 (c) Upon petition to the probate court by the beneficiary designated in a 4 governing instrument, the court may order that all or part of the property be paid to the 5 beneficiary in an amount and subject to conditions consistent with this Part. 6 PART 3 7 SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS 8 § 2-301. Entitlement of Spouse; Premarital Will. 9 (a) If a testator's surviving spouse married the testator after the testator executed 10 his will, the surviving spouse is entitled to receive, as an intestate share, no less than the 11 value of the share of the estate he would have received if the testator had died intestate as to 12 that portion of the testator's estate, if any, that neither is devised to a child of the testator who 13 was born before the testator married the surviving spouse and who is not a child of the 14 surviving spouse nor is devised to a descendant of such a child or passes under Sections 15 2-603 or 2-604 to such a child or to a descendant of such a child, unless: 16 (1) it appears from the will or other evidence that the will was made in 17 contemplation of the testator's marriage to the surviving spouse; 18 (2) the will expresses the intention that it is to be effective 19 notwithstanding any subsequent marriage; or 20 (3) the testator provided for the spouse by transfer outside the will and the 21 intent that the transfer is in lieu of a testamentary provision is shown by the testator's 22 statements or is reasonably inferred from the amount of the transfer or other evidence.
    • 61 1 (b) In satisfying the share provided by this section, devises made by the will to 2 the testator's surviving spouse, if any, are applied first, and other devises, other than a devise 3 to a child of the testator who was born before the testator married the surviving spouse and 4 who is not a child of the surviving spouse or a devise or substitute gift under Section 2-603 or 5 2-604 to a descendant of such a child, abate as provided in Section 3-902. 6 §2-302. Omitted Children. 7 (a) Except as provided in subsection (b), if a testator fails to provide in his will 8 for any of his children born or adopted after the execution of the will, the omitted after-born 9 or after-adopted child receives a share in the estate as follows: 10 (1) If the testator had no child living when he executed the will, an 11 omitted after-born or after-adopted child receives a share in the estate equal in value 12 to that which the child would have received had the testator died intestate, unless the 13 will devised all or substantially all of the estate to the other parent of the omitted child 14 and that other parent survives the testator and is entitled to take under the will. 15 (2) If the testator had one or more children living when he executed the 16 will, and the will devised property or an interest in property to one or more of the 17 then-living children, an omitted after-born or after-adopted child is entitled to share in 18 the testator's estate as follows: 19 (i) The portion of the testator's estate in which the omitted after- 20 born or after-adopted child is entitled to share is limited to devises made to the 21 testator's then-living children under the will. 22 (ii) The omitted after-born or after-adopted child is entitled to 23 receive the share of the testator's estate, as limited in subparagraph (i), that the 24 child would have received had the testator included all omitted after-born and
    • 62 1 after-adopted children with the children to whom devises were made under the 2 will and had given an equal share of the estate to each child. 3 (iii) To the extent feasible, the interest granted an omitted 4 after-born or after-adopted child under this section must be of the same 5 character, whether equitable or legal, present or future, as that devised to the 6 testator's then-living children under the will. 7 (iv) In satisfying a share provided by this paragraph, devises to the 8 testator's children who were living when the will was executed abate ratably. 9 In abating the devises of the then-living children, the court shall preserve to 10 the maximum extent possible the character of the testamentary plan adopted 11 by the testator. 12 (b) Neither subsection (a) (1) nor subsection (a) (2) applies if: 13 (1) it appears from the will that the omission was intentional; or 14 (2) the testator provided for the omitted after-born or after-adopted child 15 by transfer outside the will and the intent that the transfer is in lieu of a testamentary 16 provision is shown by the testator's statements or is reasonably inferred from the 17 amount of the transfer or other evidence. 18 (c) If at the time of execution of the will the testator fails to provide in his will for 19 a living child solely because he believes the child to be dead, the child is entitled to share in 20 the estate as if the child were an omitted after-born or after-adopted child. 21 (d) In satisfying a share provided by subsection (a) (1), devises made by the will 22 abate under section 3-902. 23
    • 63 1 PART 4 2 EXEMPT PROPERTY AND ALLOWANCES 3 §2-401. Applicable Law. 4 This part applies to the estate of a decedent who dies domiciled in the Virgin Islands. 5 Rights to homestead allowance, exempt property, and family allowance for a decedent who 6 dies not domiciled in the Virgin Islands are governed by the law of the decedent's domicile at 7 death. 8 §2-402. Homestead Allowance. 9 A decedent's surviving spouse is entitled to a homestead allowance of $22,500. If 10 there is no surviving spouse, each minor child and each dependent child of the decedent is 11 entitled to a homestead allowance amounting to $22,500 divided by the number of minor and 12 dependent children of the decedent. The homestead allowance is exempt from and has 13 priority over all claims against the estate. Homestead allowance is in addition to any share 14 passing to the surviving spouse or minor or dependent child by the will of the decedent, 15 unless otherwise provided, by intestate succession, or by way of elective share. 16 §2-403. Exempt Property. 17 In addition to the homestead allowance, the decedent's surviving spouse is entitled 18 from the estate to a value, not exceeding $15,000 in excess of any security interests therein, 19 in household furniture, automobiles, furnishings, appliances, and personal effects. If there is 20 no surviving spouse, the decedent's children are entitled jointly to the same value. If 21 encumbered chattels are selected and the value in excess of security interests, plus that of 22 other exempt property, is less than $15,000, or if there is not $15,000 worth of exempt 23 property in the estate, the spouse or children are entitled to other assets of the estate, if any, 24 to the extent necessary to make up the $15,000 value. Rights to exempt property and assets
    • 64 1 needed to make up a deficiency of exempt property have priority over all claims against the 2 estate, but the right to any assets to make up a deficiency of exempt property abates as 3 necessary to permit earlier payment of homestead allowance and family allowance. These 4 rights are in addition to any benefit or share passing to the surviving spouse or children by 5 the decedent's will, unless otherwise provided, by intestate succession, or by way of elective 6 share. 7 § 2-404. Family Allowance. 8 (a) In addition to the right to homestead allowance and exempt property, the 9 decedent's surviving spouse and minor children whom the decedent was obligated to support 10 and children who were in fact being supported by the decedent are entitled to a reasonable 11 allowance in money out of the estate for their maintenance during the period of 12 administration, which allowance may not continue for longer than one year if the estate is 13 inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in 14 periodic installments. It is payable to the surviving spouse, if living, for the use of the 15 surviving spouse and minor and dependent children; otherwise to the children, or persons 16 having their care and custody. If a minor child or dependent child is not living with the 17 surviving spouse, the allowance may be made partially to the child or his guardian or other 18 person having the child's care and custody, and partially to the spouse, as their needs may 19 appear. The family allowance is exempt from and has priority over all claims except the 20 homestead allowance. 21 (b) The family allowance is not chargeable against any benefit or share passing to 22 the surviving spouse or children by the will of the decedent, unless otherwise provided, by 23 intestate succession or by way of elective share. The death of any person entitled to family 24 allowance terminates the right to allowances not yet paid.
    • 65 1 § 2-405. Source, Determination, and Documentation. 2 (a) If the estate is otherwise sufficient, property specifically devised may not be 3 used to satisfy rights to homestead allowance or exempt property. Subject to this restriction, 4 the surviving spouse, guardians of minor children or children who are adults may select 5 property of the estate as homestead allowance and exempt property. The personal 6 representative may make those selections if the surviving spouse, the children, or the 7 guardians of the minor children are unable or fail to do so within a reasonable time or there is 8 no guardian of a minor child. The personal representative may execute an instrument or deed 9 of distribution to establish the ownership of property taken as homestead allowance or 10 exempt property. The personal representative may determine the family allowance in a lump 11 sum not exceeding $27,000 or periodic installments not exceeding $2,250 per month for one 12 year, and may disburse funds of the estate in payment of the family allowance and any part of 13 the homestead allowance payable in cash. The personal representative or an interested 14 person aggrieved by any selection, determination, payment, proposed payment, or failure to 15 act under this section may petition the court for appropriate relief, which may include a 16 family allowance other than that which the personal representative determined or could have 17 determined. 18 (b) If the right to an elective share is exercised on behalf of a surviving spouse 19 who is an incapacitated person, the personal representative may add any unexpended portions 20 payable under the homestead allowance, exempt property, and family allowance to the trust 21 established under section 2-212 (b). 22 23
    • 66 1 PART 5 2 WILLS, WILL CONTRACTS, AND CUSTODY AND DEPOSIT OF WILLS 3 §2-501. Who May Make A Will. 4 An individual 18 years of age or older who is of sound mind may make a will. 5 § 2-502. Execution; Witnessed Wills; Holographic Wills. 6 (a) Except as provided in subsection (b) and in sections 2-503, 2-506, and 2-513, 7 a will must be: 8 (1) in writing; 9 (2) signed by the testator or in the testator's name by some other 10 individual in the testator's conscious presence and by the testator's direction; 11 and 12 (3) either: 13 (A) signed by at least two individuals, each of whom signed 14 within a reasonable time after the individual witnessed either the 15 signing of the will as described in paragraph (2) or the testator's 16 acknowledgment of that signature or acknowledgment of the will; or 17 (B) acknowledged by the testator before a notary public or other 18 individual authorized by law to take acknowledgments. 19 (b) A will that does not comply with subsection (a) is valid as a holographic will, 20 whether or not witnessed, if the signature and material portions of the document are in the 21 testator's handwriting. 22 (c) Intent that the document constitutes the testator's will can be established by 23 extrinsic evidence, including, for holographic wills, portions of the document that are not in 24 the testator's handwriting.
    • 67 1 §2-503. Harmless Error 2 Although a document or writing added upon a document was not executed in 3 compliance with section 2-502, the document or writing is treated as if it had been executed 4 in compliance with that section if the proponent of the document or writing establishes by 5 clear and convincing evidence that the decedent intended the document or writing to 6 constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an 7 addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly 8 revoked will or of a formerly revoked portion of the will. 9 §2-504. Self-Proved Will. 10 (a) A will that is executed with attesting witnesses may be simultaneously 11 executed, attested, and made self-proved, by acknowledgment thereof by the testator and 12 affidavits of the witnesses, each made before an officer authorized to administer oaths under 13 the laws of the state in which execution occurs and evidenced by the officer's certificate, 14 under official seal, in substantially the following form: 15 I, _______, the testator, sign my name to this instrument this ____ day of _______, 16 and being first duly sworn, do hereby declare to the undersigned authority that I sign and 17 execute this instrument as my will and that I sign it willingly (or willingly direct another to 18 sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, 19 and that I am 18 years of age or older, of sound mind, and under no constraint or undue 20 influence. 21 22 _________________ 23 Testator 24
    • 68 1 We, _______, _______, the witnesses, sign our names to this instrument, being first 2 duly sworn, and do hereby declare to the undersigned authority that the testator signs and 3 executes this instrument as (his)(her) will and that he signs it willingly or willingly directs 4 another to sign for (him)(her) , and that each of us, in the presence and hearing of the testator, 5 hereby signs this will as witness to the testator's signing, and that to the best of our 6 knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or 7 undue influence. 8 9 10 _________________ 11 Witness 12 13 _________________ 14 Witness 15 16 (Territory of the Virgin Islands) (State of _____________________) 17 (Division) (County) of_________________ 18 Subscribed, sworn to and acknowledged before me by _______, the testator, and 19 subscribed and sworn to before me by _______, and _______, witnesses, this ____ day of 20 _______. 21 22 (Seal) 23 (Signed) 24 ______________________________
    • 69 1 2 _______________________ 3 _______ 4 (Official capacity of officer) 5 6 (b) A will that is executed with attesting witnesses may be made self-proved at 7 any time after its execution by the acknowledgment thereof by the testator and the affidavits 8 of the witnesses, each made before an officer authorized to administer oaths under the laws 9 of the state in which the acknowledgment occurs and evidenced by the officer's certificate, 10 under the official seal, attached or annexed to the will in substantially the following form: 11 (Territory of the Virgin Islands) ( State of) ______________ 12 (Division) (County) of _________________ 13 We, _______, _______, and _______, the testator and the witnesses, 14 respectively, whose names are signed to the attached or foregoing instrument, being 15 first duly sworn, do hereby declare to the undersigned authority that the testator 16 signed and executed the instrument as the testator's will and that the testator had 17 signed willingly (or willingly directed another to sign for (him)(her), and that 18 (he)(she) executed it as his free and voluntary act for the purposes therein expressed, 19 and that each of the witnesses, in the presence and hearing of the testator, signed the 20 will as witness and that to the best of (his)(her) knowledge the testator was at that 21 time 18 years or age or older, of sound mind, and under no constraint or undue 22 influence. 23 24 _________________
    • 70 1 Testator 2 3 4 _________________ 5 Witness 6 7 8 _________________ 9 Witness 10 11 Subscribed, sworn to and acknowledged before me by _______, the testator, and 12 subscribed and sworn to before me by _______, and _______, witnesses, this ____, day of 13 _______. 14 15 (Seal) 16 (Signed) 17 ______________________________ 18 19 _______________________ 20 _______ 21 (Official capacity of officer) 22 23 (c) A signature affixed to a self-proving affidavit attached to a will is considered 24 a signature affixed to the will, if necessary to prove the will's due execution.
    • 71 1 §2-505. Who May Witness. 2 (a) An individual generally competent to be a witness may act as a witness to a 3 will. 4 (b) The signing of a will by an interested witness does not invalidate the will or 5 any provision of it. 6 §2-506. Choice of Law as to Execution. 7 A written will is valid if executed in compliance with section 2-502 or 2-503 or if its 8 execution complies with the law at the time of execution of the place where the will is 9 executed, or of the law of the place where at the time of execution or at the time of death the 10 testator is domiciled, has a place of abode, or is a national. 11 § 2-507. Revocation by Writing or by Act. 12 (a) A will or any part thereof is revoked: 13 (1) by executing a subsequent will that revokes the previous will or part 14 expressly or by inconsistency; or 15 (2) by performing a revocatory act on the will, if the testator performed 16 the act with the intent and for the purpose of revoking the will or part or if another 17 individual performed the act in the testator's conscious presence and by the testator's 18 direction. For purposes of this paragraph, "revocatory act on the will" includes 19 burning, tearing, canceling, obliterating, or destroying the will or any part of it. A 20 burning, tearing, or canceling is a "revocatory act on the will," whether or not the 21 burn, tear, or cancellation touched any of the words on the will.
    • 72 1 (b) If a subsequent will does not expressly revoke a previous will, the execution 2 of the subsequent will wholly revokes the previous will by inconsistency if the testator 3 intended the subsequent will to replace rather than supplement the previous will. 4 (c) The testator is presumed to have intended a subsequent will to replace rather 5 than supplement a previous will if the subsequent will makes a complete disposition of the 6 testator's estate. If this presumption arises and is not rebutted by clear and convincing 7 evidence, the previous will is revoked; only the subsequent will is operative on the testator's 8 death. 9 (d) The testator is presumed to have intended a subsequent will to supplement 10 rather than replace a previous will if the subsequent will does not make a complete 11 disposition of the testator's estate. If this presumption arises and is not rebutted by clear and 12 convincing evidence, the subsequent will revokes the previous will only to the extent the 13 subsequent will is inconsistent with the previous will; each will is fully operative on the 14 testator's death to the extent they are not inconsistent. 15 § 2-508. Revocation by Change of Circumstances. 16 Except as provided in sections 2-803 and 2-804, a change of circumstances does not 17 revoke a will or any part of it. 18 § 2-509. Revival of Revoked Will. 19 (a) If a subsequent will that wholly revoked a previous will is thereafter revoked 20 by a revocatory act under section 2-507 (a) (2), the previous will remains revoked unless it is 21 revived. The previous will is revived if it is evident from the circumstances of the revocation 22 of the subsequent will or from the testator's contemporary or subsequent declarations that the 23 testator intended the previous will to take effect as executed.
    • 73 1 (b) If a subsequent will that partly revoked a previous will is thereafter revoked 2 by a revocatory act under Section 2-507 (a) (2), a revoked part of the previous will is revived 3 unless it is evident from the circumstances of the revocation of the subsequent will or from 4 the testator's contemporary or subsequent declarations that the testator did not intend the 5 revoked part to take effect as executed. 6 (c) If a subsequent will that revoked a previous will in whole or in part is 7 thereafter revoked by another, later, will, the previous will remains revoked in whole or in 8 part, unless it or its revoked part is revived. The previous will or its revoked part is revived 9 to the extent it appears from the terms of the later will that the testator intended the previous 10 will to take effect. 11 § 2-510. Incorporation by Reference. 12 A writing in existence when a will is executed may be incorporated by reference if 13 the language of the will manifests this intent and describes the writing sufficiently to permit 14 its identification. 15 § 2-511. Testamentary Additions to Trusts. 16 (a) A will may validly devise property to the trustee of a trust established or to be 17 established (i) during the testator's lifetime by the testator, by the testator and some other 18 person, or by some other person, including a funded or unfunded life insurance trust, 19 although the settlor has reserved any or all rights of ownership of the insurance contracts, or 20 (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the 21 testator's will and its terms are set forth in a written instrument, other than a will, executed 22 before, concurrently with, or after the execution of the testator's will or in another 23 individual's will if that other individual has predeceased the testator, regardless of the 24 existence, size, or character of the corpus of the trust. The devise is not invalid because the
    • 74 1 trust is amendable or revocable, or because the trust was amended after the execution of the 2 will or the testator's death. 3 (b) Unless the testator's will provides otherwise, property devised to a trust 4 described in subsection (a) is not held under a testamentary trust of the testator, but it 5 becomes a part of the trust to which it is devised, and must be administered and disposed of 6 in accordance with the provisions of the governing instrument setting forth the terms of the 7 trust, including any amendments thereto made before or after the testator's death. 8 (c) Unless the testator's will provide otherwise, a revocation or termination of the 9 trust before the testator's death causes the devise to lapse. 10 §2-512. Events of Independent Significance. 11 A will may dispose of property by reference to acts and events that have significance 12 apart from their effect upon the dispositions made by the will, whether they occur before or 13 after the execution of the will or before or after the testator's death. The execution or 14 revocation of another individual's will is such an event. 15 §2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal 16 Property. 17 Whether or not the provisions relating to holographic wills apply, a will may refer to 18 a written statement or list to dispose of items of tangible personal property not otherwise 19 specifically disposed of by the will, other than money. To be admissible under this section as 20 evidence of the intended disposition, the writing must be signed by the testator and must 21 describe the items and the devisees with reasonable certainty. The writing may be referred to 22 as one to be in existence at the time of the testator's death; it may be prepared before or after 23 the execution of the will; it may be altered by the testator after its preparation; and it may be 24 a writing that has no significance apart from its effect on the dispositions made by the will.
    • 75 1 § 2-514. Contracts Concerning Succession. 2 A contract to make a will or devise, or not to revoke a will or devise, or to die 3 intestate, if executed after the effective date of this Article, may be established only by (i) 4 provisions of a will stating material provisions of the contract, (ii) an express reference in a 5 will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing 6 signed by the decedent evidencing the contract. The execution of a joint will or mutual wills 7 does not create a presumption of a contract not to revoke the will or wills. 8 §2-515. Deposit of Will with Court in Testator's Lifetime. 9 A will may be deposited by the testator or the testator's agent with any court for 10 safekeeping, under rules of the court. The will must be sealed and kept confidential. During 11 the testator's lifetime, a deposited will must be delivered only to the testator or to a person 12 authorized in writing signed by the testator to receive the will. A conservator may be 13 allowed to examine a deposited will of a protected testator under procedures designed to 14 maintain the confidential character of the document to the extent possible, and to ensure that 15 it will be resealed and kept on deposit after the examination. Upon being informed of the 16 testator's death, the court shall notify any person designated to receive the will and deliver it 17 to that person on request; or the court may deliver the will to the appropriate court. 18 § 2-516. Duty of Custodian of Will; Liability. 19 After the death of a testator and on request of an interested person, a person having 20 custody of a will of the testator shall deliver it with reasonable promptness to a person able to 21 secure its probate and if none is known, to an appropriate court. A person who willfully fails 22 to deliver a will is liable to any person aggrieved for any damages that may be sustained by 23 the failure. A person who willfully refuses or fails to deliver a will after being ordered by the
    • 76 1 court in a proceeding brought for the purpose of compelling delivery is subject to penalty for 2 contempt of court. 3 § 2-517. Penalty Clause for Contest. 4 A provision in a will purporting to penalize an interested person for contesting the 5 will or instituting other proceedings relating to the estate is unenforceable if probable cause 6 exists for instituting proceedings. 7 PART 6 8 RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS 9 §2-601. Scope. 10 In the absence of a finding of a contrary intention, the rules of construction in this 11 part control the construction of a will. 12 §2-602. Will May Pass All Property and After-Acquired Property. 13 A will may provide for the passage of all property the testator owns at death and all 14 property acquired by the estate after the testator's death. 15 §2-603. Antilapse; Deceased Devisee; Class Gifts. 16 (a) Definitions. In this section: 17 (1) "Alternative devise" means a devise that is expressly created by the 18 will and, under the terms of the will, can take effect instead of another devise on the 19 happening of one or more events, including survival of the testator or failure to 20 survive the testator, whether an event is expressed in condition precedent, condition 21 subsequent, or any other form. A residuary clause constitutes an alternative devise 22 with respect to a nonresiduary devise only if the will specifically provides that, upon 23 lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass 24 under the residuary clause.
    • 77 1 (2) "Class member" includes an individual who fails to survive the testator 2 but who would have taken under a devise in the form of a class gift had he survived 3 the testator. 4 (3) "Devise" includes an alternative devise, a devise in the form of a class 5 gift, and an exercise of a power of appointment. 6 (4) "Devisee" includes (i) a class member if the devise is in the form of a 7 class gift, (ii) an individual or class member who was deceased at the time the testator 8 executed his will as well as an individual or class member who was then living but 9 who failed to survive the testator, and (iii) an appointee under a power of appointment 10 exercised by the testator's will. 11 (5) "Stepchild" means a child of the surviving, deceased, or former spouse 12 of the testator or of the donor of a power of appointment, and not of the testator or 13 donor. 14 (6) "Surviving devisee" or "surviving descendant" means a devisee or a 15 descendant who neither predeceased the testator nor is deemed to have predeceased 16 the testator under section 2-702. 17 (7) "Testator" includes the donee of a power of appointment if the power 18 is exercised in the testator's will. 19 (b) Substitute Gift. If a devisee fails to survive the testator and is a grandparent, 20 a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of 21 appointment exercised by the testator's will, the following apply: 22 (1) Except as provided in paragraph (4), if the devise is not in the form of 23 a class gift and the deceased devisee leaves surviving descendants, a substitute gift is
    • 78 1 created in the devisee's surviving descendants. They take by representation the 2 property to which the devisee would have been entitled had the devisee survived the 3 testator. 4 (2) Except as provided in paragraph (4), if the devise is in the form of a 5 class gift, other than a devise to "issue," "descendants," "heirs of the body," "heirs," 6 "next of kin," "relatives," or "family," or a class described by language of similar 7 import, a substitute gift is created in the surviving descendant's of any deceased 8 devisee. The property to which the devisees would have been entitled had all of them 9 survived the testator passes to the surviving devisees and the surviving descendants of 10 the deceased devisees. Each surviving devisee takes the share to which he would 11 have been entitled had the deceased devisees survived the testator. Each deceased 12 devisee's surviving descendants who are substituted for the deceased devisee take by 13 representation the share to which the deceased devisee would have been entitled had 14 the deceased devisee survived the testator. For the purposes of this paragraph, 15 "deceased devisee" means a class member who failed to survive the testator and left 16 one or more surviving descendants. 17 (3) For the purposes of section 2-601, words of survivorship, such as in a 18 devise to an individual "if he survives me," or in a devise to "my surviving children," 19 are not, in the absence of additional evidence, sufficient indications of intent contrary 20 to the application of this section. 21 (4) If the will creates an alternative devise with respect to a devise for 22 which a substitute gift is created by paragraph (1) or (2), the substitute gift is 23 superseded by the alternative devise only if an expressly designated devisee of the 24 alternative devise is entitled to take under the will.
    • 79 1 (5) Unless the language creating a power of appointment expressly 2 excludes the substitution of the descendants of an appointee for the appointee, a 3 surviving descendant of a deceased appointee of a power of appointment can be 4 substituted for the appointee under this section, whether or not the descendant is an 5 object of the power. 6 (c) More Than One Substitute Gift; Which One Takes. If, under subsection 7 (b), substitute gifts are created and not superseded with respect to more than one devise and 8 the devises are alternative devises, one to the other, the determination of which of the 9 substitute gifts takes effect is resolved as follows: 10 (1) Except as provided in paragraph (2), the devised property passes 11 under the primary substitute gift. 12 (2) If there is a younger-generation devise, the devised property passes 13 under the younger-generation substitute gift and not under the primary substitute gift. 14 (3) In this subsection: 15 (i) "Primary devise" means the devise that would have taken 16 effect had all the deceased devisees of the alternative devises who left 17 surviving descendants survived the testator. 18 (ii) "Primary substitute gift" means the substitute gift created with 19 respect to the primary devise. 20 (iii) "Younger-generation devise" means a devise that (A) is to a 21 descendant of a devisee of the primary devise, (B) is an alternative devise with 22 respect to the primary devise, (C) is a devise for which a substitute gift is 23 created, and (D) would have taken effect had all the deceased devisees who
    • 80 1 left surviving descendants survived the testator except the deceased devisee or 2 devisees of the primary devise. 3 (iv) "Younger-generation substitute gift" means the substitute gift 4 created with respect to the younger-generation devise. 5 §2-604. Failure of Testamentary Provision. 6 (a) Except as provided in section 2-603, a devise, other than a residuary devise, 7 that fails for any reason becomes a part of the residue. 8 (b) Except as provided in section 2-603, if the residue is devised to two or more 9 persons, the share of a residuary devisee that fails for any reason passes to the other residuary 10 devisee, or to other residuary devisees in proportion to the interest of each in the remaining 11 part of the residue. 12 § 2-605. Increase in Securities; Accessions. 13 (a) If a testator executes a will that devises securities and the testator then owned 14 securities that meet the description in the will, the devise includes additional securities owned 15 by the testator at death to the extent the additional securities were acquired by the testator 16 after the will was executed as a result of the testator's ownership of the described securities 17 and are securities of any of the following types: 18 (1) securities of the same organization acquired by reason of action 19 initiated by the organization or any successor, related, or acquiring organization, 20 excluding any acquired by exercise of purchase options; 21 (2) securities of another organization acquired as a result of a merger, 22 consolidation, reorganization, or other distribution by the organization or any 23 successor, related, or acquiring organization; or
    • 81 1 (3) securities of the same organization acquired as a result of a plan of 2 reinvestment. 3 (b) Distributions in cash before death with respect to a described security are not 4 part of the devise. 5 §2-606. Nonademption of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or 6 Insurance; Sale by Conservator or Agent. 7 (a) A specific devisee has a right to specifically devised property in the testator's 8 estate at the testator’s death and to: 9 (1) any balance of the purchase price, together with any security 10 agreement, owed by a purchaser at the testator’s death by reason of sale of the 11 property; 12 (2) any amount of a condemnation award for the taking of the property 13 unpaid at death; 14 (3) any proceeds unpaid at death on fire or casualty insurance on or other 15 recovery for injury to the property; 16 (4) any property owned by the testator at death and acquired as a result of 17 foreclosure, or obtained in lieu of foreclosure, of the security interest for a 18 specifically devised obligation; 19 (5) any real property or tangible personal property owned by the testator at 20 death which the testator acquired as a replacement for specifically devised real 21 property or tangible personal property; and 22 (6) if not covered by paragraphs (1) through (5), a pecuniary devise equal 23 to the value as of its date of disposition of other specifically devised property 24 disposed of during the testator’s lifetime but only to the extent it is established that
    • 82 1 ademption would be inconsistent with the testator's manifested plan of distribution or 2 that at the time the will was made, the date of disposition or otherwise, the testator did 3 not intend ademption of the devise. 4 (b) If specifically devised property is sold or mortgaged by a conservator or by an 5 agent acting within the authority of a durable power of attorney for an incapacitated principal 6 or a condemnation award, insurance proceeds, or recovery for injury to the property is paid to 7 a conservator or to an agent acting within the authority of a durable power of attorney for an 8 incapacitated principal the specific devisee has the right to a general pecuniary devise equal 9 to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance 10 proceeds, or the recovery. 11 (c) The right of a specific devisee under subsection (b) is reduced by any right the 12 devisee has under subsection (a). 13 (d) For the purposes of the references in subsection (b) to a conservator, 14 subsection (b) does not apply if after the sale, mortgage, condemnation, casualty, or recovery, 15 it was adjudicated that the testator's incapacity ceased and the testator survived the 16 adjudication for at least one year. 17 (e) For the purposes of the references in subsection (b) to an agent acting within 18 the authority of a durable power of attorney an incapacitated principal, (i)"incapacitated 19 principal" means a principal who is an incapacitated person, (ii) no adjudication of incapacity 20 before death is necessary, and (iii) the acts of an agent within the authority of a durable 21 power of attorney are presumed to be for an incapacitated principal. 22 §2-607. Nonexoneration. 23 A specific devise passes subject to any mortgage interest existing at the date of death, 24 without right of exoneration, regardless of a general directive in the will to pay debts.
    • 83 1 § 2-608. Exercise of Power of Appointment. 2 In the absence of a requirement that a power of appointment be exercised by a 3 reference, or by an express or specific reference, to the power, a general residuary clause in a 4 will, or a will making general disposition of all of the testator's property, expresses an 5 intention to exercise a power of appointment held by the testator only if (i) the power is a 6 general power and the creating instrument does not contain a gift if the power is not 7 exercised or (ii) the testator's will manifests an intention to include the property subject to the 8 power. 9 § 2-609. Ademption by Satisfaction. 10 (a) Property a testator gave in the testator’s lifetime to a person is treated as a 11 satisfaction of a devise in whole or in part, only if (i) the will provides for deduction of the 12 gift, (ii) the testator declared in a contemporaneous writing that the gift is in satisfaction of 13 the devise or that its value is to be deducted from the value of the devise, or (iii) the devisee 14 acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be 15 deducted from the value of the devise. 16 (b) For purposes of partial satisfaction, property given during lifetime is valued as 17 of the time the devisee came into possession or enjoyment of the property or at the testator's 18 death, whichever occurs first. 19 (c) If the devisee fails to survive the testator, the gift is treated as a full or partial 20 satisfaction of the devise, as appropriate, in applying sections 2-603 and 2-604, unless the 21 testator's contemporaneous writing provides otherwise. 22 23
    • 84 1 PART 7 2 RULES OF CONSTRUCTION APPLICABLE TO WILLS 3 AND OTHER GOVERNING INSTRUMENTS 4 §2-701. Scope. 5 In the absence of a finding of a contrary intention, the rules of construction in this 6 part control the construction of a governing instrument. The rules of construction in this part 7 apply to a governing instrument of any type, except as the application of a particular section 8 is limited by its terms to a specific type or types of provision or governing instrument. 9 §2-702. Requirement of Survival by 120 Hours. 10 (a) Requirement of Survival by 120 Hours Under Probate Code. For the 11 purposes of this Code, except as provided in subsection (d), an individual who is not 12 established by clear and convincing evidence to have survived an event, including the death 13 of another individual, by 120 hours is deemed to have predeceased the event. 14 (b) Requirement of Survival by 120 Hours under Governing Instrument. 15 Except as provided in subsection (d), for purposes of a provision of a governing instrument 16 that relates to an individual surviving an event, including the death of another individual, an 17 individual who is not established by clear and convincing evidence to have survived the 18 event by 120 hours is deemed to have predeceased the event. 19 (c) Co-owners With Right of Survivorship; Requirement of Survival by 120 20 Hours. Except as provided in subsection (d), if (i) it is not established by clear and 21 convincing evidence that one of two co-owners with right of survivorship survived the other 22 co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours 23 and one-half as if the other had survived by 120 hours and (ii) there are more than two 24 co-owners and it is not established by clear and convincing evidence that at least one of them
    • 85 1 survived the others by 120 hours, the property passes in the proportion that one bears to the 2 whole number of co-owners. For the purposes of this subsection, "co-owners with right of 3 survivorship" includes joint tenants, tenants by the entireties, and other co-owners of 4 property or accounts held under circumstances that entitles one or more to the whole of the 5 property or account on the death of the other or others. 6 (d) Exceptions. Survival by 120 hours is not required if: 7 (1) the governing instrument contains language dealing explicitly with 8 simultaneous deaths or deaths in a common disaster and that language is operable 9 under the facts of the case; 10 (2) the governing instrument expressly indicates that an individual is not 11 required to survive an event, including the death of another individual, by any 12 specified period or expressly requires the individual to survive the event by a 13 specified period; but survival of the event or the specified period must be established 14 by clear and convincing evidence; 15 (3) the imposition of a 120-hour requirement of survival would cause a 16 nonvested property interest or a power of appointment to fail to qualify for validity 17 under Section 2-901 (a) (1), (b) (1), or (c) (1) or to become invalid under Section 18 2-901 (a) (2), (b) (2), or (c) (2); but survival must be established by clear and 19 convincing evidence; or 20 (4) the application of a 120-hour requirement of survival to multiple 21 governing instruments would result in an unintended failure or duplication of a 22 disposition; but survival must be established by clear and convincing evidence. 23 (e) Protection of Payors and Other Third Parties.
    • 86 1 (1) A payor or other third party is not liable for having made a payment or 2 transferred an item of property or any other benefit to a beneficiary designated in a 3 governing instrument who, under this section, is not entitled to the payment or item of 4 property, or for having taken any other action in good faith reliance on the 5 beneficiary's apparent entitlement under the terms of the governing instrument, before 6 the payor or other third party received written notice of a claimed lack of entitlement 7 under this section. A payor or other third party is liable for a payment made or other 8 action taken after the payor or other third party received written notice of a claimed 9 lack of entitlement under this section. 10 (2) Written notice of a claimed lack of entitlement under paragraph (1) 11 must be mailed to the payor's or other third party's main office or home by registered 12 or certified mail, return receipt requested, or served upon the payor or other third 13 party in the same manner as a summons in a civil action. Upon receipt of written 14 notice of a claimed lack of entitlement under this section, a payor or other third party 15 may pay any amount owed or transfer or deposit any item of property held by it to or 16 with the Court having jurisdiction of the probate proceedings relating to the 17 decedent's estate, or if no proceedings have been commenced, to or with the Court 18 having jurisdiction of probate proceedings relating to decedents' estates located in the 19 county of the decedent's residence. The Court shall hold the funds or item of property 20 and, upon its determination under this section, shall order disbursement in accordance 21 with the determination. Payments, transfers, or deposits made to or with the Court 22 discharge the payor or other third party from all claims for the value of amounts paid 23 to or items of property transferred to or deposited with the Court.
    • 87 1 (f) Protection of Bona Fide Purchasers; Personal Liability of Recipient. 2 (1) A person who purchases property for value and without notice, or who 3 receives a payment or other item of property in partial or full satisfaction of a legally 4 enforceable obligation, is neither obligated under this section to return the payment, 5 item of property, or benefit nor is liable under this section for the amount of the 6 payment or the value of the item of property or benefit. But a person who, not for 7 value, receives a payment, item of property, or any other benefit to which the person 8 is not entitled under this section is obligated to return the payment, item of property, 9 or benefit, or is personally liable for the amount of the payment or the value of the 10 item of property or benefit, to the person who is entitled to it under this section. 11 (2) If this section or any part of this section is preempted by federal law 12 with respect to a payment, an item of property, or any other benefit covered by this 13 section, a person who, not for value, receives the payment, item of property, or any 14 other benefit to which the person is not entitled under this section is obligated to 15 return the payment, item of property, or benefit, or is personally liable for the amount 16 of the payment or the value of the item of property or benefit, to the person who 17 would have been entitled to it were this section or part of this section not preempted. 18 § 2-703. Choice of Law as to Meaning and Effect of Governing Instrument. 19 The meaning and legal effect of a governing instrument is determined by the local 20 law of the state selected in the governing instrument, unless the application of that law is 21 contrary to the provisions relating to the elective share described in Part 2, the provisions 22 relating to exempt property and allowances described in Part 4, or any other public policy of 23 the Virgin Islands otherwise applicable to the disposition.
    • 88 1 § 2-704. Power of Appointment; Meaning of Specific Reference Requirement. 2 If a governing instrument creating a power of appointment expressly requires that the 3 power be exercised by a reference, an express reference, or a specific reference, to the power 4 or its source, it is presumed that the donor's intention, in requiring that the donee exercise the 5 power by making reference to the particular power or to the creating instrument, was to 6 prevent an inadvertent exercise of the power. 7 § 2-705. Class Gifts Construed to Accord With Intestate Succession; Exceptions. 8 (a) Definitions. In this section: 9 (1) “Adoptee” has the meaning set forth in section 2-115. 10 (2) “Child of assisted reproduction” has the meaning set forth in Section 11 2-120. 12 (3) “Distribution date” means the date when an immediate or postponed 13 class gift takes effect in possession or enjoyment. 14 (4) “Functioned as a parent of the adoptee” has the meaning set forth in 15 section 2-115, substituting “adoptee” for “child” in that definition. 16 (5) “Functioned as a parent of the child” has the meaning set forth in 17 section 2-115. 18 (6) “Genetic parent” has the meaning set forth in section 2-115. 19 (7) “Gestational child” has the meaning set forth in section 2-121. 20 (8) “Relative” has the meaning set forth in section 2-115. 21 (b) [Terms of Relationship. A class gift that uses a term of relationship to 22 identify the class members includes a child of assisted reproduction, a gestational child, 23 and, except as otherwise provided in subsections (e) and (f), an adoptee and a child born
    • 89 1 to parents who are not married to each other, and their respective descendants if 2 appropriate to the class, in accordance with the rules for intestate succession regarding 3 parent-child relationships. 4 (c) Relatives by Marriage. Terms of relationship in a governing instrument that 5 do not differentiate relationships by blood from those by marriage, such as uncles, aunts, 6 nieces, or nephews, are construed to exclude relatives by marriage, unless: 7 (1) when the governing instrument was executed, the class was then and 8 foreseeably would be empty; or 9 (2) the language or circumstances otherwise establish that relatives by 10 marriage were intended to be included. 11 (d) Half-Blood Relatives. Terms of relationship in a governing instrument that 12 do not differentiate relationships by the half blood from those by the whole blood, such as 13 brothers, sisters, nieces, or nephews, are construed to include both types of relationships. 14 (e) [Transferor Not Genetic Parent.] In construing a dispositive provision of a 15 transferor who is not the genetic parent a child of a genetic parent is not considered the child 16 of the genetic parent unless the genetic parent, a relative of the genetic parent, or the spouse 17 or surviving spouse of the genetic parent or of a relative of the genetic parent functioned as a 18 parent of the child before the child reached 18 years of age. 19 (f) Transferor Not Adoptive Parent. In construing a dispositive provision of a 20 transferor who is not the adoptive parent, an adoptee is not considered the child of the 21 adoptive parent unless:
    • 90 1 (1) the adoption took place before the adoptee reached 18 years of age; 2 (2) the adoptive parent was the adoptee’s stepparent or foster parent; or 3 (3) the adoptive parent functioned as a parent of the adoptee before the 4 adoptee reached 18 years of age. 5 (g) Class-Closing Rules. The following rules apply for purposes of the class- 6 closing rules: 7 (1) A child in utero at a particular time is treated as living at that time if 8 the child lives 120 hours after birth. 9 (2) If a child of assisted reproduction or a gestational child is conceived 10 posthumously and the distribution date is the deceased parent’s death, the child is 11 treated as living on the distribution date if the child lives 120 hours after birth and 12 was in utero not later than 36 months after the deceased parent’s death or born not 13 later than 45 months after the deceased parent’s death. 14 (3) An individual who is in the process of being adopted when the class 15 closes is treated as adopted when the class closes if the adoption is subsequently 16 granted. 17 §2-706. Life Insurance; Retirement Plan; Account With POD Designation; 18 Transfer-on-Death Registration; Deceased Beneficiary. 19 (a) Definitions. In this section: 20 (1) "Alternative beneficiary designation" means a beneficiary designation 21 that is expressly created by the governing instrument and, under the terms of the 22 governing instrument, can take effect instead of another beneficiary designation on 23 the happening of one or more events, including survival of the decedent or failure to
    • 91 1 survive the decedent, whether an event is expressed in condition precedent, condition 2 subsequent, or any other form. 3 (2) "Beneficiary" means the beneficiary of a beneficiary designation under 4 which the beneficiary must survive the decedent and includes (i) a class member if 5 the beneficiary designation is in the form of a class gift and (ii) an individual or class 6 member who was deceased at the time the beneficiary designation was executed as 7 well as an individual or class member who was then living but who failed to survive 8 the decedent, but excludes a joint tenant of a joint tenancy with the right of 9 survivorship and a party to a joint and survivorship account. 10 (3) "Beneficiary designation" includes an alternative beneficiary 11 designation and a beneficiary designation in the form of a class gift. 12 (4) "Class member" includes an individual who fails to survive the 13 decedent but who would have taken under a beneficiary designation in the form of a 14 class gift had the individual survived the decedent. 15 (5) "Stepchild" means a child of the decedent's surviving, deceased, or 16 former spouse, and not of the decedent. 17 (6) "Surviving beneficiary" or "surviving descendant" means a beneficiary 18 or a descendant who neither predeceased the decedent nor is deemed to have 19 predeceased the decedent under section 2-702. 20 (b) Substitute Gift. If a beneficiary fails to survive the decedent and is a 21 grandparent, a descendant of a grandparent, or a stepchild of the decedent, the following 22 apply: 23 (1) Except as provided in paragraph (4), if the beneficiary designation is 24 not in the form of a class gift and the deceased beneficiary leaves surviving
    • 92 1 descendants, a substitute gift is created in the beneficiary's surviving descendants. 2 They take by representation the property to which the beneficiary would have been 3 entitled had the beneficiary survived the decedent. 4 (2) Except as provided in paragraph (4), if the beneficiary designation is in 5 the form of a class gift, other than a beneficiary designation to "issue," "descendants," 6 "heirs of the body," "heirs," "next of kin," "relatives," or "family," or a class described 7 by language of similar import, a substitute gift is created in the surviving descendants 8 of any deceased beneficiary. The property to which the beneficiaries would have 9 been entitled, had all of them survived the decedent, passes to the surviving 10 beneficiaries and the surviving descendants of the deceased beneficiaries. Each 11 surviving beneficiary takes the share to which he would have been entitled had the 12 deceased beneficiaries survived the decedent. Each deceased beneficiary's surviving 13 descendants who are substituted for the deceased beneficiary take by representation 14 the share to which the deceased beneficiary would have been entitled had the 15 deceased beneficiary survived the decedent. For the purposes of this paragraph, 16 "deceased beneficiary" means a class member who failed to survive the decedent and 17 left one or more surviving descendants. 18 (3) For the purposes of section 2-701, words of survivorship, such as in a 19 beneficiary designation to an individual "if he survives me," or in a beneficiary 20 designation to "my surviving children," are not, in the absence of additional evidence, 21 sufficient indications of an intent contrary to the application of this section. 22 (4) If a governing instrument creates an alternative beneficiary designation 23 with respect to a beneficiary designation for which a substitute gift is created by 24 paragraph (1) or (2), the substitute gift is superseded by the alternative beneficiary
    • 93 1 designation only if an expressly designated beneficiary of the alternative beneficiary 2 designation is entitled to take. 3 (c) More Than One Substitute Gift; Which One Takes. If, under subsection 4 (b), substitute gifts are created and not superseded with respect to more than one beneficiary 5 designation and the beneficiary designations are alternative beneficiary designations, one to 6 the other, the determination of which of the substitute gifts takes effect is resolved as follows: 7 (1) Except as provided in paragraph (2), the property passes under the 8 primary substitute gift. 9 (2) If there is a younger-generation beneficiary designation, the property 10 passes under the younger-generation substitute gift and not under the primary 11 substitute gift. 12 (3) In this subsection: 13 (i) "Primary beneficiary designation" means the beneficiary 14 designation that would have taken effect had all the deceased beneficiaries of 15 the alternative beneficiary designations who left surviving descendants 16 survived the decedent. 17 (ii) "Primary substitute gift" means the substitute gift created with 18 respect to the primary beneficiary designation. 19 (iii) ”Younger-generation beneficiary designation" means a 20 beneficiary designation that (A) is to a descendant of a beneficiary of the 21 primary beneficiary designation, (B) is an alternative beneficiary designation 22 with respect to the primary beneficiary designation, (C) is a beneficiary 23 designation for which a substitute gift is created, and (D)would have taken
    • 94 1 effect had all the deceased beneficiaries who left surviving descendants 2 survived the decedent except the deceased beneficiary or beneficiaries of the 3 primary beneficiary designation. 4 (iv) "Younger-generation substitute gift" means the substitute gift 5 created with respect to the younger-generation beneficiary designation. 6 (d) Protection of Payors. 7 (1) A payor is protected from liability in making payments under the 8 terms of the beneficiary designation until the payor has received written notice of a 9 claim to a substitute gift under this section. Payment made before the receipt of 10 written notice of a claim to a substitute gift under this section discharges the payor, 11 but not the recipient, from all claims for the amounts paid. A payor is liable for a 12 payment made after the payor has received written notice of the claim. A recipient is 13 liable for a payment received, whether or not written notice of the claim is given. 14 (2) The written notice of the claim must be mailed to the payor's main 15 office or home by registered or certified mail, return receipt requested, or served upon 16 the payor in the same manner as a summons in a civil action. Upon receipt of written 17 notice of the claim, a payor may pay any amount owed by it to the court having 18 jurisdiction of the probate proceedings relating to the decedent's estate or, if no 19 proceedings have been commenced, to the court having jurisdiction of probate 20 proceedings relating to decedents' estates located in the county of the decedent's 21 residence. The court shall hold the funds and, upon its determination under this 22 section, shall order disbursement in accordance with the determination. Payment 23 made to the court discharges the payor from all claims for the amounts paid. 24 (e) Protection of Bona Fide Purchasers; Personal Liability of Recipient.
    • 95 1 (1) A person who purchases property for value and without notice, or who 2 receives a payment or other item of property in partial or full satisfaction of a legally 3 enforceable obligation, is neither obligated under this section to return the payment, 4 item of property, or benefit nor is liable under this section for the amount of the 5 payment or the value of the item of property or benefit. But a person who, not for 6 value, receives a payment, item of property, or any other benefit to which the person 7 is not entitled under this section is obligated to return the payment, item of property, 8 or benefit, or is personally liable for the amount of the payment or the value of the 9 item of property or benefit, to the person who is entitled to it under this section. 10 (2) If this section or any part of this section is preempted by federal law 11 with respect to a payment, an item of property, or any other benefit covered by this 12 section, a person who, not for value, receives the payment, item of property, or any 13 other benefit to which the person is not entitled under this section is obligated to 14 return the payment, item of property, or benefit, or is personally liable for the amount 15 of the payment or the value of the item of property or benefit, to the person who 16 would have been entitled to it were this section or part of this section not preempted. 17 §2-707. Survivorship with Respect to Future Interests under Terms of Trust; Substitute 18 Takers. 19 (a) Definitions. In this section: 20 (1) "Alternative future interest" means an expressly created future interest 21 that can take effect in possession or enjoyment instead of another future interest on 22 the happening of one or more events, including survival of an event or failure to 23 survive an event, whether an event is expressed in condition precedent, condition 24 subsequent, or any other form. A residuary clause in a will does not create an
    • 96 1 alternative future interest with respect to a future interest created in a nonresiduary 2 devise in the will, whether or not the will specifically provides that lapsed or failed 3 devises are to pass under the residuary clause. 4 (2) "Beneficiary" means the beneficiary of a future interest and includes a 5 class member if the future interest is in the form of a class gift. 6 (3) "Class member" includes an individual who fails to survive the 7 distribution date but who would have taken under a future interest in the form of a 8 class gift had the individual survived the distribution date. 9 (4) "Distribution date," with respect to a future interest, means the time 10 when the future interest is to take effect in possession or enjoyment. The distribution 11 date need not occur at the beginning or end of a calendar day, but can occur at a time 12 during the course of a day. 13 (5) "Future interest" includes an alternative future interest and a future 14 interest in the form of a class gift. 15 (6) "Future interest under the terms of a trust" means a future interest that 16 was created by a transfer creating a trust or to an existing trust or by an exercise of a 17 power of appointment to an existing trust, directing the continuance of an existing 18 trust, designating a beneficiary of an existing trust, or creating a trust. 19 (7) "Surviving beneficiary" or "surviving descendant" means a beneficiary 20 or a descendant who neither predeceased the distribution date nor is deemed to have 21 predeceased the distribution date under section 2-702. 22 (b) Survivorship Required; Substitute Gift. A future interest under the terms 23 of a trust is contingent on the beneficiary's surviving the distribution date. If a beneficiary of
    • 97 1 a future interest under the terms of a trust fails to survive the distribution date, the following 2 apply: 3 (1) Except as provided in paragraph (4), if the future interest is not in the 4 form of a class gift and the deceased beneficiary leaves surviving descendants, a 5 substitute gift is created in the beneficiary's surviving descendants. They take by 6 representation the property to which the beneficiary would have been entitled had the 7 beneficiary survived the distribution date. 8 (2) Except as provided in paragraph (4), if the future interest is in the form 9 of a class gift, other than a future interest to "issue," "descendants," "heirs of the 10 body," "heirs," "next of kin," "relatives," or "family," or a class described by language 11 of similar import, a substitute gift is created in the surviving descendants of any 12 deceased beneficiary. The property to which the beneficiaries would have been 13 entitled had all of them survived the distribution date passes to the surviving 14 beneficiaries and the surviving descendants of the deceased beneficiaries. Each 15 surviving beneficiary takes the share to which the surviving beneficiary would have 16 been entitled had the deceased beneficiaries survived the distribution date. Each 17 deceased beneficiary's surviving descendants who are substituted for the deceased 18 beneficiary take by representation the share to which the deceased beneficiary would 19 have been entitled had the deceased beneficiary survived the distribution date. For 20 the purposes of this paragraph, "deceased beneficiary" means a class member who 21 failed to survive the distribution date and left one or more surviving descendants. 22 (3) For the purposes of section 2-701, words of survivorship attached to a 23 future interest are not, in the absence of additional evidence, a sufficient indication of 24 an intent contrary to the application of this section. Words of survivorship include
    • 98 1 words of survivorship that relate to the distribution date or to an earlier or an 2 unspecified time, whether those words of survivorship are expressed in condition 3 precedent, condition subsequent, or any other form. 4 (4) If a governing instrument creates an alternative future interest with 5 respect to a future interest for which a substitute gift is created by paragraph (1) or 6 (2), the substitute gift is superseded by the alternative future interest only if an 7 expressly designated beneficiary of the alternative future interest is entitled to take in 8 possession or enjoyment. 9 (c) More Than One Substitute Gift; Which One Takes. If, under subsection 10 (b), substitute gifts are created and not superseded with respect to more than one future 11 interest and the future interests are alternative future interests, one to the other, the 12 determination of which of the substitute gifts takes effect is resolved as follows: 13 (1) Except as provided in paragraph (2), the property passes under the 14 primary substitute gift. 15 (2) If there is a younger-generation future interest, the property passes 16 under the younger-generation substitute gift and not under the primary substitute gift. 17 (3) In this subsection: 18 (i) "Primary future interest" means the future interest that would 19 have taken effect had all the deceased beneficiaries of the alternative future 20 interests who left surviving descendants survived the distribution date. 21 (ii) "Primary substitute gift" means the substitute gift created with 22 respect to the primary future interest. 23 (iii) "Younger-generation future interest" means a future interest 24 that (A) is to a descendant of a beneficiary of the primary future interest, (B)
    • 99 1 is an alternative future interest with respect to the primary future interest, (C) 2 is a future interest for which a substitute gift is created, and (D) would have 3 taken effect had all the deceased beneficiaries who left surviving descendants 4 survived the distribution date except the deceased beneficiary or beneficiaries 5 of the primary future interest. 6 (iv) "Younger-generation substitute gift" means the substitute gift 7 created with respect to the younger-generation future interest. 8 (d) If No Other Takers, Property Passes Under Residuary Clause or to 9 Transferor's Heirs. Except as provided in subsection (e), if, after the application of 10 subsections (b) and (c), there is no surviving taker, the property passes in the following order: 11 (1) if the trust was created in a nonresiduary devise in the transferor's will 12 or in a codicil to the transferor's will, the property passes under the residuary clause in 13 the transferor's will; for purposes of this section, the residuary clause is treated as 14 creating a future interest under the terms of a trust. 15 (2) if no taker is produced by the application of paragraph (1), the 16 property passes to the transferor's heirs under section 2-711. 17 (e) If No Other Takers and If Future Interest Created by Exercise of Power 18 of Appointment. If, after the application of subsections (b) and (c), there is no surviving 19 taker and if the future interest was created by the exercise of a power of appointment: 20 (1) the property passes under the donor's gift-in-default clause, if any, 21 which clause is treated as creating a future interest under the terms of a trust; and 22 (2) if no taker is produced by the application of paragraph (1), the 23 property passes as provided in subsection (d). For purposes of subsection (d),
    • 100 1 "transferor" means the donor if the power was a nongeneral power and means the 2 donee if the power was a general power. 3 §2-708. Class Gifts to "Descendants," "Issue," or "Heirs of the Body"; Form of 4 Distribution if None Specified. 5 If a class gift in favor of "descendants," "issue," or "heirs of the body" does not 6 specify the manner in which the property is to be distributed among the class members, the 7 property is distributed among the class members who are living when the interest is to take 8 effect in possession or enjoyment, in such shares as they would receive, under the applicable 9 law of intestate succession, if the designated ancestor had then died intestate owning the 10 subject matter of the class gift. 11 § 2-709. Representation; Per Capita at Each Generation; Per Stirpes. 12 (a) Definitions. In this section: 13 (1) "Deceased child" or "deceased descendant" means a child or a 14 descendant who either predeceased the distribution date or is deemed to have 15 predeceased the distribution date under section 2-702. 16 (2) "Distribution date," with respect to an interest, means the time when 17 the interest is to take effect in possession or enjoyment. The distribution date need not 18 occur at the beginning or end of a calendar day, but can occur at a time during the 19 course of a day. 20 (3) "Surviving ancestor," "surviving child," or "surviving descendant" 21 means an ancestor, a child, or a descendant who neither predeceased the distribution 22 date nor is deemed to have predeceased the distribution date under section 2-702. 23 (b) Representation; Per Capita at Each Generation. If an applicable statute or 24 a governing instrument calls for property to be distributed "by representation" or "per capita
    • 101 1 at each generation," the property is divided into as many equal shares as there are (i) 2 surviving descendants in the generation nearest to the designated ancestor which contains one 3 or more surviving descendants (ii) and deceased descendants in the same generation who left 4 surviving descendants, if any. Each surviving descendant in the nearest generation is 5 allocated one share. The remaining shares, if any, are combined and then divided in the same 6 manner among the surviving descendants of the deceased descendants as if the surviving 7 descendants who were allocated a share and their surviving descendants had predeceased the 8 distribution date. 9 (c) Per Stirpes. If a governing instrument calls for property to be distributed "per 10 stripes," the property is divided into as many equal shares as there are (i) surviving children 11 of the designated ancestor and (ii) deceased children who left surviving descendants. Each 12 surviving child, if any, is allocated one share. The share of each deceased child with 13 surviving descendants is divided in the same manner, with subdivision repeating at each 14 succeeding generation until the property is fully allocated among surviving descendants. 15 (d) Deceased Descendant With No Surviving Descendant Disregarded. For 16 the purposes of subsections (b) and (c), an individual who is deceased and left no surviving 17 descendant is disregarded, and an individual who leaves a surviving ancestor who is a 18 descendant of the designated ancestor is not entitled to a share. 19 Section 2-710. Worthier-Title Doctrine Abolished. 20 The doctrine of worthier title is abolished as a rule of law and as a rule of 21 construction. Language in a governing instrument describing the beneficiaries of a 22 disposition as the transferor's "heirs," "heirs at law," "next of kin," "distributees," "relatives,"
    • 102 1 or "family," or language of similar import, does not create or presumptively create a 2 reversionary interest in the transferor. 3 § 2-711. Interests in "Heirs" and Like. 4 If an applicable statute or a governing instrument calls for a present or future 5 distribution to or creates a present or future interest in a designated individual's "heirs," "heirs 6 at law," "next of kin," "relatives," or "family," or language of similar import, the property 7 passes to those persons, including the state, and in such shares as would succeed to the 8 designated individual's intestate estate under the intestate succession law of the designated 9 individual's domicile if the designated individual died when the disposition is to take effect in 10 possession or enjoyment. If the designated individual's surviving spouse is living but is 11 remarried at the time the disposition is to take effect in possession or enjoyment, the 12 surviving spouse is not an heir of the designated individual. 13 PART 8 14 GENERAL PROVISIONS CONCERNING PROBATE AND NONPROBATE 15 TRANSFERS 16 §2-801. Reserved. 17 § 2-802. Effect of Divorce, Annulment, and Decree of Separation. 18 (a) An individual who is divorced from the decedent or whose marriage to the 19 decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent 20 marriage, the individual is married to the decedent at the time of death. A decree of 21 separation that does not terminate the status of husband and wife is not a divorce for purposes 22 of this section. 23 (b) For purposes of Parts 1, 2, 3, and 4 of this Article, and of Section 3-203, a 24 surviving spouse does not include:
    • 103 1 (1) an individual who obtains or consents to a final decree or judgment of 2 divorce from the decedent or an annulment of their marriage, which decree or 3 judgment is not recognized as valid in the Virgin Islands , unless subsequently they 4 participate in a marriage ceremony purporting to marry each to the other or live 5 together as husband and wife; 6 (2) an individual who, following an invalid decree or judgment of divorce 7 or annulment obtained by the decedent, participates in a marriage ceremony with a 8 third individual; or 9 (3) an individual who was a party to a valid proceeding concluded by an 10 order purporting to terminate all marital property rights. 11 §2-803. Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life 12 Insurance, and Beneficiary Designations. 13 (a) Definitions. In this section: 14 (1) "Disposition or appointment of property" includes a transfer of 15 an item of property or any other benefit to a beneficiary designated in a 16 governing instrument. 17 (2) "Governing instrument" means a governing instrument 18 executed by the decedent. 19 (3) "Revocable," with respect to a disposition, appointment, 20 provision, or nomination, means one under which the decedent, at the time of 21 or immediately before death, was alone empowered, by law or under the 22 governing instrument, to cancel the designation, in favor of the killer, whether 23 or not the decedent was then empowered to designate himself in place of his 24 killer and whether or not the decedent then had capacity to exercise the power.
    • 104 1 (b) Forfeiture of Statutory Benefits. An individual who feloniously and 2 intentionally kills the decedent forfeits all benefits under this Article with respect to the 3 decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's 4 share, a homestead allowance, exempt property, and a family allowance. If the decedent died 5 intestate, the decedent's intestate estate passes as if the killer disclaimed his intestate share. 6 (c) Revocation of Benefits Under Governing Instruments. The felonious and 7 intentional killing of the decedent: 8 (1) revokes any revocable (i) disposition or appointment of property made 9 by the decedent to the killer in a governing instrument, (ii) provision in a governing 10 instrument conferring a general or nongeneral power of appointment on the killer, and 11 (iii) nomination of the killer in a governing instrument, nominating or appointing the 12 killer to serve in any fiduciary or representative capacity, including a personal 13 representative, executor, trustee, or agent; and 14 (2) severs the interests of the decedent and killer in property held by them 15 at the time of the killing as joint tenants with the right of survivorship transforming 16 the interests of the decedent and killer into equal tenancies in common. 17 (d) Effect of Severance. A severance under subsection (c) (2) does not affect any 18 third-party interest in property acquired for value and in good faith reliance on an apparent 19 title by survivorship in the killer unless a writing declaring the severance has been noted, 20 registered, filed, or recorded in records appropriate to the kind and location of the property 21 which are relied upon, in the ordinary course of transactions involving such property, as 22 evidence of ownership.
    • 105 1 (e) Effect of Revocation. Provisions of a governing instrument are given effect 2 as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked 3 nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. 4 (f) Wrongful Acquisition of Property. A wrongful acquisition of property or 5 interest by a killer not covered by this section must be treated in accordance with the 6 principle that a killer cannot profit from his wrong. 7 (g) Felonious and Intentional Killing; How Determined. After all right to 8 appeal has been exhausted, a judgment of conviction establishing criminal accountability for 9 the felonious and intentional killing of the decedent conclusively establishes the convicted 10 individual as the decedent's killer for purposes of this section. In the absence of a conviction, 11 the court, upon the petition of an interested person, must determine whether, under the 12 preponderance of evidence standard, the individual would be found criminally accountable 13 for the felonious and intentional killing of the decedent. If the court determines that, under 14 that standard, the individual would be found criminally accountable for the felonious and 15 intentional killing of the decedent, the determination conclusively establishes that individual 16 as the decedent's killer for purposes of this section. 17 (h) Protection of Payors and Other Third Parties. 18 (1) A payor or other third party is not liable for having made a payment or 19 transferred an item of property or any other benefit to a beneficiary designated in a 20 governing instrument affected by an intentional and felonious killing, or for having 21 taken any other action in good faith reliance on the validity of the governing 22 instrument, upon request and satisfactory proof of the decedent's death, before the 23 payor or other third party received written notice of a claimed forfeiture or revocation 24 under this section. A payor or other third party is liable for a payment made or other
    • 106 1 action taken after the payor or other third party received written notice of a claimed 2 forfeiture or revocation under this section. 3 (2) Written notice of a claimed forfeiture or revocation under paragraph 4 (1) must be mailed to the payor's or other third party's main office or home by 5 registered or certified mail, return receipt requested, or served upon the payor or other 6 third party in the same manner as a summons in a civil action. Upon receipt of 7 written notice of a claimed forfeiture or revocation under this section, a payor or other 8 third party may pay any amount owed or transfer or deposit any item of property held 9 by it to or with the court having jurisdiction of the probate proceedings relating to the 10 decedent's estate, or if no proceedings have been commenced, to or with the court 11 having jurisdiction of probate proceedings relating to decedents' estates located in the 12 county of the decedent's residence. The court shall hold the funds or item of property 13 and, upon its determination under this section, shall order disbursement in accordance 14 with the determination. Payments, transfers, or deposits made to or with the court 15 discharge the payor or other third party from all claims for the value of amounts paid 16 to or items of property transferred to or deposited with the court. 17 (i) Protection of Bona Fide Purchasers; Personal Liability of Recipient. 18 (1) A person who purchases property for value and without notice, or who 19 receives a payment or other item of property in partial or full satisfaction of a legally 20 enforceable obligation, is neither obligated under this section to return the payment, 21 item of property, or benefit nor is liable under this section for the amount of the 22 payment or the value of the item of property or benefit. But a person who, not for 23 value, receives a payment, item of property, or any other benefit to which the person 24 is not entitled under this section is obligated to return the payment, item of property,
    • 107 1 or benefit, or is personally liable for the amount of the payment or the value of the 2 item of property or benefit, to the person who is entitled to it under this section. 3 (2) If this section or any part of this section is preempted by federal law 4 with respect to a payment, an item of property, or any other benefit covered by this 5 section, a person who, not for value, receives the payment, item of property, or any 6 other benefit to which the person is not entitled under this section is obligated to 7 return the payment, item of property, or benefit, or is personally liable for the amount 8 of the payment or the value of the item of property or benefit, to the person who 9 would have been entitled to it were this section or part of this section not preempted. 10 §2-804. Revocation of Probate and Nonprobate Transfers by Divorce; No Revocation by 11 other Changes of Circumstances. 12 (a) Definitions. In this section: 13 (1) "Disposition or appointment of property" includes a transfer of an item 14 of property or any other benefit to a beneficiary designated in a governing instrument. 15 (2) "Divorce or annulment" means any divorce or annulment, or any 16 dissolution or declaration of invalidity of a marriage which would exclude the spouse 17 as a surviving spouse within the meaning of section 2-802. A decree of separation 18 that does not terminate the status of husband and wife is not a divorce for purposes of 19 this section. 20 (3) "Divorced individual" includes an individual whose marriage has been 21 annulled. 22 (4) "Governing instrument" means a governing instrument executed by the 23 divorced individual before the divorce or annulment of the individual’s marriage to 24 the individual’s former spouse.
    • 108 1 (5) "Relative of the divorced individual's former spouse" means an 2 individual who is related to the divorced individual's former spouse by blood, 3 adoption, or affinity and who, after the divorce or annulment, is not related to the 4 divorced individual by blood, adoption, or affinity. 5 (6) "Revocable," with respect to a disposition, appointment, provision, or 6 nomination, means one under which the divorced individual, at the time of the 7 divorce or annulment, was alone empowered, by law or under the governing 8 instrument, to cancel the designation in favor of the individual’s former spouse or 9 former spouse's relative, whether or not the divorced individual was then empowered 10 to designate himself in place of his former spouse or in place of his former spouse's 11 relative and whether or not the divorced individual then had the capacity to exercise 12 the power. 13 (b) Revocation Upon Divorce. Except as provided by the express terms of a 14 governing instrument, a court order, or a contract relating to the division of the marital estate 15 made between the divorced individuals before or after the marriage, divorce, or annulment, 16 the divorce or annulment of a marriage: 17 (1) revokes any revocable (i) disposition or appointment of property made 18 by a divorced individual to his former spouse in a governing instrument and any 19 disposition or appointment created by law or in a governing instrument to a relative of 20 the divorced individual's former spouse, (ii) provision in a governing instrument 21 conferring a general or nongeneral power of appointment on the divorced individual's 22 former spouse or on a relative of the divorced individual's former spouse, and (iii) 23 nomination in a governing instrument, nominating a divorced individual's former 24 spouse or a relative of the divorced individual's former spouse to serve in any
    • 109 1 fiduciary or representative capacity, including a personal representative, executor, 2 trustee, conservator, agent, or guardian; and 3 (2) severs the interests of the former spouses in property held by them at 4 the time of the divorce or annulment as joint tenants with the right of survivorship 5 transforming the interests of the former spouses into equal tenancies in common. 6 (c) Effect of Severance. A severance under subsection (b) (2) does not affect 7 any third-party interest in property acquired for value and in good faith reliance on an 8 apparent title by survivorship in the survivor of the former spouses unless a writing declaring 9 the severance has been noted, registered, filed, or recorded in records appropriate to the kind 10 and location of the property which are relied upon, in the ordinary course of transactions 11 involving such property, as evidence of ownership. 12 (d) Effect of Revocation. Provisions of a governing instrument are given effect 13 as if the former spouse and relatives of the former spouse disclaimed all provisions revoked 14 by this section or, in the case of a revoked nomination in a fiduciary or representative 15 capacity, as if the former spouse and relatives of the former spouse died immediately before 16 the divorce or annulment. 17 (e) Revival if Divorce Nullified. Provisions revoked solely by this section are 18 revived by the divorced individual's remarriage to the former spouse or by a nullification of 19 the divorce or annulment. 20 (f) No Revocation for Other Change of Circumstances. No change of 21 circumstances other than as described in this section and in section 2-803 effects a 22 revocation. 23 (g) Protection of Payors and Other Third Parties.
    • 110 1 (1) A payor or other third party is not liable for having made a payment or 2 transferred an item of property or any other benefit to a beneficiary designated in a 3 governing instrument affected by a divorce, annulment, or remarriage, or for having 4 taken any other action in good faith reliance on the validity of the governing 5 instrument, before the payor or other third party received written notice of the 6 divorce, annulment, or remarriage. A payor or other third party is liable for a payment 7 made or other action taken after the payor or other third party received written notice 8 of a claimed forfeiture or revocation under this section. 9 (2) Written notice of the divorce, annulment, or remarriage under 10 subsection (g)(2) must be mailed to the payor's or other third party's main office or 11 home by registered or certified mail, return receipt requested, or served upon the 12 payor or other third party in the same manner as a summons in a civil action. Upon 13 receipt of written notice of the divorce, annulment, or remarriage, a payor or other 14 third party may pay any amount owed or transfer or deposit any item of property held 15 by it to or with the court having jurisdiction of the probate proceedings relating to the 16 decedent's estate or, if no proceedings have been commenced, to or with the court 17 having jurisdiction of probate proceedings relating to decedents' estates located in the 18 county of the decedent's residence. The court shall hold the funds or item of property 19 and, upon its determination under this section, shall order disbursement or transfer in 20 accordance with the determination. Payments, transfers, or deposits made to or with 21 the court discharge the payor or other third party from all claims for the value of 22 amounts paid to or items of property transferred to or deposited with the court. 23 (h) Protection of Bona Fide Purchasers; Personal Liability of Recipient.
    • 111 1 (1) A person who purchases property from a former spouse, relative of a 2 former spouse, or any other person for value and without notice, or who receives from 3 a former spouse, relative of a former spouse, or any other person a payment or other 4 item of property in partial or full satisfaction of a legally enforceable obligation, is 5 neither obligated under this section to return the payment, item of property, or benefit 6 nor is liable under this section for the amount of the payment or the value of the item 7 of property or benefit. But a former spouse, relative of a former spouse, or other 8 person who, not for value, received a payment, item of property, or any other benefit 9 to which that person is not entitled under this section is obligated to return the 10 payment, item of property, or benefit, or is personally liable for the amount of the 11 payment or the value of the item of property or benefit, to the person who is entitled 12 to it under this section. 13 (2) If this section or any part of this section is preempted by federal law 14 with respect to a payment, an item of property, or any other benefit covered by this 15 section, a former spouse, relative of the former spouse, or any other person who, not 16 for value, received a payment, item of property, or any other benefit to which that 17 person is not entitled under this section is obligated to return that payment, item of 18 property, or benefit, or is personally liable for the amount of the payment or the value 19 of the item of property or benefit, to the person who would have been entitled to it 20 were this section or part of this section not preempted. 21 §2-805. REFORMATION TO CORRECT MISTAKES. The court may reform the 22 terms of a governing instrument, even if unambiguous, to conform the terms to the 23 transferor’s intention if it is proved by clear and convincing evidence that the
    • 112 1 transferor’s intent and the terms of the governing instrument were affected by a 2 mistake of fact or law, whether in expression or inducement. 3 PART 9 4 STATUTORY RULE AGAINST PERPETUITIES; HONORARY TRUSTS 5 §2-901. Statutory Rule Against Perpetuities. 6 (a) Validity of Nonvested Property Interest. A nonvested property interest is 7 invalid unless: 8 (1) when the interest is created, it is certain to vest or terminate no later 9 than 21 years after the death of an individual then alive; or 10 (2) the interest either vests or terminates within 90 years after its creation. 11 (b) Validity of General Power of Appointment Subject to a Condition 12 Precedent. A general power of appointment not presently exercisable because of a condition 13 precedent is invalid unless: 14 (1) when the power is created, the condition precedent is certain to be 15 satisfied or becomes impossible to satisfy no later than 21 years after the death of an 16 individual then alive; or 17 (2) the condition precedent either is satisfied or becomes impossible to 18 satisfy within 90 years after its creation. 19 (c) Validity of Nongeneral or Testamentary Power of Appointment. A 20 nongeneral power of appointment or a general testamentary power of appointment is invalid 21 unless:
    • 113 1 (1) when the power is created, it is certain to be irrevocably exercised or 2 otherwise to terminate no later than 21 years after the death of an individual then 3 alive; or 4 (2) the power is irrevocably exercised or otherwise terminates within 90 5 years after its creation. 6 (d) Possibility of Post-death Child Disregarded. In determining whether a 7 nonvested property interest or a power of appointment is valid under subsection (a) (1), (b) 8 (1), or (c) (1), the possibility that a child will be born to an individual after the individual's 9 death is disregarded. 10 (e) Effect of Certain "Later-of" Type Language. If, in measuring a period 11 from the creation of a trust or other property arrangement, language in a governing 12 instrument (i) seeks to disallow the vesting or termination of any interest or trust beyond, (ii) 13 seeks to postpone the vesting or termination of any interest or trust until, or (iii) seeks to 14 operate in effect in any similar fashion upon, the later of (A) the expiration of a period of 15 time not exceeding 21 years after the death of the survivor of specified lives in being at the 16 creation of the trust or other property arrangement or (B) the expiration of a period of time 17 that exceeds or might exceed 21 years after the death of the survivor of lives in being at the 18 creation of the trust or other property arrangement, that language is inoperative to the extent 19 it produces a period of time that exceeds 21 years after the death of the survivor of the 20 specified lives. 21 22
    • 114 1 §2-902. When Nonvested Property Interest or Power of Appointment Created. 2 (a) Except as provided in subsections (b) and (c) and in section 2-905 (a), the time 3 of creation of a nonvested property interest or a power of appointment is determined under 4 general principles of property law. 5 (b) For purposes of subpart 1 of this part, if there is a person who alone can 6 exercise a power by a governing instrument to become the unqualified beneficial owner of (i) 7 a nonvested property interest or (ii) a property interest subject to a power of appointment 8 described in section 2-901 (b) or (c), the nonvested property interest or power of appointment 9 is created when the power to become the unqualified beneficial owner terminates. 10 (c) For purposes of Subpart 1 of this Part, a nonvested property interest or a 11 power of appointment arising from a transfer of property to a previously funded trust or other 12 existing property arrangement is created when the nonvested property interest or power of 13 appointment in the original contribution was created. 14 § 2-903. Reformation. 15 Upon the petition of an interested person, a court shall reform a disposition in the 16 manner that most closely approximates the transferor's manifested plan of distribution and is 17 within the 90 years allowed by Section 2-901(a)(2), 2-901(b)(2), or 2-901(c)(2) if: 18 (1) a nonvested property interest or a power of appointment becomes 19 invalid under section 2-901; 20 (2) a class gift is not but might become invalid under Section 2-901 and 21 the time has arrived when the share of any class member is to take effect in 22 possession or enjoyment; or 23 (3) a nonvested property interest that is not validated by Section 2-901 (a) 24 (1) can vest but not within 90 years after its creation.
    • 115 1 §2-904. Exclusions from Statutory Rule Against Perpetuities. 2 Section 2-901, the statutory rule against perpetuities, does not apply to: 3 (1) a nonvested property interest or a power of appointment arising out of a 4 nondonative transfer, except a nonvested property interest or a power of appointment arising 5 out of (i) a premarital or post marital agreement, (ii) a separation or divorce settlement, (iii) a 6 spouse's election, (iv) a similar arrangement arising out of a prospective, existing, or previous 7 marital relationship between the parties, (v) a contract to make or not to revoke a will or 8 trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in 9 satisfaction of a duty of support, or (viii) a reciprocal transfer; 10 (2) a fiduciary's power relating to the administration or management of assets, 11 including the power of a fiduciary to sell, lease, or mortgage property, and the power of a 12 fiduciary to determine principal and income; 13 (3) a power to appoint a fiduciary; 14 (4) a discretionary power of a trustee to distribute principal before termination of 15 a trust to a beneficiary having an indefeasibly vested interest in the income and principal; 16 (5) a nonvested property interest held by a charity, government, or governmental 17 agency or subdivision, if the nonvested property interest is preceded by an interest held by 18 another charity, government, or governmental agency or subdivision; 19 (6) a nonvested property interest in or a power of appointment with respect to a 20 trust or other property arrangement forming part of a pension, profit sharing, stock bonus, 21 health, disability, death benefit, income deferral, or other current or deferred benefit plan for 22 one or more employees, independent contractors, or their beneficiaries or spouses, to which 23 contributions are made for the purpose of distributing to or for the benefit of the participants 24 or their beneficiaries or spouses the property, income, or principal in the trust or other
    • 116 1 property arrangement, except a nonvested property interest or a power of appointment that is 2 created by an election of a participant or a beneficiary or spouse; or 3 (7) a property interest, power of appointment, or arrangement that was not subject 4 to the common-law rule against perpetuities or is excluded by another statute of the Virgin 5 Islands. 6 §2-905. Prospective Application. 7 (a) Except as extended by subsection (b), subpart 1 of this part applies to a 8 nonvested property interest or a power of appointment that is created on or after the effective 9 date of Subpart 1 of this Part. For purposes of this section, a nonvested property interest or a 10 power of appointment created by the exercise of a power of appointment is created when the 11 power is irrevocably exercised or when a revocable exercise becomes irrevocable. 12 (b) If a nonvested property interest or a power of appointment was created before 13 the effective date of Subpart 1 of this Part and is determined in a judicial proceeding, 14 commenced on or after the effective date of subpart 1 of this part, to violate the Virgin 15 Island’s rule against perpetuities as that rule existed before the effective date of subpart 1 of 16 this part, a court upon the petition of an interested person may reform the disposition in the 17 manner that most closely approximates the transferor's manifested plan of distribution and is 18 within the limits of the rule against perpetuities applicable when the nonvested property 19 interest or power of appointment was created. 20 § 2-906. Supersession 21 Subpart 1 of this part supersedes the rule of the common law known as the Rule 22 Against Perpetuities. 23 24
    • 117 1 PART 10 2 UNIFORM INTERNATIONAL WILLS ACT 3 INTERNATIONAL WILL; INFORMATION REGISTRATION 4 § 2-1001. Definitions. 5 In this part: 6 (1) "International will" means a will executed in conformity with sections 2-1002 7 through 2-1005. 8 (2) "Authorized person" and "person authorized to act in connection with 9 international wills" mean a person who by section 2-1009, or by the laws of the United States 10 including members of the diplomatic and consular service of the United States designated by 11 Foreign Service Regulations, is empowered to supervise the execution of international wills. 12 §2-1002. International Will; Validity. 13 (a) A will is valid as regards form, irrespective particularly of the place where it 14 is made, of the location of the assets and of the nationality, domicile, or residence of the 15 testator, if it is made in the form of an international will complying with the requirements of 16 this Part. 17 (b) The invalidity of the will as an international will does not affect its formal 18 validity as a will of another kind. 19 (c) This Part does not apply to the form of testamentary dispositions made by two 20 or more persons in one instrument. 21 §2-1003. International Will; Requirements. 22 (a) The will must be made in writing. It need not be written by the testator 23 himself. It may be written in any language, by hand or by any other means.
    • 118 1 (b) The testator shall declare in the presence of two witnesses and of a person 2 authorized to act in connection with international wills that the document is his will and that 3 he knows the contents thereof. The testator need not inform the witnesses, or the authorized 4 person, of the contents of the will. 5 (c) In the presence of the witnesses, and of the authorized person, the testator 6 shall sign the will or, if he has previously signed it, shall acknowledge his signature. 7 (d) When the testator is unable to sign, the absence of the testator’s signature does 8 not affect the validity of the international will if the testator indicates the reason for the 9 testator’s inability to sign and the authorized person makes note thereof on the will. In these 10 cases, it is permissible for any other person present, including the authorized person or one of 11 the witnesses, at the direction of the testator to sign the testator's name for the testator, if the 12 authorized person makes note of this also on the will, but it is not required that any person 13 sign the testator's name for the testator. 14 (e) The witnesses and the authorized person shall there and then attest the will by 15 signing in the presence of the testator. 16 §2-1004. International Will; Other Points of Form. 17 (a) The signatures must be placed at the end of the will. If the will consists of 18 several sheets, each sheet must be signed by the testator or, if the testator is unable to sign, by 19 the person signing on the testator’s behalf or, if there is no such person, by the authorized 20 person. In addition, each sheet must be numbered. 21 (b) The date of the will is the date of its signature by the authorized person. That 22 date must be noted at the end of the will by the authorized person. 23 (c) The authorized person shall ask the testator whether the testator wishes to 24 make a declaration concerning the safekeeping of his will. If so and at the express request of
    • 119 1 the testator, the place where the testator intends to have his will kept must be mentioned in 2 the certificate provided for in section 2-1005 3 (d) A will executed in compliance with section 2-1003 is not invalid merely 4 because it does not comply with this section. 5 §2-1005. International Will; Certificate. 6 The authorized person shall attach to the will a certificate to be signed by that person 7 establishing that the requirements of this Part for valid execution of an international will have 8 been complied with. The authorized person shall keep a copy of the certificate and deliver 9 another to the testator. The certificate must be substantially in the following form: 10 CERTIFICATE 11 12 1. I, ____________________ (name, address and capacity), a person authorized 13 to act in connection with international wills 14 2. Certify that on __________ (date) at __________ (place) 15 3. (testator) ___________ (name, address, date and place of birth) in my 16 presence and that of the witnesses 17 4. (a) ____________________ (name, address, date and place of birth) 18 (b) ____________________ (name, address, date and place of birth) has 19 declared that the attached document is his will and that he knows the 20 contents thereof. 21 5. I furthermore certify that: 22 6. (a) in my presence and in that of the witnesses
    • 120 1 (1) the testator has signed the will or has acknowledged his 2 signature previously affixed. 3 4 (2) was unable to sign his will for the following reason 5 ____________________, I have mentioned this declaration on the will * 6 and the signature has been affixed by ____________________ (name 7 and address) 8 7. (b) the witnesses and I have signed the will; * 9 8. (c) each page of the will has been signed by ____________________ and 10 numbered; 11 9. (d) I have satisfied myself as to the identity of the testator and of the 12 witnesses as designated above; 13 10. (e) the witnesses met the conditions requisite to act as such according to 14 the law under which I am acting; * 15 11. (f) the testator has requested me to include the following statement 16 concerning the safekeeping of his will: 17 12. PLACE OF EXECUTION 18 13. DATE 19 14. SIGNATURE and, if necessary, SEAL * 20 to be completed if appropriate 21 §2-1006. International Will; Effect of Certificate. 22 In the absence of evidence to the contrary, the certificate of the authorized person is 23 conclusive of the formal validity of the instrument as a will under this Part. The absence or 24 irregularity of a certificate does not affect the formal validity of a will under this Part.
    • 121 1 §2-1007. International Will; Revocation. 2 The international will is subject to the ordinary rules of revocation of wills. 3 § 2-1008. Source and Construction. 4 Sections 2-1001 through 2-1007 derive from Annex to Convention of October 26, 5 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and 6 applying this Part, regard must be had to its international origin and to the need for 7 uniformity in its interpretation. 8 §2-1009. Persons Authorized to Act in Relation to International Will; Eligibility; 9 Recognition by Authorizing Agency. 10 Individuals who have been admitted to practice law before the courts of the Virgin 11 islands and who are in good standing as active law practitioners in the Virgin Islands, are 12 declared to be authorized persons in relation to international wills. 13 § 2-1010. International Will Information Registration. 14 The Office of the Lieutenant Governor shall establish a registry system by which 15 authorized persons may register in a central information center, information regarding the 16 execution of international wills, keeping that information in strictest confidence until the 17 death of the maker and then making it available to any person desiring information about any 18 will who presents a death certificate or other satisfactory evidence of the testator's death to 19 the center. Information that may be received, preserved in confidence until death, and 20 reported as indicated is limited to the name, social security or any other individual 21 identifying number established by law, address, and date and place of birth of the testator, 22 and the intended place of deposit or safekeeping of the instrument pending the death of the 23 maker. The Lieutenant Governor, at the request of the authorized person, may cause the 24 information it receives about execution of any international will to be transmitted to the
    • 122 1 registry system of another jurisdiction as identified by the testator, if that other system 2 adheres to rules protecting the confidentiality of the information similar to those established 3 in the Virgin Islands. 4 PART 11 5 UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT 6 § 2-1101. This part may be cited as the Virgin Islands Uniform Disclaimer of Property 7 Interests Act. 8 § 2-1102. Definitions. 9 In this part: 10 (1) “Disclaimant” means the person to whom a disclaimed interest or power 11 would have passed had the disclaimer not been made. 12 (2) “Disclaimed interest” means the interest that would have passed to the 13 disclaimant had the disclaimer not been made. 14 (3) “Disclaimer” means the refusal to accept an interest in or power over 15 property. 16 (4) “Fiduciary” means a personal representative, trustee, agent acting under a 17 power of attorney, or other person authorized to act as a fiduciary with respect to the property 18 of another person. 19 (5) “Jointly held property” means property held in the name of two or more 20 persons under an arrangement in which all holders have concurrent interests and under which 21 the last surviving holder is entitled to the whole of the property. 22 (6) “Person” means an individual, corporation, business trust, estate, trust, 23 partnership, limited liability company, association, joint venture, government; governmental 24 subdivision, agency, or instrumentality; public corporation or any legal or commercial entity.
    • 123 1 (7) “State” means a State of the United States, the District of Columbia, Puerto 2 Rico, the Virgin Islands, or any territory or insular possession subject to the jurisdiction of 3 the United Sates. The term includes an Indian tribe or band, or Alaskan native village, 4 recognized by federal law or formally acknowledged by a State. 5 (8) “Trust” means: 6 (A) an express trust, charitable or noncharitable, with additions thereto, 7 whenever and however created; and 8 (B) a trust created pursuant to a statute, judgment, or decree which 9 requires the trust to be administered in the manner of an express trust. 10 §2-1103. Scope. 11 This part applies to disclaimers of any interest in or power over property, whenever 12 created. 13 § 2-1104. Part Supplemented By Other Law. 14 (a) Unless displaced by a provision of this Part, the principles of law and equity 15 supplement this Part. 16 (b) This part does not limit any right of a person to waive, release, disclaim, or 17 renounce an interest in or power over property under a law other than this Part. 18 §2-1105. Power To Disclaim; General Requirements; When Irrevocable. 19 (a) A person may disclaim, in whole or part, any interest in or power over 20 property, including a power of appointment. A person may disclaim the interest or power 21 even if its creator imposed a spendthrift provision or similar restriction on transfer or a 22 restriction or limitation on the right to disclaim. 23 (b) Except to the extent a fiduciary's right to disclaim is expressly restricted or 24 limited by another statute of the Virgin Islands or by the instrument creating the fiduciary
    • 124 1 relationship, a fiduciary may disclaim, in whole or part, any interest in or power over 2 property, including a power of appointment, whether acting in a personal or representative 3 capacity. A fiduciary may disclaim the interest or power even if its creator imposed a 4 spendthrift provision or similar restriction on transfer or a restriction or limitation on the right 5 to disclaim, or an instrument other than the instrument that created the fiduciary relationship 6 imposed a restriction or limitation on the right to disclaim. 7 (c) To be effective, a disclaimer must be in a writing or other record, declare the 8 disclaimer, describe the interest or power disclaimed, be signed by the person making the 9 disclaimer, and be delivered or filed in the manner provided in section 2-1112. In this 10 subsection: 11 (1) “record” means information that is inscribed on a tangible medium or 12 that is stored in an electronic or other medium and is retrievable in perceivable form; 13 (2) “signed” means, with present intent to authenticate or adopt a record, 14 to; 15 (A) execute or adopt a tangible symbol; or 16 (B) attach to or logically associate with the record an electronic 17 sound, symbol, or process. 18 (d) A partial disclaimer may be expressed as a fraction, percentage, monetary 19 amount, term of years, limitation of a power, or any other interest or estate in the property. 20 (e) A disclaimer becomes irrevocable when it is delivered or filed pursuant to 21 section 2-1112 or when it becomes effective as provided in sections 2-1106 through 2-1111, 22 whichever occurs later. 23 (f) A disclaimer made under this part is not a transfer, assignment, or release. 24 §2-1106. Disclaimer Of Interest In Property.
    • 125 1 (a) In this section: 2 (1) “Future interest” means an interest that takes effect in possession or 3 enjoyment, if at all, later than the time of its creation. 4 (2) “Time of distribution” means the time when a disclaimed interest 5 would have taken effect in possession or enjoyment. 6 (b) Except for a disclaimer governed by section 2-1107 or 2-1108, the following 7 rules apply to a disclaimer of an interest in property: 8 (1) The disclaimer takes effect as of the time the instrument creating the 9 interest becomes irrevocable, or, if the interest arose under the law of intestate 10 succession, as of the time of the intestate's death. 11 (2) The disclaimed interest passes according to any provision in the 12 instrument creating the interest providing for the disposition of the interest, should it 13 be disclaimed, or of disclaimed interests in general. 14 (3) If the instrument does not contain a provision described in paragraph 15 (2), the following rules apply: 16 (A) If the disclaimant is not an individual, the disclaimed interest 17 passes as if the disclaimant did not exist. 18 (B) If the disclaimant is an individual, except as otherwise 19 provided in subparagraphs (C) and (D), the disclaimed interest passes as if the 20 disclaimant had died immediately before the time of distribution. 21 (C) If by law or under the instrument, the descendants of the 22 disclaimant would share in the disclaimed interest by any method of 23 representation had the disclaimant died before the time of distribution, the
    • 126 1 disclaimed interest passes only to the descendants of the disclaimant who 2 survive the time of distribution. 3 (D) If the disclaimed interest would pass to the disclaimant's estate 4 had the disclaimant died before the time of distribution, the disclaimed interest 5 instead passes by representation to the descendants of the disclaimant who 6 survive the time of distribution. If no descendant of the disclaimant survives 7 the time of distribution, the disclaimed interest passes to those persons, 8 including the state but excluding the disclaimant, and in such shares as would 9 succeed to the transferor's intestate estate under the intestate succession law of 10 the transferor's domicile had the transferor died at the time of distribution. 11 However, if the transferor's surviving spouse is living but is remarried at the 12 time of distribution, the transferor is deemed to have died unmarried at the 13 time of distribution. 14 (4) Upon the disclaimer of a preceding interest, a future interest held by a 15 person than the disclaimant takes effect as if the disclaimant had died or ceased to 16 exist immediately before the time of distribution, but a future interest held by the 17 disclaimant is not accelerated in possession or enjoyment. 18 § 2-1107. Disclaimer Of Rights Of Survivorship In Jointly Held Property. 19 (a) Upon the death of a holder of jointly held property, a surviving holder may 20 disclaim, in whole or part, the greater of: 21 (1) a fractional share of the property determined by dividing the number 22 one by the number of joint holders alive immediately before the death of the holder to 23 whose death the disclaimer relates; or 24 (2) all of the property except that part of the value of the entire interest
    • 127 1 attributable to the contribution furnished by the disclaimant. 2 (b) A disclaimer under subsection (a) takes effect as of the death of the holder of 3 jointly held property to whose death the disclaimer relates. 4 (c) An interest in jointly held property disclaimed by a surviving holder of the 5 property passes as if the disclaimant predeceased the holder to whose death the disclaimer 6 relates. 7 Section 2-1108. Disclaimer Of Interest By Trustee. 8 If a trustee disclaims an interest in property that otherwise would have become trust 9 property, the interest does not become trust property. 10 § 2-1109. Disclaimer Of Power Of Appointment Or Other Power Not Held In 11 Fiduciary Capacity. 12 If a holder disclaims a power of appointment or other power not held in a fiduciary 13 capacity, the following rules apply: 14 (1) If the holder has not exercised the power, the disclaimer takes effect as 15 of the time the instrument creating the power becomes irrevocable. 16 (2) If the holder has exercised the power and the disclaimer is of a power 17 other than a presently exercisable general power of appointment, the disclaimer takes 18 effect immediately after the last exercise of the power. 19 (3) The instrument creating the power is construed as if the power expired 20 when the disclaimer became effective. 21 §2-1110. Disclaimer By Appointee, Object, Or Taker In Of Exercise Of Power Of 22 Appointment. 23 (a) A disclaimer of an interest in property by an appointee of a power of 24 appointment takes effect as of the time the instrument by which the holder exercises the
    • 128 1 power becomes irrevocable. 2 (b) A disclaimer of an interest in property by an object or taker in default of an 3 exercise of a power of appointment takes effect as of the time the instrument creating the 4 power becomes irrevocable. 5 §2-1111. Disclaimer Of Power Held In Fiduciary Capacity. 6 (a) If a fiduciary disclaims a power held in a fiduciary capacity which has not 7 been exercised, the disclaimer takes effect as of the time the instrument creating the power 8 becomes irrevocable. 9 (b) If a fiduciary disclaims a power held in a fiduciary capacity which has been 10 exercised, the disclaimer takes effect immediately after the last exercise of the power. 11 (c) A disclaimer under this section is effective as to another fiduciary if the 12 disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, 13 or other person for whom the fiduciary is acting. 14 §2-1112. Delivery or Filing. 15 (a) In this section, “beneficiary designation” means an instrument, other than an 16 instrument creating a trust, naming the beneficiary of: 17 (1) an annuity or insurance policy; 18 (2) an account with a designation for payment on death; 19 (3) a security registered in beneficiary form; 20 (4) a pension, profit-sharing, retirement, or other employment-related 21 benefit plan; or 22 (5) any other nonprobate transfer at death. 23 (b) Subject to subsections (c) through (l), delivery of a disclaimer may be effected
    • 129 1 by personal delivery, first-class mail, or any other method likely to result in its receipt. 2 (c) In the case of an interest created under the law of intestate succession or an 3 interest created by will, other than an interest in a testamentary trust: 4 (1) a disclaimer must be delivered to the personal representative of the 5 decedent's estate; or 6 (2) if no personal representative is then serving, it must be filed with a 7 Court having jurisdiction to appoint the personal representative. 8 (d) In the case of an interest in a testamentary trust: 9 (1) a disclaimer must be delivered to trustee then serving, or if no trustee 10 is then serving, to the personal representative of the decedent's estate; or 11 (2) if no personal representative is serving, it must be filed with a Court 12 having jurisdiction to enforce the trust. 13 (e) In the case of an interest in an inter vivos trust: 14 (1) a disclaimer must be delivered to the trustee then serving; 15 (2) if no trustee is then serving, it must be filed with a Court having 16 jurisdiction to enforce the trust; or 17 (3) if the disclaimer is made before the time the instrument creating the 18 trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the 19 transferor of the interest. 20 (f) In the case of an interest created by a beneficiary designation made before the 21 time the designation becomes irrevocable, a disclaimer must be delivered to the person 22 making the beneficiary designation. 23 (g) In the case of an interest created by a beneficiary designation made after the 24 time the designation becomes irrevocable, a disclaimer must be delivered to the person
    • 130 1 obligated to distribute the interest. 2 (h) In the case of a disclaimer by a surviving holder of jointly held property, the 3 disclaimer must be delivered to the person to whom the disclaimed interest passes. 4 (i) In the case of a disclaimer by an object or taker in default of exercise of a 5 power of appointment at any time after the power was created: 6 (1) the disclaimer must be delivered to the holder of the power or to the 7 fiduciary acting under the instrument that created the power; or 8 (2) if no fiduciary is then serving, it must be filed with a Court having 9 authority to appoint the fiduciary. 10 (j) In the case of a disclaimer by an appointee of a nonfiduciary power of 11 appointment: 12 (1) the disclaimer must be delivered to the holder, the personal 13 representative of the holder's or to the fiduciary under the instrument that created the 14 power; or 15 (2) if no fiduciary is then serving, it must be filed with a Court having 16 authority to appoint the fiduciary. 17 (k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the 18 disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power 19 disclaimed were an interest in property. 20 (l) In the case of a disclaimer of a power by an agent, the disclaimer must be 21 delivered to the principal or the principal's representative. 22 §2-1113. When Disclaimer Barred or Limited. 23 (a) A disclaimer is barred by a written waiver of the right to disclaim.
    • 131 1 (b) A disclaimer of an interest in property is barred if any of the following events 2 occur before the disclaimer becomes effective: 3 (1) the disclaimant accepts the interest sought to be disclaimed; 4 (2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or 5 transfers the interest sought to be disclaimed or contracts to do so; or 6 (3) a judicial sale of the interest sought to be disclaimed occurs. 7 (c) A disclaimer, in whole or part, of the future exercise of a power held in a 8 fiduciary capacity is not barred by its previous exercise. 9 (d) A disclaimer, in whole or part, of the future exercise of a power not held in a 10 fiduciary capacity is not barred by its previous exercise unless the power is exercisable in 11 favor of the disclaimant. 12 (e) A disclaimer is barred or limited if so provided by law other than this part. 13 (f) A disclaimer of a power over property which is barred by this section is 14 ineffective. A disclaimer of an interest in property which is barred by this section takes effect 15 as a transfer of the interest disclaimed to the persons who would have taken the interest under 16 this Part had the disclaimer not been barred. 17 § 2-1114. Tax Qualified Disclaimer. 18 Notwithstanding any other provision of this Part, if as a result of a disclaimer or 19 transfer the disclaimed or transferred interest is treated pursuant to the provisions of Title 26 20 of the United States Code, or any successor statute thereto, and the regulations promulgated 21 that statute, as never having been transferred to the disclaimant, then the disclaimer or 22 transfer is effective as a disclaimer under this Part. 23 §2-1115. Recording Of Disclaimer. 24 If an instrument transferring an interest in or power over property subject to a
    • 132 1 disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer 2 may be so filed, recorded, or registered. Failure to file, record, or register the disclaimer does 3 not affect its validity as between the disclaimant and persons to whom the property interest or 4 power passes by reason of the disclaimer. 5 §2-1116. Application To Existing Relationships. 6 Except as otherwise provided in section 2-1113, an interest in or power over property 7 existing on the effective date of this Part as to which the time for delivering or filing a 8 disclaimer under law superseded by this Part has not expired may be disclaimed after the 9 effective date of this part. 10 §2-1117. Relation to Electronic Signatures in Global and National Commerce Act. 11 This part modifies, limits, and supersedes the federal Electronic Signatures in Global 12 and National Commerce Ac, 15 U.S.C. §7001, et seq., but does not modify, limit, or 13 supersede §101(c) of that act (15 U.S.C. §7001(c)) or authorize electronic delivery of any of 14 the notices described in section 103(b) of the act (15 U.S.C. §7003(b)). 15 §2-1118. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying 16 and construing this part, consideration must be given to the need to promote uniformity 17 of the law with respect to its subject matter among States that enact it. 18 §2-110 . SEVERABILITY CLAUSE. If any provision of this part or its application to any 19 person or circumstance is held invalid, the invalidity does not affect other provisions or 20 applications of this part which can be given effect without the invalid provision or 21 application, and to this end the provisions of this part are severable. 22 ARTICLE III 23 PROBATE OF WILLS AND ADMINISTRATION 24 PART 1
    • 133 1 GENERAL PROVISIONS 2 §3-101. Devolution of Estate at Death; Restrictions. 3 The power of a person to leave property by will, and the rights of creditors, devisees, 4 and heirs to the person’s property are subject to the restrictions and limitations contained in 5 this Code to facilitate the prompt settlement of estates. Upon the death of a person, the 6 person’s real and personal property devolves to the persons to whom it is devised by his last 7 will or to those indicated as substitutes for them in cases involving lapse, renunciation, or 8 other circumstances affecting the devolution of testate estate, or in the absence of 9 testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases 10 involving renunciation or other circumstances affecting devolution of intestate estates, 11 subject to homestead allowance, exempt property and family allowance, to rights of 12 creditors, elective share of the surviving spouse, and to administration. 13 §3-102. Necessity of Order of Probate For Will. 14 Except as provided in section 3-1201, to be effective to prove the transfer of any 15 property or to nominate an executor, a will must be declared to be valid by an order of 16 informal probate by the Registrar, or an adjudication of probate by the court. 17 It is to be noted, also, that devisees who are able to claim under one of the exceptions 18 to 19 §3-103. Necessity of Appointment For Administration. 20 Except as otherwise provided in Article IV, to acquire the powers and undertake the 21 duties and liabilities of a personal representative of a decedent, a person must be appointed 22 by order of the court or Registrar, qualify and be issued letters. Administration of an estate is 23 commenced by the issuance of letters. 24 §3-104. Claims Against Decedent; Necessity of Administration.
    • 134 1 No proceeding to enforce a claim against the estate of a decedent or his successors 2 may be revived or commenced before the appointment of a personal representative. After the 3 appointment and until distribution, all proceedings and actions to enforce a claim against the 4 estate are governed by the procedure prescribed by this Article. After distribution a creditor 5 whose claim has not been barred may recover from the distributees as provided in Section 6 3-1004 or from a former personal representative individually liable as provided in Section 7 3-1005. This section has no application to a proceeding by a secured creditor of the decedent 8 to enforce his right to his security except as to any deficiency judgment which might be 9 sought therein. 10 §3-105. Proceedings Affecting Devolution and Administration; Jurisdiction of Subject 11 Matter. 12 Persons interested in decedents' estates may apply to the Registrar for determination 13 in the informal proceedings provided in this Article, and may petition the court for orders in 14 formal proceedings within the Court's jurisdiction including but not limited to those 15 described in this Article. The Court has exclusive jurisdiction of formal proceedings to 16 determine how decedents' estates, subject to the laws of the Virgin Islands, are to be 17 administered, expended and distributed. The Court has concurrent jurisdiction of any other 18 action or proceeding concerning a succession or to which an estate, through a personal 19 representative, may be a party, including actions to determine title to property alleged to 20 belong to the estate, and of any action or proceeding in which property distributed by a 21 personal representative or its value is sought to be subjected to rights of creditors or 22 successors of the decedent. 23 § 3-106. Proceedings Within the Exclusive Jurisdiction of Court; Service; Jurisdiction 24 Over Persons.
    • 135 1 In proceedings within the exclusive jurisdiction of the Court where notice is required 2 by this Code or by rule, and in proceedings to construe probated wills or determine heirs 3 which concern estates that have not been and cannot now be open for administration, 4 interested persons may be bound by the orders of the Court in respect to property in or 5 subject to the laws of the Virgin Islands, by notice in conformity with section 1-401. An 6 order is binding as to all who are given notice of the proceeding though less than all 7 interested persons are notified. 8 §3-107. Scope of Proceedings; Proceedings Independent; Exception. 9 Unless supervised administration as described in Part 5 is involved, (1) each 10 proceeding before the Court or Registrar is independent of any other proceeding involving 11 the same estate; (2) petitions for formal orders of the Court may combine various requests for 12 relief in a single proceeding if the orders sought may be finally granted without delay. 13 Except as required for proceedings which are particularly described by other sections of this 14 Article, no petition is defective because it fails to embrace all matters which might then be 15 the subject of a final order (3) proceedings for probate of wills or adjudications of no will 16 may be combined with proceedings for appointment of personal representatives; and (4) a 17 proceeding for appointment of a personal representative is concluded by an order making or 18 declining the appointment. 19 §3-108. Probate, Testacy and Appointment Proceedings; Ultimate Time Limit. 20 (a) No informal probate or appointment proceeding or formal testacy or 21 appointment proceeding, other than a proceeding to probate a will previously probated at the 22 testator's domicile and appointment proceedings relating to an estate in which there has been 23 a prior appointment, may be commenced more than three years after the decedent's death, 24 except:
    • 136 1 (1) if a previous proceeding was dismissed because of doubt about the fact 2 of the decedent's death, appropriate probate, appointment, or testacy proceedings may 3 be maintained at any time thereafter upon a finding that the decedent's death occurred 4 before the initiation of the previous proceeding and the applicant or petitioner has not 5 delayed unduly in initiating the subsequent proceeding; 6 (2) appropriate probate, appointment, or testacy proceedings may be 7 maintained in relation to the estate of an absent, disappeared or missing person for 8 whose estate a conservator has been appointed, at any time within three years after 9 the conservator becomes able to establish the death of the protected person; 10 (3) a proceeding to contest an informally probated will and to secure 11 appointment of the person with legal priority for appointment in the event the contest 12 is successful, may be commenced within the later of twelve months from the informal 13 probate or three years from the decedent's death; 14 (4) an informal appointment or a formal testacy or appointment 15 proceeding may be commenced thereafter if no proceedings concerning the 16 succession or estate administration has occurred within the three year period after the 17 decedent's death, but the personal representative has no right to possess estate assets 18 as provided in section 3-709 beyond that necessary to confirm title thereto in the 19 successors to the estate and claims other than expenses of administration may not be 20 presented against the estate; and 21 (5) a formal testacy proceeding may be commenced at any time after three 22 years from the decedent's death for the purpose of establishing an instrument to direct 23 or control the ownership of property passing or distributable after the decedent's death 24 from one other than the decedent when the property is to be appointed by the terms of
    • 137 1 the decedent's will or is to pass or be distributed as a part of the decedent's estate or 2 its transfer is otherwise to be controlled by the terms of the decedent's will. 3 (b) These limitations do not apply to proceedings to construe probated wills or 4 determine heirs of an intestate. 5 (c) In cases under subsection (a)(1) or (2), the date on which a testacy or 6 appointment proceeding is properly commenced is deemed to be the date of the decedent's 7 death for purposes of other limitations provisions of this Code which relate to the date of 8 death. 9 §3-109. Statutes of Limitation on Decedent's Cause of Action. 10 No statute of limitation running on a cause of action belonging to a decedent which 11 had not been barred as of the date of his death, shall applies to bar a cause of action surviving 12 the decedent's death sooner than four months after death. A cause of action which, but for 13 this section, would have been barred less than four months after death, is barred after four 14 months unless tolled. 15 PART 2 16 VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; 17 DEMAND FOR NOTICE 18 §3-201. Venue for First and Subsequent Estate Proceedings; Location of Property. 19 (a) Venue for the first informal or formal testacy or appointment proceedings 20 after a decedent's death is: 21 (1) in the judicial division where the decedent had his domicile at the time 22 of his death; or 23 (2) if the decedent was not domiciled in the Virgin Islands in any judicial 24 division where property of the decedent was located at the time of his death.
    • 138 1 (b) Venue for all subsequent proceedings within the exclusive jurisdiction of the 2 Court is in the place where the initial proceeding occurred, unless the initial proceeding has 3 been transferred as provided in Section 1-303 or (c) of this section. 4 (c) If the first proceeding was informal, on application of an interested person and 5 after notice to the proponent in the first proceeding, the Court, upon finding that venue is 6 elsewhere, may transfer the proceeding and the file to the other court. 7 (d) For the purpose of aiding determinations concerning location of assets which 8 may be relevant in cases involving non-domiciliaries, a debt, other than one evidenced by 9 investment or commercial paper or other instrument in favor of a non-domiciliary is located 10 where the debtor resides or, if the debtor is a person other than an individual, at the place 11 where it has its principal office. Commercial paper, investment paper and other instruments 12 are located where the instrument is. An interest in property held in trust is located where the 13 trustee may be sued. 14 §3-202. Appointment or Testacy Proceedings; Conflicting Claim of Domicile in Another 15 State. 16 If conflicting claims as to the domicile of a decedent are made in a formal testacy or 17 appointment proceeding commenced in the Virgin Islands, and in a testacy or appointment 18 proceeding after notice pending at the same time in another state, the Court of the Virgin 19 Islands must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is 20 determined that the local proceeding was commenced before the proceeding elsewhere. The 21 determination of domicile in the proceeding first commenced must be accepted as 22 determinative in the proceeding in the Virgin Islands. 23 24
    • 139 1 §3-203. Priority Among Persons Seeking Appointment as Personal Representative. 2 (a) Whether the proceedings are formal or informal, persons who are not 3 disqualified have priority for appointment in the following order: 4 (1) the person with priority as determined by a probated will 5 including a person nominated by a power conferred in a will; 6 (2) the surviving spouse of the decedent who is a devisee of the 7 decedent; 8 (3) other devisees of the decedent; 9 (4) the surviving spouse of the decedent; 10 (5) other heirs of the decedent; 11 (6) 45 days after the death of the decedent, any creditor. 12 (b) An objection to an appointment can be made only in formal proceedings. In 13 case of objection the priorities stated in (a) apply except that (1) if the estate appears to be 14 more than adequate to meet exemptions and costs of administration but inadequate to 15 discharge anticipated unsecured claims, the Court, on petition of creditors, may appoint any 16 qualified person; (2) in case of objection to appointment of a person other than one whose 17 priority is determined by will by an heir or devisee appearing to have a substantial interest in 18 the estate, the Court may appoint a person who is acceptable to heirs and devisees whose 19 interests in the estate appear to be worth in total more than half of the probable distributable 20 value, or, in default of this accord any suitable person. 21 (c) A person entitled to letters under (2) through (5) of (a) above, and a person 22 aged 18 and over who would be entitled to letters but for his age, may nominate a qualified 23 person to act as personal representative. Any person aged 18 and over may renounce his 24 right to nominate or to an appointment by appropriate writing filed with the Court. When
    • 140 1 two or more persons share a priority, those of them who do not renounce must concur in 2 nominating another to act for them, or in applying for appointment. 3 (d) Conservators of the estates of protected persons, or if there is no conservator, 4 any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the 5 same right to nominate, to object to another's appointment, or to participate in determining 6 the preference of a majority in interest of the heirs and devisees that the protected person or 7 ward would have if qualified for appointment. 8 (e) Appointment of one who does not have priority, including priority resulting 9 from renunciation or nomination determined pursuant to this section, may be made only in 10 formal proceedings. Before appointing one without priority, the Court must determine that 11 those having priority, although given notice of the proceedings, have failed to request 12 appointment or to nominate another for appointment and that administration is necessary. 13 (f) No person is qualified to serve as a personal representative who is: 14 (1) under the age of 21; 15 (2) a person whom the Court finds unsuitable in formal proceedings. 16 (g) A personal representative appointed by a court of the decedent's domicile has 17 priority over all other persons except where the decedent's will nominates different persons to 18 be personal representative in the Virgin Islands and in the state of domicile. The domiciliary 19 personal representative may nominate another, who shall have the same priority as the 20 domiciliary personal representative. 21 (h) This section governs priority for appointment of a successor personal 22 representative but does not apply to the selection of a special administrator. 23
    • 141 1 §3-204. Demand for Notice of Order or Filing Concerning Decedent's Estate. 2 Any person desiring notice of any order or filing pertaining to a decedent's estate in 3 which the person has a financial or property interest, may file a demand for notice with the 4 Court at any time after the death of the decedent stating the name of the decedent, the nature 5 of the person’s interest in the estate, and the demandant's address or that of the demandant’s 6 attorney. The clerk shall mail a copy of the demand to the personal representative if one has 7 been appointed. After filing of a demand, no order or filing to which the demand relates may 8 be made or accepted without notice as prescribed in Section 1-401 to the demandant or his 9 attorney. The validity of an order which is issued or filing which is accepted without 10 compliance with this requirement shall not be affected by the error, but the petitioner 11 receiving the order or the person making the filing may be liable for any damage caused by 12 the absence of notice. The requirement of notice arising from a demand under this provision 13 may be waived in writing by the demandant and shall cease upon the termination of his 14 interest in the estate. 15 PART 3 16 INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS; 17 SUCCESSION WITHOUT ADMINISTRATION 18 §3-301. Informal Probate or Appointment Proceedings; Application; Contents. 19 (a) Applications for informal probate or informal appointment must be directed to 20 the Registrar, and verified by the applicant to be accurate and complete to the best of the 21 applicant’s knowledge and belief as to the following information: 22 (1) Every application for informal probate of a will or for informal 23 appointment of a personal representative, other than a special or successor 24 representative must contain the following:
    • 142 1 (i) a statement of the interest of the applicant; 2 (ii) the name, and date of death of the decedent, his age, and the 3 county and state or of his domicile at the time of death, and the names and 4 addresses of the spouse, children, heirs and devisees and the ages of any who 5 are minors so far as known or ascertainable with reasonable diligence by the 6 applicant; 7 (iii) if the decedent was not domiciled in the state at the time of his 8 death, a statement showing venue; 9 (iv) a statement identifying and indicating the address of any 10 personal representative of the decedent appointed in the Virgin Islands or 11 elsewhere whose appointment has not been terminated; 12 (v) a statement indicating whether the applicant has received a 13 demand for notice, or is aware of any demand for notice of any probate or 14 appointment proceeding concerning the decedent that may have been filed in 15 the Virgin Islands or elsewhere; and 16 (vi) that the time limit for informal probate or appointment as 17 provided in this Article has not expired either because 3 years or less have 18 passed since the decedent's death, or, if more than three years from death have 19 passed, circumstances as described by section 3-108 authorizing tardy probate 20 or appointment have occurred. 21 (2) An application for informal probate of a will must state the 22 following in addition to the statements required by (1):
    • 143 1 (i) that the original of the decedent's last will is in the possession 2 of the court, or accompanies the application, or that an authenticated copy of a 3 will probated in another jurisdiction accompanies the application; 4 (ii) that the applicant, to the best of the applicant’s knowledge, 5 believes the will to have been validly executed; 6 (iii) that after the exercise of reasonable diligence, the applicant is 7 unaware of any instrument revoking the will, and that the applicant believes 8 that the instrument which is the subject of the application is the decedent's last 9 will. 10 (3) An application for informal appointment of a personal representative 11 to administer an estate under a will shall describe the will by date of execution and 12 state the time and place of probate or the pending application or petition for probate. 13 The application for appointment must adopt the statements in the application or 14 petition for probate and state the name, address and priority for appointment of the 15 person whose appointment is sought. 16 (4) An application for informal appointment of an administrator in 17 intestacy must state in addition to the statements required by (1): 18 (i) that after the exercise of reasonable diligence, the applicant is 19 unaware of any unrevoked testamentary instrument relating to property having 20 a situs in the Virgin Islands under section 1-301, or, a statement why any such 21 instrument of which the applicant may be aware is not being probated; 22 (ii) the priority of the person whose appointment is sought and the 23 names of any other persons having a prior or equal right to the appointment 24 under section 3-203.
    • 144 1 (5) An application for appointment of a personal representative to succeed 2 a personal representative appointed under a different testacy status shall refer to the 3 order in the most recent testacy proceeding, state the name and address of the person 4 whose appointment is sought and of the person whose appointment will be terminated 5 if the application is granted, and describe the priority of the applicant. 6 (6) An application for appointment of a personal representative to succeed 7 a personal representative who has tendered a resignation as provided in section 8 3-610(c), or whose appointment has been terminated by death or removal, must adopt 9 the statements in the application or petition which led to the appointment of the 10 person being succeeded except as specifically changed or corrected, state the name 11 and address of the person who seeks appointment as successor, and describe the 12 priority of the applicant. 13 (b) By verifying an application for informal probate, or informal appointment, the 14 applicant submits personally to the jurisdiction of the court in any proceeding for relief from 15 fraud relating to the application, or for perjury, that may be instituted against him. 16 §3-302. Informal Probate; Duty of Registrar; Effect of Informal Probate. 17 Upon receipt of an application requesting informal probate of a will, the Registrar, 18 upon making the findings required by section 3-303 shall issue a written statement of 19 informal probate if at least 120 hours have elapsed since the decedent's death. Informal 20 probate is conclusive as to all persons until superseded by an order in a formal testacy 21 proceeding. No defect in the application or procedure relating thereto which leads to 22 informal probate of a will renders the probate void. 23
    • 145 1 §3-303. Informal Probate; Proof and Findings Required. 2 (a) In an informal proceeding for original probate of a will, the Registrar shall 3 determine whether: 4 (1) the application is complete; 5 (2) the applicant has made oath or affirmation that the statements 6 contained in the application are true to the best of his knowledge and belief; 7 (3) the applicant appears from the application to be an interested person as 8 defined in section 1-201 (23); 9 (4) on the basis of the statements in the application, venue is proper; 10 (5) an original, duly executed and apparently unrevoked will is in the 11 Registrar's possession; 12 (6) any notice required by section 3-204 has been given and that the 13 application is not within section 3-304; and 14 (7) it appears from the application that the time limit for original probate 15 has not expired. 16 (b) The application must be denied if it indicates that a personal representative 17 has been appointed in another judicial division of this Territory or except as provided in 18 subsection (d) , if it appears that this or another will of the decedent has been the subject of a 19 previous probate order. 20 (c) A will that appears to have the required signatures and which contains an 21 attestation clause showing that requirements of execution under sections 2-502, 2-503 or 22 2-506 have been met must be probated without further proof. In other cases, the Registrar 23 may assume execution if the will appears to have been properly executed, or the Registrar
    • 146 1 may accept a sworn statement or affidavit of any person having knowledge of the 2 circumstances of execution, whether or not the person was a witness to the will. 3 (d) Informal probate of a will that has been previously probated elsewhere may be 4 granted at any time upon written application by any interested person, together with deposit 5 of an authenticated copy of the will and of the statement probating it from the office or court 6 where it was first probated. 7 (e) A will from a place that does not provide for probate of a will after death and 8 which is not eligible for probate under subsection (a), may be probated in the Virgin Islands 9 upon receipt by the Registrar of a duly authenticated copy of the will and a duly 10 authenticated certificate of its legal custodian that the copy filed is a true copy and that the 11 will has become operative under the law of the other place. 12 § 3-304. Informal Probate; Unavailable in Certain Cases. 13 Applications for informal probate which relate to one or more of a known series of 14 testamentary instruments, other than a will and one or more codicils to a will , the latest of 15 which does not expressly revoke the earlier, must be declined. 16 §3-305. Informal Probate; Registrar Not Satisfied. 17 If the Registrar is not satisfied that a will is entitled to be probated in informal 18 proceedings because of failure to meet the requirements of sections 3-303 and 3-304 or any 19 other reason, the Registrar may decline the application. A declination of informal probate is 20 not an adjudication and does not preclude formal probate proceedings. 21 §3-306. Informal Probate; Notice Requirements. 22 (a) The moving party shall give notice as described by section 1-401 of his 23 application for informal probate to any person demanding it pursuant to section 3-204, and to
    • 147 1 any personal representative of the decedent whose appointment has not been terminated. No 2 other notice of informal probate is required. 3 (b) If an informal probate is granted, within 30 days thereafter the applicant shall 4 give written information of the probate to the heirs and devisees. The information must 5 include the name and address of the applicant, the name and location of the Court granting 6 the informal probate, and the date of the probate. The information must be delivered or sent 7 by ordinary mail to each of the heirs and devisees whose address is reasonably available to 8 the applicant. No duty to give information is incurred if a personal representative is 9 appointed who is required to give the written information required by Section 3-705. An 10 applicant's failure to give information as required by this section is a breach of his duty to the 11 heirs and devisees but does not affect the validity of the probate. 12 §3-307. Informal Appointment Proceedings; Delay in Order; Duty of Registrar; Effect 13 of Appointment. 14 (a) Upon receipt of an application for informal appointment of a personal 15 representative other than a special administrator as provided in section 3-614, if at least 120 16 hours have elapsed since the decedent's death, the Registrar, after making the findings 17 required by section 3-308, shall appoint the applicant subject to qualification and acceptance; 18 but if the decedent was a non-resident, the Registrar shall delay the order of appointment 19 until 30 days have elapsed since death, unless the personal representative appointed at the 20 decedent's domicile is the applicant, or unless the decedent's will directs that the decedent’s 21 estate be subject to the laws of the Virgin Islands. 22 (b) The status of personal representative and the powers and duties pertaining to 23 the office are fully established by informal appointment. An appointment and the office of
    • 148 1 personal representative created thereby, are subject to termination as provided in sections 2 3-608 through 3-612, but are not subject to retroactive vacation. 3 §3-308. Informal Appointment Proceedings; Proof and Findings Required. 4 (a) In informal appointment proceedings, the Registrar must determine whether: 5 (1) the application for informal appointment of a personal representative is 6 complete; 7 (2) the applicant has made oath or affirmation that the statements 8 contained in the application are true to the best of his knowledge and belief; 9 (3) the applicant appears from the application to be an interested person as 10 defined in section 1-201 (23); 11 (4) on the basis of the statements in the application, venue is proper; 12 (5) any will to which the requested appointment relates has been formally 13 or informally probated; but this requirement does not apply to the appointment of a 14 special administrator; 15 (6) any notice required by Section 3-204 has been given; 16 (7) from the statements in the application, the person whose appointment 17 is sought has priority entitling him to the appointment. 18 (b) Unless section 3-612 controls, the application must be denied if it indicates 19 that a personal representative who has not filed a written statement of resignation as provided 20 in section 3-610(c) has been appointed in this or another judicial division of this Territory, 21 that unless the applicant is the domiciliary personal representative or his nominee the 22 decedent was not domiciled in this Territory and that a personal representative whose
    • 149 1 appointment has not been terminated has been appointed by a Court in the state of domicile, 2 or that other requirements of this section have not been met. 3 § 3-309. Informal Appointment Proceedings; Registrar Not Satisfied. 4 If the Registrar is not satisfied that a requested informal appointment of a personal 5 representative should be made because of failure to meet the requirements of sections 3-307 6 and 3-308, or for any other reason, the Registrar may decline the application. A declination 7 of informal appointment is not an adjudication and does not preclude appointment in formal 8 proceedings. 9 §3-310. Informal Appointment Proceedings; Notice Requirements. 10 The moving party shall give notice as described by section 1-401 of his intention to 11 seek an appointment informally: (1) to any person demanding it pursuant to section 3-204; 12 and (2) to any person having a prior or equal right to appointment not waived in writing and 13 filed with the Court. No other notice of an informal appointment proceeding is required. 14 §3-311. Informal Appointment Unavailable in Certain Cases. 15 If an application for informal appointment indicates the existence of a possible 16 unrevoked testamentary instrument that may relate to property subject to the laws of the 17 Virgin Islands, and which is not filed for probate in this Court, the Registrar shall decline the 18 application. 19 §3-312. Universal Succession; In General. 20 The heirs of an intestate or the residuary devisees under a will, excluding minors and 21 incapacitated, protected, or unascertained persons, may become universal successors to the 22 decedent's estate by assuming personal liability for (1) taxes, (2) debts of the decedent, (3) 23 claims against the decedent or the estate, and (4) distributions due other heirs, devisees, and 24 persons entitled to property of the decedent as provided in sections 3-313 through 3-322.
    • 150 1 §3-313. Universal Succession; Application; Contents. 2 (a) An application to become universal successors by the heirs of an intestate or 3 the residuary devisees under a will must be directed to the Registrar, signed by each 4 applicant, and verified to be accurate and complete to the best of the applicant's knowledge 5 and belief as follows: 6 (1) An application by heirs of an intestate must contain the 7 statements required by Section 3-301 (a) (1) and (4) (i) and state that the 8 applicants constitute all the heirs other than minors and incapacitated, 9 protected, or unascertained persons. 10 (2) An application by residuary devisees under a will must be 11 combined with a petition for informal probate if the will has not been admitted 12 to probate in the Virgin Islands and must contain the statements required by 13 Section 3-301(a)(1) and (2). If the will has been probated in the Virgin 14 Islands, an application by residuary devisees must contain the statements 15 required by Section 3-301 (a) (2) (iii). An application by residuary devisees 16 must state that the applicants constitute the residuary devisees of the decedent 17 other than any minors and incapacitated, protected, or unascertained persons. 18 If the estate is partially intestate, all of the heirs other than minors and 19 incapacitated, protected, or unascertained persons must join as applicants. 20 (b) The application must state whether letters of administration are outstanding, 21 whether a petition for appointment of a personal representative of the decedent is pending in 22 any court of the Virgin Islands, and that the applicants waive their right to seek appointment 23 of a personal representative.
    • 151 1 (c) The application may describe in general terms the assets of the estate and 2 must state that the applicants accept responsibility for the estate and assume personal liability 3 for (1) taxes, (2) debts of the decedent, (3) claims against the decedent or the estate and (4) 4 distributions due other heirs, devisees, and persons entitled to property of the decedent as 5 provided in sections 3-316 through 3-322. 6 §3-314. Universal Succession; Proof and Findings Required. 7 (a) The Registrar shall grant the application if: 8 (1) the application is complete in accordance with section 3-313; 9 (2) all necessary persons have joined and have verified that the statements 10 contained therein are true, to the best knowledge and belief of each; 11 (3) venue is proper; 12 (4) any notice required by section 3-204 has been given or waived; 13 (5) the time limit for original probate or appointment proceedings has not 14 expired and the applicants claim under a will; 15 (6) the application requests informal probate of a will, the application and 16 findings conform with Sections 3-301(a)(2) and 3-303(a)(c)(d) and (e) so the will is 17 admitted to probate; and 18 (7) none of the applicants is a minor or an incapacitated or protected 19 person. 20 (b) The Registrar shall deny the application if letters of administration are 21 outstanding. 22 (c) Except as provided in section 3-322, the Registrar shall deny the application if 23 any creditor, heir, or devisee who is qualified by Section 3-605 to demand bond files an 24 objection.
    • 152 1 §3-315. Universal Succession; Duty of Registrar; Effect of Statement of Universal 2 Succession. 3 Upon receipt of an application under section 3-313, if at least 120 hours have elapsed 4 since the decedent's death, the Registrar, upon granting the application, shall issue a written 5 statement of universal succession describing the estate as set forth in the application and 6 stating that the applicants (i) are the universal successors to the assets of the estate as 7 provided in Section 3-312, (ii) have assumed liability for the obligations of the decedent, and 8 (iii)have acquired the powers and liabilities of universal successors. The statement of 9 universal succession is evidence of the universal successors' title to the assets of the estate. 10 Upon its issuance, the powers and liabilities of universal successors provided in Sections 11 3-316 through 3-322 attach and are assumed by the applicants. 12 §3-316. Universal Succession; Universal Successors' Powers. 13 Upon the Registrar's issuance of a statement of universal succession: 14 (1) Universal successors have full power of ownership to deal with the assets of 15 the estate subject to the limitations and liabilities in this title. The universal successors shall 16 proceed expeditiously to settle and distribute the estate without adjudication but if necessary 17 may invoke the jurisdiction of the court to resolve questions concerning the estate. 18 (2) Universal successors have the same powers as distributees from a personal 19 representative under sections 3-908 and 3-909 and third persons with whom they deal are 20 protected as provided in section 3-910. 21 (3) For purposes of collecting assets in another state whose law does not provide 22 for universal succession, universal successors have the same standing and power as personal 23 representatives or distributees in the Virgin Islands.
    • 153 1 §3-317. Universal Succession; Universal Successors' Liability to Creditors, Other Heirs, 2 Devisees and Persons Entitled to Decedent's Property; Liability of Other Persons 3 Entitled to Property. 4 (a) In the proportions and subject to limits expressed in section 3-321, universal 5 successors assume all liabilities of the decedent that were not discharged by reason of death 6 and liability for all taxes, claims against the decedent or the estate, and charges properly 7 incurred after death for the preservation of the estate, to the extent those items, if duly 8 presented, would be valid claims against the decedent's estate. 9 (b) In the proportions and subject to the limits expressed in section 3-321, 10 universal successors are personally liable to other heirs, devisees, and persons entitled to 11 property of the decedent for the assets or amounts that would be due those heirs, were the 12 estate administered, but no allowance having priority over devisees may be claimed for 13 attorney's fees or charges for preservation of the estate in excess of reasonable amounts 14 properly incurred. 15 (c) Universal successors are entitled to their interests in the estate as heirs or 16 devisees subject to priority and abatement pursuant to section 3-902 and to agreement 17 pursuant to section 3-912. 18 (d) Other heirs, devisees, and persons to whom assets have been distributed have 19 the same powers and liabilities as distributees under sections 3-908, 3-909, and 3-910. 20 (e) Absent breach of fiduciary obligations or express undertaking, a fiduciary's 21 liability is limited to the assets received by the fiduciary. 22 23
    • 154 1 §-318. Universal Succession; Universal Successors' Submission to Jurisdiction; When 2 Heirs or Devisees May Not Seek Administration. 3 (a) Upon issuance of the statement of universal succession, the universal 4 successors become subject to the personal jurisdiction of the Courts of the Virgin Islands in 5 any proceeding that may be instituted relating to the estate or to any liability assumed by 6 them. 7 (b) Any heir or devisee who voluntarily joins in an application under Section 8 3-313 may not subsequently seek appointment of a personal representative. 9 §3-319. Universal Succession; Duty of Universal Successors; Information to Heirs and 10 Devisees. 11 Not later than thirty days after issuance of the statement of universal succession, each 12 universal successor shall inform the heirs and devisees who did not join in the application of 13 the succession without administration. The information must be delivered or be sent by 14 ordinary mail to each of the heirs and devisees whose address is reasonably available to the 15 universal successors. The information must include the names and addresses of the universal 16 successors, indicate that it is being sent to persons who have or may have some interest in the 17 estate, and describe the court where the application and statement of universal succession has 18 been filed. The failure of a universal successor to give this information is a breach of duty to 19 the persons concerned but does not affect the validity of the approval of succession without 20 administration or the powers or liabilities of the universal successors. A universal successor 21 may inform other persons of the succession without administration by delivery or by ordinary 22 first class mail. 23 24
    • 155 1 §3-320. Universal Succession; Universal Successors' Liability For Restitution to Estate. 2 If a personal representative is subsequently appointed, universal successors are 3 personally liable for restitution of any property of the estate to which they are not entitled as 4 heirs or devisees of the decedent and their liability is the same as a distributee under section 5 3-909, subject to the provisions of sections 3-317 and 3-321 and the limitations of section 6 3-1006. 7 §3-321. Universal Succession; Liability of Universal Successors for Claims, Expenses, 8 Intestate Shares and Devises. 9 The liability of universal successors is subject to any defenses that would have been 10 available to the decedent. Other than liability arising from fraud, conversion, or other 11 wrongful conduct of a universal successor, the personal liability of each universal successor 12 to any creditor, claimant, other heir, devisee, or person entitled to decedent's property may 13 not exceed the proportion of the claim that the universal successor's share bears to the share 14 of all heirs and residuary devisees. 15 §3-322. Universal Succession; Remedies of Creditors, Other Heirs, Devisees or Persons 16 Entitled to Decedent's Property. 17 In addition to remedies otherwise provided by law, any creditor, heir, devisee, or 18 person entitled to decedent's property qualified under section 3-605, may demand bond of 19 universal successors. If the demand for bond precedes the granting of an application for 20 universal succession, it must be treated as an objection under section 3-314(c) unless it is 21 withdrawn, the claim satisfied, or the applicants post bond in an amount sufficient to protect 22 the demandant. If the demand for bond follows the granting of an application for universal 23 succession, the universal successors, within 10 days after notice of the demand, upon
    • 156 1 satisfying the claim or posting bond sufficient to protect the demandant, may disqualify the 2 demandant from seeking administration of the estate. 3 PART 4 4 FORMAL TESTACY AND APPOINTMENT PROCEEDINGS 5 §3-401. Formal Testacy Proceedings; Nature; When Commenced. 6 A formal testacy proceeding is litigation to determine whether a decedent left a valid 7 will. A formal testacy proceeding may be commenced by an interested person filing a 8 petition as described in section 3-402 (a) in which he requests that the Court, after notice and 9 hearing, enter an order probating a will, or a petition to set aside an informal probate of a will 10 or to prevent informal probate of a will which is the subject of a pending application, or a 11 petition in accordance with section 3-402 (b) for an order that the decedent died intestate. 12 A petition may seek formal probate of a will without regard to whether the same or a 13 conflicting will has been informally probated. A formal testacy proceeding may, but need 14 not, involve a request for appointment of a personal representative. 15 During the pendency of a formal testacy proceeding, the Registrar may not act upon 16 any application for informal probate of any will of the decedent or any application for 17 informal appointment of a personal representative of the decedent. 18 Unless a petition in a formal testacy proceeding also requests confirmation of the 19 previous informal appointment, a previously appointed personal representative, after receipt 20 of notice of the commencement of a formal probate proceeding, must refrain from exercising 21 his power to make any further distribution of the estate during the pendency of the formal 22 proceeding. A petitioner who seeks the appointment of a different personal representative in 23 a formal proceeding also may request an order restraining the acting personal representative 24 from exercising any of the powers of his office and requesting the appointment of a special
    • 157 1 administrator. In the absence of a request, or if the request is denied, the commencement of a 2 formal proceeding has no effect on the powers and duties of a previously appointed personal 3 representative other than those relating to distribution. 4 §3-402. Formal Testacy or Appointment Proceedings; Petition; Contents. 5 (a)(1) Petitions for formal probate of a will, or for adjudication of intestacy with or 6 without request for appointment of a personal representative, must be directed to the court, 7 request a judicial order after notice and hearing and contain further statements as indicated in 8 this section. A petition for formal probate of a will (1) requests an order as to the testacy of 9 the decedent in relation to a particular instrument which may or may not have been 10 informally probated and determining the heirs, (2) contains the statements required for 11 informal applications as stated in the six subparagraphs under section 3-301(a)(1), the 12 statements required by subparagraphs (ii) and (iii) of Section 3-301(a)(2), and (3) states 13 whether the original of the last will of the decedent is in the possession of the Court or 14 accompanies the petition. 15 (2) If the original will is neither in the possession of the Court nor 16 accompanies the petition and no authenticated copy of a will probated in another 17 jurisdiction accompanies the petition, the petition also must state the contents of the 18 will, and indicate that it is lost, destroyed, or otherwise unavailable. 19 (b) A petition for adjudication of intestacy and appointment of an administrator in 20 intestacy must request a judicial finding and order that the decedent left no will and 21 determining the heirs, contain the statements required by paragraphs (1) and (4) of section 22 3-301(a) and indicate whether supervised administration is sought. A petition may request an 23 order determining intestacy and heirs without requesting the appointment of an administrator,
    • 158 1 in which case, the statements required by subparagraph (ii) of Section 3-301(a)(4) above may 2 be omitted. 3 §3-403. Formal Testacy Proceedings; Notice of Hearing on Petition. 4 (a)(1) Upon commencement of a formal testacy proceeding, the Court shall fix a 5 time and place of hearing. Notice must be given in the manner prescribed by Section 1-401 6 by the petitioner to the persons enumerated in this subsection and to any additional person 7 who has filed a demand for notice under Section 3-204 of this Code. 8 (2) Notice must be given to the following persons: the surviving spouse, 9 children, and other heirs of the decedent, the devisees and executors named in any 10 will that is being, or has been, probated, or offered for informal or formal probate in 11 the judicial division, or that is known by the petitioner to have been probated, or 12 offered for informal or formal probate elsewhere, and any personal representative of 13 the decedent whose appointment has not been terminated. Notice may be given to 14 other persons. In addition, the petitioner shall give notice by publication to all 15 unknown persons and to all known persons whose addresses are unknown who have 16 any interest in the matters being litigated. 17 (b) If it appears by the petition or otherwise that the fact of the death of the 18 alleged decedent may be in doubt, or on the written demand of any interested person, a copy 19 of the notice of the hearing on the petition must be sent by registered mail to the alleged 20 decedent at his last known address. The Court shall direct the petitioner to report the results 21 of, or make and report back concerning, a reasonably diligent search for the alleged decedent 22 in any manner that may seem advisable including any or all of the following methods:
    • 159 1 (1) by inserting in one or more suitable periodicals a notice requesting 2 information from any person having knowledge of the whereabouts of the alleged 3 decedent; 4 (2) by notifying law enforcement officials and public welfare agencies in 5 appropriate locations of the disappearance of the alleged decedent; 6 (3) by engaging the services of an investigator. 7 (c) The costs of any search so directed must be paid by the petitioner if there is no 8 administration or by the estate of the decedent in case there is administration. 9 §3-404. Formal Testacy Proceedings; Written Objections to Probate. 10 Any party to a formal proceeding who opposes the probate of a will for any reason 11 must state in his pleadings his objections to probate of the will. 12 §3-405. Formal Testacy Proceedings; Uncontested Cases; Hearings and Proof. 13 If a petition in a testacy proceeding is unopposed, the court may order probate or 14 intestacy on the strength of the pleadings if satisfied that the conditions of section 3-409 have 15 been met, or conduct a hearing in open court and require proof of the matters necessary to 16 support the order sought. If evidence concerning execution of the will is necessary, the 17 affidavit or testimony of one of any attesting witnesses to the instrument is sufficient. If the 18 affidavit or testimony of an attesting witness is not available, execution of the will may be 19 proved by other evidence or affidavit. 20 §3-406. Formal Testacy Proceedings; Contested Cases; Testimony of Attesting 21 Witnesses. 22 (a) If evidence concerning execution of an attested will that is not self-proved is 23 necessary in contested cases, the testimony of at least one of the attesting witnesses, if within
    • 160 1 the state, competent and able to testify, is required. Due execution of an attested or 2 unattested will may be proved by other evidence. 3 (b) If the will is self-proved, compliance with signature requirements for 4 execution is conclusively presumed and other requirements of execution are presumed 5 subject to rebuttal without the testimony of any witness upon filing the will and the 6 acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or 7 forgery affecting the acknowledgment or affidavit. 8 §3-407. Formal Testacy Proceedings; Burdens in Contested Cases. 9 In contested cases, petitioners who seek to establish intestacy have the burden of 10 establishing prima facie proof of death, venue, and heirship. Proponents of a will have the 11 burden of establishing prima facie proof of due execution in all cases, and, if they are also 12 petitioners, prima facie proof of death and venue. Contestants of a will have the burden of 13 establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake 14 or revocation. Parties have the ultimate burden of persuasion as to matters with respect to 15 which they have the initial burden of proof. If a will is opposed by the petition for probate of 16 a later will revoking the former, it must be determined first whether the later will is entitled 17 to probate, and if a will is opposed by a petition for a declaration of intestacy, it must be 18 determined first whether the will is entitled to probate. 19 § 3-408. Formal Testacy Proceedings; Will Construction; Effect of Final Order in 20 Another Jurisdiction. 21 A final order of a court of another state determining testacy, the validity or 22 construction of a will, made in a proceeding involving notice to and an opportunity for 23 contest by all interested persons must be accepted as determinative by the courts of the
    • 161 1 Virgin Islands, if it includes, or is based upon, a finding that the decedent was domiciled at 2 his death in the state where the order was made. 3 §3-409. Formal Testacy Proceedings; Order; Foreign Will. 4 After the time required for any notice has expired, upon proof of notice, and after any 5 hearing that may be necessary, if the Court finds that the testator is dead, venue is proper and 6 that the proceeding was commenced within the limitation prescribed by section 3-108, it shall 7 determine the decedent's domicile at death, his heirs and his state of testacy. Any will found 8 to be valid and unrevoked must be formally probated. Termination of any previous informal 9 appointment of a personal representative, which may be appropriate in view of the relief 10 requested and findings, is governed by section 3-612. The petition must be dismissed or 11 appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. 12 A will from a place that does not provide for probate of a will after death, may be proved for 13 probate in the Virgin Islands by a duly authenticated certificate of its legal custodian that the 14 copy introduced is a true copy and that the will has become effective under the law of the 15 other place. 16 §3-410. Formal Testacy Proceedings; Probate of More Than One Instrument. 17 If two or more instruments are offered for probate before a final order is entered in a 18 formal testacy proceeding, more than one instrument may be probated if neither expressly 19 revokes the other or contains provisions which work a total revocation by implication. If 20 more than one instrument is probated, the order must indicate what provisions control in 21 respect to the nomination of an executor, if any. The order may, but need not, indicate how 22 any provisions of a particular instrument are affected by the other instrument. After a final 23 order in a testacy proceeding has been entered, no petition for probate of any other
    • 162 1 instrument of the decedent may be entertained, except incident to a petition to vacate or 2 modify a previous probate order and subject to the time limits of section 3-412. 3 §3-411. Formal Testacy Proceedings; Partial Intestacy. 4 If it becomes evident in the course of a formal testacy proceeding that, though one or 5 more instruments are entitled to be probated, the decedent's estate is or may be partially 6 intestate, the Court shall enter an order to that effect. 7 §3-412. Formal Testacy Proceedings; Effect of Order; Vacation. 8 Subject to appeal and subject to vacation as provided in this section and in section 9 3-413, a formal testacy order under sections 3-409 to 3-411, including an order that the 10 decedent left no valid will and determining heirs, is final as to all persons with respect to all 11 issues concerning the decedent's estate that the court considered or might have considered 12 incident to its rendition relevant to the question of whether the decedent left a valid will, and 13 to the determination of heirs, except that: 14 (1) The court shall entertain a petition for modification or vacation of its order 15 and probate of another will of the decedent if it is shown that the proponents of the 16 later-offered will: 17 (i) were unaware of its existence at the time of the earlier 18 proceeding: or 19 (ii) were unaware of the earlier proceeding and were given no 20 notice thereof, except by publication. 21 (2) If intestacy of all or part of the estate has been ordered, the determination of 22 heirs of the decedent may be reconsidered if it is shown that one or more persons were 23 omitted from the determination and it is also shown that the persons were unaware of their
    • 163 1 relationship to the decedent, were unaware of his death or were given no notice of any 2 proceeding concerning his estate, except by publication. 3 (3) A petition for vacation under paragraph (1) or (2) must be filed prior to the 4 earlier of the following time limits: 5 (i) if a personal representative has been appointed for the estate, the time 6 of entry of any order approving final distribution of the estate, or, if the estate is 7 closed by statement, six months after the filing of the closing statement; 8 (ii) whether or not a personal representative has been appointed for the 9 estate of the decedent, the time prescribed by Section 3-108 when it is no longer 10 possible to initiate an original proceeding to probate a will of the decedent; or 11 (iii) twelve months after the entry of the order sought to be vacated. 12 (4) The order originally rendered in the testacy proceeding may be modified or 13 vacated, if appropriate under the circumstances, by the order of probate of the later-offered 14 will or the order redetermining heirs. 15 (5) The finding of the fact of death is conclusive as to the alleged decedent only if 16 notice of the hearing on the petition in the formal testacy proceeding was sent by registered 17 or certified mail addressed to the alleged decedent at his last known address and the court 18 finds that a search under section 3-403(b) was made. 19 (6) If the alleged decedent is not dead, even if notice was sent and search was 20 made, the alleged decedent may recover estate assets in the hands of the personal 21 representative. In addition to any remedies available to the alleged decedent by reason of any 22 fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds 23 from distributees that is in their hands, or the value of distributions received by them, to the 24 extent that any recovery from distributees is equitable in view of all of the circumstances.
    • 164 1 § 3-413. Formal Testacy Proceedings; Vacation of Order For Other Cause. 2 For good cause shown, an order in a formal testacy proceeding may be modified or 3 vacated within the time allowed for appeal. 4 §3-414. Formal Proceedings Concerning Appointment of Personal Representative. 5 (a) A formal proceeding for adjudication regarding the priority or qualification of 6 one who is an applicant for appointment as personal representative, or of one who previously 7 has been appointed personal representative in informal proceedings, if an issue concerning 8 the testacy of the decedent is or may be involved, is governed by section 3-402, as well as by 9 this section. In other cases, the petition must contain or adopt the statements required by 10 section 3-301 (1) and describe the question relating to priority or qualification of the personal 11 representative which is to be resolved. If the proceeding precedes any appointment of a 12 personal representative, it must stay any pending informal appointment proceedings as well 13 as any commenced thereafter. If the proceeding is commenced after appointment, the 14 previously appointed personal representative, after receipt of notice thereof, shall refrain 15 from exercising any power of administration except as necessary to preserve the estate or 16 unless the Court orders otherwise. 17 (b) After notice to interested persons, including all persons interested in the 18 administration of the estate as successors under the applicable assumption concerning 19 testacy, any previously appointed personal representative and any person having or claiming 20 priority for appointment as personal representative, the Court shall determine who is entitled 21 to appointment under section 3-203, make a proper appointment and, if appropriate, 22 terminate any prior appointment found to have been improper as provided in cases of 23 removal under section 3-611. 24
    • 165 1 PART 5 2 SUPERVISED ADMINISTRATION 3 §3-501. Supervised Administration; Nature of Proceeding. 4 Supervised administration is a single in rem proceeding to secure complete 5 administration and settlement of a decedent's estate under the continuing authority of the 6 Court which extends until entry of an order approving distribution of the estate and 7 discharging the personal representative or other order terminating the proceeding. A 8 supervised personal representative is responsible to the Court, as well as to the interested 9 parties, and is subject to directions concerning the estate made by the Court on its own 10 motion or on the motion of any interested party. Except as otherwise provided in this Part, or 11 as otherwise ordered by the Court, a supervised personal representative has the same duties 12 and powers as a personal representative who is not supervised. 13 S§ 3-502. Supervised Administration; Petition; Order. 14 A petition for supervised administration may be filed by any interested person or by a 15 personal representative at any time or the prayer for supervised administration may be joined 16 with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the 17 priority and qualification of any personal representative have not been adjudicated 18 previously, the petition for supervised administration shall include the matters required of a 19 petition in a formal testacy proceeding and the notice requirements and procedures applicable 20 to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate 21 the testacy of the decedent and questions relating to the priority and qualifications of the 22 personal representative in any case involving a request for supervised administration, even 23 though the request for supervised administration may be denied. After notice to interested 24 persons, the court shall order supervised administration of a decedent's estate:
    • 166 1 (1) if the decedent's will directs supervised administration, the Court shall 2 order supervised administration unless the Court finds that circumstances bearing on 3 the need for supervised administration have changed since the execution of the will 4 and that there is no necessity for supervised administration; 5 (2) if the decedent's will directs unsupervised administration, the Court 6 shall order supervised administration only upon a finding that it is necessary for 7 protection of persons interested in the estate; or 8 (3) in other cases if the Court finds that supervised administration is 9 necessary under the circumstances. 10 §3-503. Supervised Administration; Effect on Other Proceedings. 11 (a) The pendency of a proceeding for supervised administration of a decedent's 12 estate stays action on any informal application then pending or thereafter filed. 13 (b) If a will has been previously probated in informal proceedings, the effect of 14 the filing of a petition for supervised administration is as provided for formal testacy 15 proceedings by section 3-401. 16 (c) After a personal representative has received notice of the filing of a petition 17 for supervised administration, the personal representative who has been appointed previously 18 may not exercise his power to distribute any estate. The filing of the petition does not affect 19 personal representative’s other powers and duties unless the Court restricts the exercise of 20 any of them pending full hearing on the petition. 21 §3-504. Supervised Administration; Powers of Personal Representative. 22 Unless restricted by the Court, a supervised personal representative has, without 23 interim orders approving exercise of a power, all powers of personal representatives under
    • 167 1 this Code, but the supervised personal representative may exercise the power to make any 2 distribution of the estate without prior order of the Court. Any other restriction on the power 3 of a personal representative which may be ordered by the Court must be endorsed on the 4 letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good 5 faith with the personal representative. 6 §3-505. Supervised Administration; Interim Orders; Distribution and Closing Orders. 7 Unless otherwise ordered by the Court, supervised administration is terminated by 8 order in accordance with time restrictions, notices and contents of orders prescribed for 9 proceedings under section 3-1001. Interim orders approving or directing partial distributions 10 or granting other relief may be issued by the Court at any time during the pendency of a 11 supervised administration on the application of the personal representative or any interested 12 person. 13 PART 6 14 PERSONAL REPRESENTATIVE; APPOINTMENT, 15 CONTROL AND TERMINATION OF AUTHORITY 16 §3-601. Qualification. 17 Before receiving letters, a personal representative shall qualify by filing with the 18 appointing Court any required bond and a statement of acceptance of the duties of the office. 19 §3-602. Acceptance of Appointment; Consent to Jurisdiction. 20 By accepting appointment, a personal representative submits personally to the 21 jurisdiction of the court in any proceeding relating to the estate which may be instituted by 22 any interested person. Notice of any proceeding must be delivered to the personal 23 representative, or mailed to the personal representative by ordinary first class mail at personal 24 representative’s address as listed in the application or petition for appointment or as
    • 168 1 thereafter reported to the Court and to the personal representative’s address as then known to 2 the petitioner. 3 §3-603. Bond Not Required Without Court Order, Exceptions. 4 No bond is required of a personal representative appointed in informal proceedings, 5 except (1) upon the appointment of a special administrator; (2) when an executor or other 6 personal representative is appointed to administer an estate under a will containing an 7 express requirement of bond; or (3) when bond is required under section 3-605. Bond may 8 be required by court order at the time of appointment of a personal representative appointed 9 in any formal proceeding except that bond is not required of a personal representative 10 appointed in formal proceedings if the will relieves the personal representative of bond, 11 unless bond has been requested by an interested party and the Court is satisfied that it is 12 desirable. Bond required by any will may be dispensed with in formal proceedings upon 13 determination by the court that it is not necessary. No bond is required of any personal 14 representative who, pursuant to statute, has deposited cash or collateral with an agency of the 15 Virgin Islands to secure performance of his duties. 16 §3-604. Bond Amount; Security; Procedure; Reduction. 17 If bond is required and the provisions of the will or order do not specify the amount, 18 unless stated in his application or petition, the person qualifying shall file a statement under 19 oath with the Registrar indicating his best estimate of the value of the personal estate of the 20 decedent and of the income expected from the personal and real estate during the next year, 21 and he shall execute and file a bond with the Registrar, or give other suitable security, in an 22 amount not less than the estimate. The Registrar shall determine that the bond is duly 23 executed by a corporate surety, or one or more individual sureties whose performance is 24 secured by pledge of personal property, mortgage on real property or other adequate security.
    • 169 1 The Registrar may permit the amount of the bond to be reduced by the value of assets of the 2 estate deposited with a domestic financial institution, as defined in Section 6-101, in a 3 manner that prevents their unauthorized disposition. On petition of the personal 4 representative or another interested person the Court may excuse a requirement of bond, 5 increase or reduce the amount of the bond, release sureties, or permit the substitution of 6 another bond with the same or different sureties. 7 §3-605. Demand For Bond by Interested Person. 8 Any person apparently having an interest in the estate worth in excess of $1000, or 9 any creditor having a claim in excess of $1000, may make a written demand that a personal 10 representative give bond. The demand must be filed with the Registrar and a copy mailed to 11 the personal representative, if appointment and qualification have occurred. Thereupon, 12 bond is required, but the requirement ceases if the person demanding bond ceases to be 13 interested in the estate, or if bond is excused as provided in section 3-603 or section 3-604. 14 After he has received notice and until the filing of the bond or cessation of the requirement of 15 bond, the personal representative shall refrain from exercising any powers of his office 16 except as necessary to preserve the estate. Failure of the personal representative to meet a 17 requirement of bond by giving suitable bond within 30 days after receipt of notice is cause 18 for the personal representative’s removal and appointment of a successor personal 19 representative. 20 §3-606. Terms and Conditions of Bonds. 21 (a) The following requirements and provisions apply to any bond required by this 22 Part:
    • 170 1 (1) Bonds must name the Government of the Virgin Islands as obligee for 2 the benefit of the persons interested in the estate and must be conditioned upon the 3 faithful discharge by the fiduciary of all duties according to law. 4 (2) Unless otherwise provided by the terms of the approved bond, sureties 5 are jointly and severally liable with the personal representative and with each other. 6 The address of sureties must be stated in the bond. 7 (3) By executing an approved bond of a personal representative, the surety 8 consents to the jurisdiction of the probate court which issued letters to the primary 9 obligor in any proceedings pertaining to the fiduciary duties of the personal 10 representative and naming the surety as a party. Notice of any proceeding must be 11 delivered to the surety or mailed to the surety by registered or certified mail at 12 address of the surety as listed with the court where the bond is filed and to address of 13 the surety as then known to the petitioner. 14 (4) On petition of a successor personal representative, any other personal 15 representative of the same decedent, or any interested person, a proceeding in the 16 Court may be initiated against a surety for breach of the obligation of the bond of the 17 personal representative. 18 (5) The bond of the personal representative is not void after the first 19 recovery but may be proceeded against from time to time until the whole penalty is 20 exhausted. 21 (b) No action or proceeding may be commenced against the surety on any matter 22 as to which an action or proceeding against the primary obligor is barred by adjudication or 23 limitation. 24
    • 171 1 §3-607. Order Restraining Personal Representative. 2 (a) On petition of any person who appears to have an interest in the estate, the 3 court by temporary order may restrain a personal representative from performing specified 4 acts of administration, disbursement, or distribution, or exercise of any powers or discharge 5 of any duties of his office, or make any other order to secure proper performance of his duty, 6 if it appears to the Court that the personal representative otherwise may take some action that 7 would jeopardize unreasonably the interest of the applicant or of some other interested 8 person. Persons with whom the personal representative may transact business may be made 9 parties. 10 (b) The matter must be set for hearing within 10 days unless the parties otherwise 11 agree. Notice as the Court directs must be given to the personal representative and the 12 personal representative’s attorney of record, if any, and to any other parties named defendant 13 in the petition. 14 S3-608. Termination of Appointment; General. 15 Termination of appointment of a personal representative occurs as indicated in 16 sections 3-609 to 3-612, inclusive. Termination ends the right and power pertaining to the 17 office of personal representative as conferred by this Code or any will, except that a personal 18 representative, at any time prior to distribution or until restrained or enjoined by court order, 19 may perform acts necessary to protect the estate and may deliver the assets to a successor 20 representative. Termination does not discharge the personal representative from liability for 21 transactions or omissions occurring before termination, or relieve the personal representative 22 of the duty to preserve assets subject to his control, to account for the assets and to deliver 23 the assets. Termination does not affect the jurisdiction of the Court over the personal
    • 172 1 representative, but terminates the authority to represent the estate in any pending or future 2 proceeding. 3 § 3-609. Termination of Appointment; Death or Disability. 4 The death of a personal representative or the appointment of a conservator for the 5 estate of a personal representative terminates his appointment. Until appointment and 6 qualification of a successor or special representative to replace the deceased or protected 7 representative, the representative of the estate of the deceased or protected personal 8 representative, if any, has the duty to protect the estate possessed and being administered by 9 his decedent or ward at the time his appointment terminates, has the power to perform acts 10 necessary for protection and shall account for and deliver the estate assets to a successor or 11 special personal representative upon his appointment and qualification. 12 §3-610. Termination of Appointment; Voluntary. 13 (a) An appointment of a personal representative terminates as provided in section 14 3-1003, one year after the filing of a closing statement. 15 (b) An order closing an estate as provided in section 3-1001 or 3-1002 terminates 16 an appointment of a personal representative. 17 (c) A personal representative may resign the position by filing a written statement 18 of resignation with the Registrar after he has given at least 15 days written notice to the 19 persons known to be interested in the estate. If no one applies or petitions for appointment of 20 a successor representative within the time indicated in the notice, the filed statement of 21 resignation is ineffective as a termination of appointment and in any event is effective only 22 upon the appointment and qualification of a successor representative and delivery of the 23 assets to him.
    • 173 1 §3-611. Termination of Appointment by Removal; Cause; Procedure. 2 (a) A person interested in the estate may petition for removal of a personal 3 representative for cause at any time. Upon filing of the petition, the Court shall fix a time 4 and place for hearing. Notice must be given by the petitioner to the personal representative, 5 and to other persons as the Court may order. Except as otherwise ordered as provided in 6 section 3-607, after receipt of notice of removal proceedings, the personal representative may 7 not act except to account, to correct maladministration or preserve the estate. If removal is 8 ordered, the court also shall direct by order the disposition of the assets remaining in the 9 name of, or under the control of, the personal representative being removed. 10 (b) Cause for removal exists when removal would be in the best interests of the 11 estate, or if it is shown that a personal representative or the person seeking his appointment 12 intentionally misrepresented material facts in the proceedings leading to his appointment, or 13 that the personal representative has disregarded an order of the court, has become incapable 14 of discharging the duties of his office, or has mismanaged the estate or failed to perform any 15 duty pertaining to the office. Unless the decedent's will directs otherwise, a personal 16 representative appointed at the decedent's domicile, incident to securing appointment of 17 himself or his nominee as ancillary personal representative, may obtain removal of another 18 who was appointed personal representative in the Virgin Islands to administer local assets. 19 §3-612. Termination of Appointment; Change of Testacy Status. 20 Except as otherwise ordered in formal proceedings, the probate of a will subsequent 21 to the appointment of a personal representative in intestacy or under a will which is 22 superseded by formal probate of another will, or the vacation of an informal probate of a will 23 subsequent to the appointment of the personal representative there under, does not terminate 24 the appointment of the personal representative although his powers may be reduced as
    • 174 1 provided in section 3-401. Termination occurs upon appointment in informal or formal 2 appointment proceedings of a person entitled to appointment under the later assumption 3 concerning testacy. If no request for new appointment is made within 30 days after 4 expiration of time for appeal from the order in formal testacy proceedings, or from the 5 informal probate, changing the assumption concerning testacy, the previously appointed 6 personal representative upon request may be appointed personal representative under the 7 subsequently probated will, or as in intestacy as the case may be. 8 §3-613. Successor Personal Representative. 9 Parts 3 and 4 of this Article govern proceedings for appointment of a personal 10 representative to succeed one whose appointment has been terminated. After appointment 11 and qualification, a successor personal representative may be substituted in all actions and 12 proceedings to which the former personal representative was a party, and no notice, process 13 or claim which was given or served upon the former personal representative need be given to 14 or served upon the successor in order to preserve any position or right the person giving the 15 notice or filing the claim may thereby have obtained or preserved with reference to the 16 former personal representative. Except as otherwise ordered by the Court, the successor 17 personal representative has the powers and duties in respect to the continued administration 18 which the former personal representative would have had if his appointment had not been 19 terminated. 20 §3-614. Special Administrator; Appointment. 21 A special administrator may be appointed: 22 (1) informally by the Registrar on the application of any interested person when 23 necessary to protect the estate of a decedent prior to the appointment of a general personal 24 representative or if a prior appointment has been terminated as provided in section 3-609;
    • 175 1 (2) in a formal proceeding by order of the court on the petition of any interested 2 person and finding, after notice and hearing, that appointment is necessary to preserve the 3 estate or to secure its proper administration including its administration in circumstances 4 where a general personal representative cannot or should not act. If it appears to the Court 5 that an emergency exists, appointment may be ordered without notice. 6 §3-615. Special Administrator; Who May Be Appointed. 7 (a) If a special administrator is to be appointed pending the probate of a will that 8 is the subject of a pending application or petition for probate, the person named executor in 9 the will must be appointed if available, and qualified. 10 (b) In other cases, any proper person may be appointed special administrator. 11 §3-616. Special Administrator; Appointed Informally; Powers and Duties. 12 A special administrator appointed by the Registrar in informal proceedings pursuant 13 to section 3-614 (1) has the duty to collect and manage the assets of the estate, to preserve 14 them, to account therefor and to deliver them to the general personal representative upon his 15 qualification. The special administrator has the power of a personal representative under the 16 Code necessary to perform his duties. 17 §3-617. Special Administrator; Formal Proceedings; Power and Duties. 18 A special administrator appointed by order of the Court in any formal proceeding has 19 the power of a general personal representative except as limited in the appointment and 20 duties as prescribed in the order. The appointment may be for a specified time, to perform 21 particular acts or on other terms as the Court may direct. 22 §3-618. Termination of Appointment; Special Administrator. 23 The appointment of a special administrator terminates in accordance with the 24 provisions of the order of appointment or on the appointment of a general personal
    • 176 1 representative. In other cases, the appointment of a special administrator is subject to 2 termination as provided in sections 3-608 through 3-611. 3 §3-619. Universal Succession; Duty of Universal Successors; Information to Heirs and 4 Devisees. 5 Not later than thirty days after issuance of the statement of universal succession, each 6 universal successor shall inform the heirs and devisees who did not join in the application of 7 the succession without administration. The information must be delivered or be sent by 8 ordinary mail to each of the heirs and devisees whose address is reasonably available to the 9 universal successors. The information must include the names and addresses of the universal 10 successors, indicate that it is being sent to persons who have or may have some interest in the 11 estate, and describe the court where the application and statement of universal succession has 12 been filed. The failure of a universal successor to give this information is a breach of duty to 13 the persons concerned but does not affect the validity of the approval of succession without 14 administration or the powers or liabilities of the universal successors. A universal successor 15 may inform other persons of the succession without administration by delivery or by ordinary 16 first class mail. 17 §3-620. Universal Succession; Universal Successors' Liability For Restitution to Estate. 18 If a personal representative is subsequently appointed, universal successors are 19 personally liable for restitution of any property of the estate to which they are not entitled as 20 heirs or devisees of the decedent and their liability is the same as a distributee under Section 21 3-909, subject to the provisions of sections 3-317 and 3-321 and the limitations of section 22 3-1006. 23
    • 177 1 §3-621. Universal Succession; Liability of Universal Successors for Claims, Expenses, 2 Intestate Shares and Devises. 3 The liability of universal successors is subject to any defenses that would have been 4 available to the decedent. Other than liability arising from fraud, conversion, or other 5 wrongful conduct of a universal successor, the personal liability of each universal successor 6 to any creditor, claimant, other heir, devisee, or person entitled to decedent's property may 7 not exceed the proportion of the claim that the universal successor's share bears to the share 8 of all heirs and residuary devisees. 9 §3-622. Universal Succession; Remedies of Creditors, Other Heirs, Devisees or Persons 10 Entitled to Decedent's Property. 11 In addition to remedies otherwise provided by law, any creditor, heir, devisee, or 12 person entitled to decedent's property qualified under section 3-605, may demand bond of 13 universal successors. If the demand for bond precedes the granting of an application for 14 universal succession, it must be treated as an objection under section 3-314(c) unless it is 15 withdrawn, the claim satisfied, or the applicants post bond in an amount sufficient to protect 16 the demandant. If the demand for bond follows the granting of an application for universal 17 succession, the universal successors, within 10 days after notice of the demand, upon 18 satisfying the claim or posting bond sufficient to protect the demandant, may disqualify the 19 demandant from seeking administration of the estate. 20 PART 7 21 DUTIES AND POWERS OF PERSONAL REPRESENTATIVES 22 §3-701. Time of Accrual of Duties and Powers. 23 The duties and powers of a personal representative commence upon his appointment. 24 The powers of a personal representative relate back in time to give acts by the person
    • 178 1 appointed which are beneficial to the estate occurring prior to appointment the same effect as 2 those occurring thereafter. Prior to appointment, a person named executor in a will may 3 carry out written instructions of the decedent relating to his body, funeral and burial 4 arrangements. A personal representative may ratify and accept acts on behalf of the estate 5 done by others where the acts would have been proper for a personal representative. 6 §3-702. Priority Among Different Letters. 7 A person to whom general letters are issued first has exclusive authority under the 8 letters until his appointment is terminated or modified. If, through error, general letters are 9 afterwards issued to another, the first appointed representative may recover any property of 10 the estate in the hands of the representative subsequently appointed, but the acts of the latter 11 done in good faith before notice of the first letters are not void for want of validity of 12 appointment. 13 §3-703. General Duties; Relation and Liability to Persons Interested in Estate; Standing 14 to Sue. 15 (a) A personal representative is a fiduciary who shall observe the standards of 16 care applicable to trustees as described by section 7-302. A personal representative is under 17 a duty to settle and distribute the estate of the decedent in accordance with the terms of any 18 probated and effective will and this Code, and as expeditiously and efficiently as is consistent 19 with the best interests of the estate. The personal representative shall use the authority 20 conferred upon him by this Code, the terms of the will, if any, and any order in proceedings 21 to which he is party for the best interests of successors to the estate. 22 (b) A personal representative may not be charged for acts of administration or 23 distribution if the conduct in question was authorized at the time. Subject to other 24 obligations of administration, an informally probated will is authority to administer and
    • 179 1 distribute the estate according to its terms. An order of appointment of a personal 2 representative, whether issued in informal or formal proceedings is authority to distribute 3 apparently intestate assets to the heirs of the decedent if, at the time of distribution, the 4 personal representative is not aware of a pending testacy proceeding, a proceeding to vacate 5 an order entered in an earlier testacy proceeding, a formal proceeding questioning his 6 appointment or fitness to continue, or a supervised administration proceeding. This section 7 does not affect the duty of the personal representative to administer and distribute the estate 8 in accordance with the rights of claimants whose claims have been allowed, the surviving 9 spouse, any minor and dependent children and any pretermitted child of the decedent as 10 described elsewhere in this Code. 11 (c) Except as to proceedings that do not survive the death of the decedent, a 12 personal representative of a decedent domiciled in Virgin Islands at his death has the same 13 standing to sue and be sued in the Courts of the Virgin Islands and the courts of any other 14 jurisdiction as his decedent had immediately prior to death. 15 §3-704. Personal Representative to Proceed Without Court Order; Exception. 16 A personal representative shall proceed expeditiously with the settlement and 17 distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a 18 supervised personal representative, do so without adjudication, order, or direction of the 19 court, but he may invoke the jurisdiction of the Court, in proceedings authorized by this 20 Code, to resolve questions concerning the estate or its administration. 21 §3-705. Duty of Personal Representative; Information to Heirs and Devisees. 22 Not later than 30 days after appointment every personal representative, except any 23 special administrator, shall give information of his appointment to the heirs and devisees, 24 including, if there has been no formal testacy proceeding and if the personal representative
    • 180 1 was appointed on the assumption that the decedent died intestate, the devisees in any will 2 mentioned in the application for appointment of a personal representative. The information 3 must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is 4 reasonably available to the personal representative. The duty does not extend to require 5 information to persons who have been adjudicated in a prior formal testacy proceeding to 6 have no interest in the estate. The information must include the name and address of the 7 personal representative, indicate that it is being sent to persons who have or may have some 8 interest in the estate being administered, indicate whether bond has been filed, and describe 9 the Court where papers relating to the estate are on file. The information must state that the 10 estate is being administered by the personal representative under the Virgin Islands Probate 11 Code without supervision by the Court but that recipients are entitled to information 12 regarding the administration from the personal representative and may petition the Court in 13 any matter relating to the estate, including distribution of assets and expenses of 14 administration. The personal representative's failure to give this information is a breach of 15 his duty to the persons concerned but does not affect the validity of his appointment, his 16 powers or other duties. A personal representative may inform other persons of his 17 appointment by delivery or ordinary first class mail. 18 §3-706. Duty of Personal Representative; Inventory and Appraisement. 19 (a) Within three months after appointment, a personal representative, who is not 20 a special administrator or a successor to another representative who has previously 21 discharged this duty, shall prepare and file or mail an inventory of property owned by the 22 decedent at the time of his death, listing it with reasonable detail, and indicating as to each 23 listed item, its fair market value as of the date of the decedent's death, and the type and 24 amount of any encumbrance that may exist with reference to any item.
    • 181 1 (b) The personal representative shall send a copy of the inventory to interested 2 persons who request it. He may also file the original of the inventory with the Court. 3 §3-707. Employment of Appraisers. 4 The personal representative may employ a qualified and disinterested appraiser to 5 assist him in ascertaining the fair market value as of the date of the decedent's death of any 6 asset the value of which may be subject to reasonable doubt. Different persons may be 7 employed to appraise different kinds of assets included in the estate. The names and 8 addresses of any appraiser must be indicated on the inventory with the item or items he 9 appraised. 10 §3-708. Duty of Personal Representative; Supplementary Inventory. 11 If any property not included in the original inventory comes to the knowledge of a 12 personal representative or if the personal representative learns that the value or description 13 indicated in the original inventory for any item is erroneous or misleading, the personal 14 representative shall make a supplementary inventory or appraisement showing the market 15 value as of the date of the decedent's death of the new item or the revised market value or 16 descriptions, and the appraisers or other data relied upon, if any, and file it with the court if 17 the original inventory was filed, or furnish copies thereof or information thereof to persons 18 interested in the new information. 19 § 3-709. Duty of Personal Representative; Possession of Estate. 20 Except as otherwise provided by a decedent's will, every personal representative has a 21 right to, and shall take possession or control of, the decedent's property, except that any real 22 property or tangible personal property may be left with or surrendered to the person 23 presumptively entitled the property unless, in the judgment of the personal representative, 24 possession of the property by him will be necessary for purposes of administration. The
    • 182 1 request by a personal representative for delivery of any property possessed by an heir or 2 devisee is conclusive evidence, in any action against the heir or devisee for possession 3 thereof, that the possession of the property by the personal representative is necessary for 4 purposes of administration. The personal representative shall pay taxes on, and take all steps 5 reasonably necessary for the management, protection and preservation of, the estate in his 6 possession. The personal representative may maintain an action to recover possession of 7 property or to determine the title to the property. 8 §3-710. Power to Avoid Transfers. 9 The property liable for the payment of unsecured debts of a decedent includes all 10 property transferred by the decedent by any means which is in law void or voidable as 11 against the decedent’s creditors, and subject to prior liens, the right to recover this property, 12 so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the 13 personal representative. 14 § 3-711. Powers of Personal Representatives; In General. 15 Until termination of his appointment a personal representative has the same power 16 over the title to property of the estate that an absolute owner would have, in trust however, 17 for the benefit of the creditors and others interested in the estate. This power may be 18 exercised without notice, hearing, or order of court. 19 § 3-712. Improper Exercise of Power; Breach of Fiduciary Duty. 20 If the exercise of power concerning the estate is improper, the personal representative 21 is liable to interested persons for damage or loss resulting from breach of his fiduciary duty 22 to the same extent as a trustee of an express trust. The rights of purchasers and others 23 dealing with a personal representative are determined as provided in sections 3-713 and 24 3-714.
    • 183 1 §3-713. Sale, Encumbrance or Transaction Involving Conflict of Interest; Voidable; 2 Exceptions. 3 Any sale or encumbrance to the personal representative, his spouse, agent or attorney, 4 or any corporation or trust in which he has a substantial beneficial interest, or any transaction 5 that is affected by a substantial conflict of interest on the part of the personal representative, 6 is voidable by any person interested in the estate except one who has consented after fair 7 disclosure, unless (1) the will or a contract entered into by the decedent expressly authorized 8 the transaction; or (2) the transaction is approved by the Court after notice to interested 9 persons. 10 §3-714. Persons Dealing with Personal Representative; Protection. 11 A person who in good faith either assists a personal representative or deals with the 12 personal representative for value is protected as if the personal representative properly 13 exercised his power. The fact that a person knowingly deals with a personal representative 14 does not alone require the person to inquire into the existence of a power or the propriety of 15 its exercise. Except for restrictions on powers of supervised personal representatives which 16 are endorsed on letters as provided in section 3-504, no provision in any will or order of the 17 court purporting to limit the power of a personal representative is effective except as to 18 persons with actual knowledge thereof. A person is not bound to see to the proper 19 application of estate assets paid or delivered to a personal representative. The protection here 20 expressed extends to instances in which some procedural irregularity or jurisdictional defect 21 occurred in proceedings leading to the issuance of letters, including a case in which the 22 alleged decedent is found to be alive. The protection here expressed is not by substitution for 23 that provided by comparable provisions of the laws relating to commercial transactions and 24 laws simplifying transfers of securities by fiduciaries.
    • 184 1 §3-715. Transactions Authorized for Personal Representatives; Exceptions. 2 Except as restricted or otherwise provided by the will or by an order in a formal 3 proceeding and subject to the priorities stated in section 3-902, a personal representative, 4 acting reasonably for the benefit of the interested persons, may properly: 5 (1) retain assets owned by the decedent pending distribution or liquidation 6 including those in which the representative is personally interested or which are 7 otherwise improper for trust investment; 8 (2) receive assets from fiduciaries, or other sources; 9 (3) perform, compromise or refuse performance of the decedent's 10 contracts that continue as obligations of the estate, as he may determine under the 11 circumstances. In performing enforceable contracts by the decedent to convey or 12 lease land, the personal representative, among other possible courses of action, may: 13 (i) execute and deliver a deed of conveyance for cash payment of 14 all sums remaining due or the purchaser's note for the sum remaining due 15 secured by a mortgage or deed of trust on the land; or 16 (ii) deliver a deed in escrow with directions that the proceeds, 17 when paid in accordance with the escrow agreement, be paid to the 18 successors of the decedent, as designated in the escrow agreement; 19 (4) satisfy written charitable pledges of the decedent irrespective of 20 whether the pledges constituted binding obligations of the decedent or were properly 21 presented as claims, if in the judgment of the personal representative the decedent 22 would have wanted the pledges completed under the circumstances; 23 (5) if funds are not needed to meet debts and expenses currently payable 24 and are not immediately distributable, deposit or invest liquid assets of the estate,
    • 185 1 including moneys received from the sale of other assets, in federally insured interest- 2 bearing accounts, readily marketable secured loan arrangements or other prudent 3 investments which would be reasonable for use by trustees generally; 4 (6) acquire or dispose of an asset, including land in this or another state, 5 for cash or on credit, at public or private sale; and manage, develop, improve, 6 exchange, partition, change the character of, or abandon an estate asset; 7 (7) make ordinary or extraordinary repairs or alterations in buildings or 8 other structures, demolish any improvements, raze existing or erect new party walls 9 or buildings; 10 (8) subdivide, develop or dedicate land to public use; make or obtain the 11 vacation of plats and adjust boundaries; or adjust differences in valuation on 12 exchange or partition by giving or receiving considerations; or dedicate easements to 13 public use without consideration; 14 (9) enter for any purpose into a lease as lessor or lessee, with or without 15 option to purchase or renew, for a term within or extending beyond the period of 16 administration; 17 (10) enter into a lease or arrangement for exploration and removal of 18 minerals or other natural resources or enter into a pooling or unitization agreement; 19 (11) abandon property when, in the opinion of the personal representative, 20 it is valueless, or is so encumbered, or is in condition that it is of no benefit to the 21 estate; 22 (12) vote stocks or other securities in person or by general or limited proxy;
    • 186 1 (13) pay calls, assessments, and other sums chargeable or accruing against 2 or on account of securities, unless barred by the provisions relating to claims; 3 (14) hold a security in the name of a nominee or in other form without 4 disclosure of the interest of the estate but the personal representative is liable for any 5 act of the nominee in connection with the security so held; 6 (15) insure the assets of the estate against damage, loss and liability and 7 himself against liability as to third persons; 8 (16) borrow money with or without security to be repaid from the estate 9 assets or otherwise; and advance money for the protection of the estate; 10 (17) effect a fair and reasonable compromise with any debtor or obligor, or 11 extend, renew or in any manner modify the terms of any obligation owing to the 12 estate. If the personal representative holds a mortgage, pledge or other lien upon 13 property of another person, he may, in lieu of foreclosure, accept a conveyance or 14 transfer of encumbered assets from the owner thereof in satisfaction of the 15 indebtedness secured by lien; 16 (18) pay taxes, assessments, compensation of the personal representative, 17 and other expenses incident to the administration of the estate; 18 (19) sell or exercise stock subscription or conversion rights; consent, 19 directly or through a committee or other agent, to the reorganization, consolidation, 20 merger, dissolution, or liquidation of a corporation or other business enterprise; 21 (20) allocate items of income or expense to either estate income or 22 principal, as permitted or provided by law;
    • 187 1 (21) employ persons, including attorneys, auditors, investment advisors, or 2 agents, even if they are associated with the personal representative, to advise or assist 3 the personal representative in the performance of his administrative duties; act 4 without independent investigation upon their recommendations; and instead of acting 5 personally, employ one or more agents to perform any act of administration, whether 6 or not discretionary; 7 (22) prosecute or defend claims, or proceedings in any jurisdiction for the 8 protection of the estate and of the personal representative in the performance of his 9 duties; 10 (23) sell, mortgage, or lease any real or personal property of the estate or 11 any interest therein for cash, credit, or for part cash and part credit, and with or 12 without security for unpaid balances; 13 (24) continue any unincorporated business or venture in which the decedent 14 was engaged at the time of his death (i) in the same business form for a period of not 15 more than 4 months from the date of appointment of a general personal representative 16 if continuation is a reasonable means of preserving the value of the business including 17 good will, (ii) in the same business form for any additional period of time that may be 18 approved by order of the court in a formal proceeding to which the persons interested 19 in the estate are parties; or (iii) throughout the period of administration if the 20 business is incorporated by the personal representative and if none of the probable 21 distributees of the business who are competent adults object to its incorporation and 22 retention in the estate; 23 (25) incorporate any business or venture in which the decedent was 24 engaged at the time of his death;
    • 188 1 (26) provide for exoneration of the personal representative from personal 2 liability in any contract entered into on behalf of the estate; 3 (27) satisfy and settle claims and distribute the estate as provided in this 4 Code. 5 § 3-716. Powers and Duties of Successor Personal Representative. 6 A successor personal representative has the same power and duty as the original 7 personal representative to complete the administration and distribution of the estate, as 8 expeditiously as possible, but he may not exercise any power expressly made personal to the 9 executor named in the will. 10 §3-717. Co-representatives; When Joint Action Required. 11 If two or more persons are appointed co-representatives and unless the will provides 12 otherwise, the concurrence of all is required on all acts connected with the administration and 13 distribution of the estate. This restriction does not apply when any co-representative receives 14 and receipts for property due the estate, when the concurrence of all cannot readily be 15 obtained in the time reasonably available for emergency action necessary to preserve the 16 estate, or when a co-representative has been delegated to act for the others. Persons dealing 17 with a co-representative if actually unaware that another has been appointed to serve with 18 him or if advised by the personal representative with whom they deal that he has authority to 19 act alone for any of the reasons mentioned herein, are as fully protected as if the person with 20 whom they dealt had been the sole personal representative. 21 §3-718. Powers of Surviving Personal Representative. 22 Unless the terms of the will otherwise provide, every power exercisable by personal 23 co-representatives may be exercised by the one or more remaining after the appointment of
    • 189 1 one or more is terminated, and if one of two or more nominated as co-executors is not 2 appointed, those appointed may exercise all the powers incident to the office. 3 §3-719. Compensation of Personal Representative. 4 A personal representative is entitled to reasonable compensation for his services. If a 5 will provides for compensation of the personal representative and there is no contract with 6 the decedent regarding compensation, the personal representative may renounce the 7 provision before qualifying and be entitled to reasonable compensation. A personal 8 representative also may renounce his right to all or any part of the compensation. A written 9 renunciation of fee may be filed with the court. 10 § 3-720. Expenses in Estate Litigation. 11 If any personal representative or person nominated as personal representative defends 12 or prosecutes any proceeding in good faith, whether successful or not, the personal 13 representative is entitled to receive from the estate necessary expenses and disbursements 14 including reasonable attorneys' fees incurred. 15 §3-721. Proceedings for Review of Employment of Agents and Compensation of 16 Personal Representatives and Employees of Estate. 17 After notice to all interested persons or on petition of an interested person or on 18 appropriate motion if administration is supervised, the propriety of employment of any 19 person by a personal representative including any attorney, auditor, investment advisor or 20 other specialized agent or assistant, the reasonableness of the compensation of any person so 21 employed, or the reasonableness of the compensation determined by the personal 22 representative for his own services, may be reviewed by the Court. Any person who has 23 received excessive compensation from an estate for services rendered may be ordered to 24 make appropriate refunds.
    • 190 1 PART 8 2 CREDITORS' CLAIMS 3 §3-801. Notice to Creditors. 4 (a) Unless notice has already been given under this section, a personal 5 representative upon appointment shall publish a notice to creditors once a week for three 6 successive weeks in a newspaper of general circulation in the Virgin Islands announcing the 7 appointment and the personal representative's address and notifying creditors of the estate to 8 present their claims within four months after the date of the first publication of the notice or 9 be forever barred. 10 (b) A personal representative may give written notice by mail or other delivery to 11 a creditor, notifying the creditor to present the creditor’s claim within four months after the 12 published notice, if given as provided in subsection (a), or within 60 days after the mailing or 13 other delivery of the notice, whichever is later, or be forever barred. Written notice must be 14 the notice described in subsection (a) or a similar notice. 15 (c) The personal representative is not liable to a creditor or to a successor of the 16 decedent for giving or failing to give notice under this section. 17 §3-802. Statutes of Limitations. 18 (a) Unless an estate is insolvent, the personal representative, with the consent of 19 all successors whose interests would be affected, may waive any defense of limitations 20 available to the estate. If the defense is not waived, no claim barred by a statute of 21 limitations at the time of the decedent's death may be allowed or paid. 22 (b) The running of a statute of limitations measured from an event other than 23 death or the giving of notice to creditors is suspended for four months after the decedent's 24 death, but resumes thereafter as to claims not barred by other sections.
    • 191 1 (c) For purposes of a statute of limitations, the presentation of a claim pursuant to 2 section 3-804 is equivalent to commencement of a proceeding on the claim. 3 §3-803. Limitations on Presentation of Claims. 4 (a) All claims against a decedent's estate which arose before the death of the 5 decedent, including claims of the Government of the Virgin Islands or and any political 6 subdivision thereof, whether due or to become due, absolute or contingent, liquidated or 7 unliquidated, founded on, if not barred earlier by another statute, contract, tort, or other legal 8 basis of limitations or non-claim statute, are barred against the estate, the personal 9 representative, the heirs and devisees and non-probate transferees of the decedent, unless 10 presented within the earlier of the following: 11 (1) one year after the decedent's death; or 12 (2) the time provided by section 3-801(b) for creditors who are given 13 actual notice, and within the time provided in Section 3-801(a) for all creditors barred 14 by publication. 15 (b) A claim described in subsection (a) which is barred by the non-claim statute 16 of the decedent's domicile before the giving of notice to creditors in the Virgin Islands is 17 barred in the Virgin Islands. 18 (c) All claims against a decedent's estate which arise at or after the death of the 19 decedent, including claims of the Government of the Virgin Islands and any subdivision 20 thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, 21 founded on contract, tort, or other legal basis, are barred against the estate, the personal 22 representative, and the heirs and devisees of the decedent, unless presented as follows: 23 (1) a claim based on a contract with the personal representative, within 24 four months after performance by the personal representative is due; or
    • 192 1 (2) any other claim, within the later of four months after it arises, or the 2 time specified in subsection (a)(1). 3 (d) Nothing in this section affects or prevents: 4 (1) any proceeding to enforce any mortgage, pledge, or other lien upon 5 property of the estate; 6 (2) to the limits of the insurance protection only, any proceeding to 7 establish liability of the decedent or the personal representative for which he is 8 protected by liability insurance; or 9 (3) collection of compensation for services rendered and reimbursement 10 for expenses advanced by the personal representative or by the attorney or accountant 11 for the personal representative of the estate. 12 §3-804. Manner of Presentation of Claims. 13 Claims against a decedent's estate may be presented as follows: 14 (1) The claimant may deliver or mail to the personal representative a written 15 statement of the claim indicating its basis, the name and address of the claimant, and the 16 amount claimed, or may file a written statement of the claim, in the form prescribed by rule, 17 with the clerk of the court. The claim is deemed presented on the first to occur of receipt of 18 the written statement of claim by the personal representative, or the filing of the claim with 19 the court. If a claim is not yet due, the date when it will become due must be stated. If the 20 claim is contingent or unliquidated, the nature of the uncertainty must be stated. If the claim 21 is secured, the security must be described. Failure to describe correctly the security, the 22 nature of any uncertainty, and the due date of a claim not yet due does not invalidate the 23 presentation made.
    • 193 1 (2) The claimant may commence a proceeding against the personal representative 2 in any court where the personal representative may be subjected to jurisdiction, to obtain 3 payment of his claim against the estate, but the commencement of the proceeding must occur 4 within the time limited for presenting the claim. No presentation of claim is required in 5 regard to matters claimed in proceedings against the decedent which were pending at the time 6 of his death. 7 (3) If a claim is presented under subsection (1), no proceeding thereon may be 8 commenced more than 60 days after the personal representative has mailed a notice of 9 disallowance; but, in the case of a claim that is not presently due or which is contingent or 10 unliquidated, the personal representative may consent to an extension of the 60-day period, 11 or to avoid injustice the Court, on petition, may order an extension of the 60-day period, but 12 in no event shall the extension run beyond the applicable statute of limitations. 13 §3-805. Classification of Claims. 14 (a) If the applicable assets of the estate are insufficient to pay all claims in full, 15 the personal representative shall make payment in the following order: 16 (1) costs and expenses of administration; 17 (2) reasonable funeral expenses; 18 (3) debts and taxes with preference under federal law; 19 (4) reasonable and necessary medical and hospital expenses of the last 20 illness of the decedent, including compensation of persons attending him; 21 (5) debts and taxes with preference under other laws of the Virgin Islands;
    • 194 1 (6) all other claims. 2 (b) No preference may be given in the payment of any claim over any other claim 3 of the same class, and a claim due and payable is not be entitled to a preference over claims 4 not due. 5 §3-806. Allowance of Claims. 6 (a) As to claims presented in the manner described in Section 3-804 within the 7 time limit prescribed in section 3-803, the personal representative may mail a notice to any 8 claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, 9 the personal representative changes his decision concerning the claim, the personal 10 representative shall notify the claimant. The personal representative may not change a 11 disallowance of a claim after the time for the claimant to file a petition for allowance or to 12 commence a proceeding on the claim has run and the claim has been barred. Every claim 13 that is disallowed in whole or in part by the personal representative is barred so far as not 14 allowed unless the claimant files a petition for allowance in the Court or commences a 15 proceeding against the personal representative not later than 60 days after the mailing of the 16 notice of disallowance or partial allowance if the notice warns the claimant of the impending 17 bar. Failure of the personal representative to mail notice to a claimant of action on his claim 18 for 60 days after the time for original presentation of the claim has expired has the effect of a 19 notice of allowance. 20 (b) After allowing or disallowing a claim the personal representative may change 21 the allowance or disallowance as hereafter provided. The personal representative may prior 22 to payment change the allowance to a disallowance in whole or in part, but not after 23 allowance by a court order or judgment or an order directing payment of the claim. He shall 24 notify the claimant of the change to disallowance, and the disallowed claim is then subject to
    • 195 1 bar as provided in subsection (a). The personal representative may change a disallowance to 2 an allowance, in whole or in part, until it is barred under subsection (a); after it is barred, it 3 may be allowed and paid only if the estate is solvent and all successors whose interests would 4 be affected consent. 5 (c) Upon the petition of the personal representative or of a claimant in a 6 proceeding for the purpose, the court may allow in whole or in part any claim or claims 7 presented to the personal representative or filed with the Clerk of Court in due time and not 8 barred by subsection (a) of this section. Notice in this proceeding must be given to the 9 claimant, the personal representative and those other persons interested in the estate as the 10 court may direct by order entered at the time the proceeding is commenced. 11 (d) A judgment in a proceeding in another court against a personal representative 12 to enforce a claim against a decedent's estate is an allowance of the claim. 13 (e) Unless otherwise provided in any judgment in another court entered against 14 the personal representative, allowed claims bear interest at the legal rate for the period 15 commencing 60 days after the time for original presentation of the claim has expired unless 16 based on a contract making a provision for interest, in which case they bear interest in 17 accordance with that provision. 18 §3-807. Payment of Claims. 19 (a) Upon the expiration of the earlier of the time limitations provided in section 20 3-803 for the presentation of claims, the personal representative shall proceed to pay the 21 claims allowed against the estate in the order of priority prescribed, after making provision 22 for homestead, family and support allowances, for claims already presented that have not yet 23 been allowed or whose allowance has been appealed, and for unbarred claims that may yet be 24 presented, including costs and expenses of administration. By petition to the court in a
    • 196 1 proceeding for the purpose, or by appropriate motion if the administration is supervised, a 2 claimant whose claim has been allowed but not paid may secure an order directing the 3 personal representative to pay the claim to the extent funds of the estate are available to pay 4 it. 5 (b) The personal representative at any time may pay any just claim that has not 6 been barred, with or without formal presentation, but is personally liable to any other 7 claimant whose claim is allowed and who is injured by its payment if: 8 (1) payment was made before the expiration of the time limit 9 stated in subsection (a) and the personal representative failed to require the 10 payee to give adequate security for the refund of any of the payment necessary 11 to pay other claimants; or 12 (2) payment was made, due to negligence or willful fault of the 13 personal representative, in such manner as to deprive the injured claimant of 14 priority. 15 §3-808. Individual Liability of Personal Representative. 16 (a) Unless otherwise provided in the contract, a personal representative is not 17 individually liable on a contract properly entered into in his fiduciary capacity in the course 18 of administration of the estate unless he fails to reveal his representative capacity and identify 19 the estate in the contract. 20 (b) A personal representative is individually liable for obligations arising from 21 ownership or control of the estate or for torts committed in the course of administration of the 22 estate only if he is personally at fault. 23 (c) Claims based on contracts entered into by a personal representative in his 24 fiduciary capacity, on obligations arising from ownership or control of the estate or on torts
    • 197 1 committed in the course of estate administration may be asserted against the estate by 2 proceeding against the personal representative in his fiduciary capacity, whether or not the 3 personal representative is individually liable therefor. 4 (d) Issues of liability as between the estate and the personal representative 5 individually may be determined in a proceeding for accounting, surcharge or indemnification 6 or other appropriate proceeding. 7 §3-809. Secured Claims. 8 Payment of a secured claim is upon the basis of the amount allowed if the creditor 9 surrenders his security; otherwise payment is upon the basis of one of the following: 10 (1) if the creditor exhausts his security before receiving payment, unless 11 precluded by other law, upon the amount of the claim allowed less the fair value of 12 the security; or 13 (2) if the creditor does not have the right to exhaust his security or has not 14 done so, upon the amount of the claim allowed less the value of the security 15 determined by converting it into money according to the terms of the agreement 16 pursuant to which the security was delivered to the creditor, or by the creditor and 17 personal representative by agreement, arbitration, compromise or litigation. 18 §3-810. Claims Not Due and Contingent or Unliquidated Claims. 19 (a) If a claim that will become due at a future time or a contingent or unliquidated 20 claim becomes due or certain before the distribution of the estate, and if the claim has been 21 allowed or established by a proceeding, it is paid in the same manner as presently due and 22 absolute claims of the same class.
    • 198 1 (b) In other cases the personal representative or, on petition of the personal 2 representative or the claimant in a special proceeding for the purpose, the Court may provide 3 for payment as follows: 4 (1) if the claimant consents, the claimant may be paid the present or 5 agreed value of the claim, taking any uncertainty into account; 6 (2) arrangement for future payment, or possible payment, on the 7 happening of the contingency or on liquidation may be made by creating a trust, 8 giving a mortgage, obtaining a bond or security from a distributee, or otherwise. 9 §3-811. Counterclaims. 10 In allowing a claim the personal representative may deduct any counterclaim the 11 estate has against the claimant. In determining a claim against an estate a Court shall reduce 12 the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the 13 claim, render a judgment against the claimant in the amount of the excess. A counterclaim, 14 liquidated or unliquidated, may arise from a transaction other than that upon which the claim 15 is based. A counterclaim may give rise to relief exceeding in amount or different in kind 16 from that sought in the claim. 17 §3-812. Execution and Levies Prohibited. 18 No execution may issue upon nor may any levy be made against any property of the 19 estate under any judgment against a decedent or a personal representative, but this section 20 may not be construed to prevent the enforcement of mortgages, pledges or liens upon real or 21 personal property in an appropriate proceeding. 22 23 24
    • 199 1 §3-813. Compromise of Claims. 2 When a claim against the estate has been presented in any manner, the personal 3 representative may, if it appears for the best interest of the estate, compromise the claim, 4 whether due or not due, absolute or contingent, liquidated or unliquidated. 5 §3-814. Encumbered Assets. 6 If any assets of the estate are encumbered by mortgage, pledge, lien, or other security 7 interest, the personal representative may pay the encumbrance or any part thereof, renew or 8 extend any obligation secured by the encumbrance or convey or transfer the assets to the 9 creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the 10 encumbrance has presented a claim, if it appears to be for the best interest of the estate. 11 Payment of an encumbrance does not increase the share of the distributee entitled to the 12 encumbered assets unless the distributee is entitled to exoneration. 13 §3-815. Administration in More Than One State; Duty of Personal Representative. 14 (a) All assets of estates being administered in the Virgin Islands are subject to all 15 claims, allowances and charges existing or established against the personal representative 16 wherever appointed. 17 (b) If the estate either in the Virgin Islands or as a whole is insufficient to cover 18 all family exemptions and allowances determined by the law of the decedent's domicile, prior 19 charges and claims, after satisfaction of the exemptions, allowances and charges, each 20 claimant whose claim has been allowed either in the Virgin islands or elsewhere in 21 administrations of which the personal representative is aware, is entitled to receive payment 22 of an equal proportion of his claim. If a preference or security in regard to a claim is allowed 23 in another jurisdiction but not in the Virgin Islands, the creditor so benefited is to receive
    • 200 1 dividends from local assets only upon the balance of his claim after deducting the amount of 2 the benefit. 3 (c) In case the family exemptions and allowances, prior charges and claims of the 4 entire estate exceed the total value of the portions of the estate being administered separately 5 and the Virgin Islands is not the state of the decedent's last domicile, the claims allowed in 6 the Virgin Islands must be paid their proportion if local assets are adequate for the purpose, 7 and the balance of local assets must be transferred to the domiciliary personal representative. 8 If local assets are not sufficient to pay all claims allowed in the Virgin Islands, the amount to 9 which they are entitled, local assets must be marshalled so that each claim allowed in this 10 Territory is paid its proportion as far as possible, after taking into account all dividends on 11 claims allowed in this Territory from assets in other jurisdictions. 12 §3-816. Final Distribution to Domiciliary Representative. 13 The estate of a non-resident decedent being administered by a personal representative 14 appointed in the Virgin Islands, if there is a personal representative of the decedent's 15 domicile willing to receive it, must be distributed to the domiciliary personal representative 16 for the benefit of the successors of the decedent unless (1) by virtue of the decedent's will, if 17 any, and applicable choice of law rules, the successors are identified pursuant to the local law 18 of the Virgin Islands without reference to the local law of the decedent's domicile; (2) the 19 personal representative of this Territory, after reasonable inquiry, is unaware of the existence 20 or identity of a domiciliary personal representative; or (3) the court orders otherwise in a 21 proceeding for a closing order under section 3-1001 or incident to the closing of a supervised 22 administration. In other cases, distribution of the estate of a decedent is made in accordance 23 with the other Parts of this Article.
    • 201 1 PART 9 2 SPECIAL PROVISIONS RELATING TO DISTRIBUTION 3 §3-901. Successors' Rights if No Administration. 4 In the absence of administration, the heirs and devisees are entitled to the estate in 5 accordance with the terms of a probated will or the laws of intestate succession. Devisees 6 may establish title by the probated will to devised property. Persons entitled to property by 7 homestead allowance, exemption or intestacy may establish title thereto by proof of the 8 decedent's ownership, his death, and their relationship to the decedent. Successors take 9 subject to all charges incident to administration, including the claims of creditors and 10 allowances of surviving spouse and dependent children, and subject to the rights of others 11 resulting from abatement, retainer, advancement, and ademption. 12 §3-902. Distribution; Order in Which Assets Appropriated; Abatement. 13 (a) Except as provided in subsection (b) and except as provided in connection 14 with the share of the surviving spouse who elects to take an elective share, shares of 15 distributees abate, without any preference or priority as between real and personal property, 16 in the following order: 17 (1) property not disposed of by the will; 18 (2) residuary devises; 19 (3) general devises; 20 (4) specific devises. 21 For purposes of abatement, a general devise charged on any specific property or fund 22 is a specific devise to the extent of the value of the property on which it is charged, and upon 23 the failure or insufficiency of the property on which it is charged, a general devise to the 24 extent of the failure or insufficiency. Abatement within each classification is in proportion to
    • 202 1 the amounts of property each of the beneficiaries would have received if full distribution of 2 the property had been made in accordance with the terms of the will. 3 (b) If the will expresses an order of abatement, or if the testamentary plan or the 4 express or implied purpose of the devise would be defeated by the order of abatement stated 5 in subsection (a), the shares of the distributees abate as may be found necessary to give effect 6 to the intention of the testator. 7 (c) If the subject of a preferred devise is sold or used incident to administration, 8 abatement is achieved by appropriate adjustments in, or contribution from, other interests in 9 the remaining assets. 10 §3-903. Right of Retainer. 11 The amount of a non-contingent indebtedness of a successor to the estate if due, or its 12 present value if not due, is offset against the successor's interest; but the successor has the 13 benefit of any defense that would be available to the successor in a direct proceeding for 14 recovery of the debt. 15 §3-904. Interest on General Pecuniary Devise. 16 General pecuniary devises bear interest at the legal rate beginning one year after the 17 first appointment of a personal representative until payment, unless a contrary intent is 18 indicated by the will. 19 §3-905. Penalty Clause for Contest. 20 A provision in a will purporting to penalize any interested person for contesting the 21 will or instituting other proceedings relating to the estate is unenforceable if probable cause 22 exists for instituting proceedings. 23
    • 203 1 §3-906. Distribution in Kind; Valuation; Method. 2 (a) Unless a contrary intention is indicated by the will, the distributable assets of a 3 decedent's estate must be distributed in kind to the extent possible through application of the 4 following provisions: 5 (1) A specific devisee is entitled to distribution of the thing 6 devised to him, and a spouse or child who has selected particular assets of an 7 estate as provided in section 2-403 receives the items selected. 8 (2) Any homestead or family allowance or devise of a stated sum 9 of money may be satisfied in kind if 10 (i) the person entitled to the payment has not demanded payment 11 in cash; 12 (ii) the property distributed in kind is valued at fair market value 13 as of the date of its distribution, and 14 (iii) no residuary devisee has requested that the asset in question 15 remain a part of the residue of the estate. 16 (3) For the purpose of valuation under paragraph (2) securities regularly 17 traded on recognized exchanges, if distributed in kind, are valued at the price for the 18 last sale of like securities traded on the business day prior to distribution, or if there 19 was no sale on that day, at the median between amounts bid and offered at the close 20 of that day. Assets consisting of sums owed the decedent or the estate by solvent 21 debtors as to which there is no known dispute or defense are valued at the sum due 22 with accrued interest or discounted to the date of distribution. For assets that do not 23 have readily ascertainable values, a valuation as of a date not more than 30 days prior 24 to the date of distribution, if otherwise reasonable, controls. For purposes of
    • 204 1 facilitating distribution, the personal representative may ascertain the value of the 2 assets as of the time of the proposed distribution in any reasonable way, including the 3 employment of qualified appraisers, even if the assets may have been previously 4 appraised. 5 (4) The residuary estate must be distributed in any equitable manner. 6 (b) After the probable charges against the estate are known, the personal 7 representative may mail or deliver a proposal for distribution to all persons who have a right 8 to object to the proposed distribution. The right of any distributee to object to the proposed 9 distribution on the basis of the kind or value of asset to be receivee, if not waived earlier in 10 writing, terminates if the distributee fails to object in writing received by the personal 11 representative within 30 days after mailing or delivery of the proposal. 12 § 3-907. Distribution in Kind; Evidence. 13 If distribution in kind is made, the personal representative shall execute an instrument 14 or deed of distribution assigning, transferring or releasing the assets to the distributee as 15 evidence of the distributee's title to the property. 16 §3-908. Distribution; Right or Title of Distributee. 17 Proof that a distributee has received an instrument or deed of distribution of assets in 18 kind, or payment in distribution, from a personal representative, is conclusive evidence that 19 the distributee has succeeded to the interest of the estate in the distributed assets, as against 20 all persons interested in the estate, except that the personal representative may recover the 21 assets or their value if the distribution was improper. 22 § 3-909. Improper Distribution; Liability of Distributee. 23 Unless the distribution or payment no longer can be questioned because of 24 adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid,
    • 205 1 or a claimant who was improperly paid, is liable to return the property improperly received 2 and its income since distribution if the distributee or claimant has the property. If the 3 distribute or claimant does not have the property, then the distribute or claimant is liable to 4 return the value as of the date of disposition of the property improperly received and its 5 income and gain that the distribute or claimant received. 6 §3-910. Purchasers from Distributees Protected. 7 If property distributed in kind or a security interest therein is acquired for value by a 8 purchaser from or lender to a distributee who has received an instrument or deed of 9 distribution from the personal representative, or is so acquired by a purchaser from or lender 10 to a transferee from such distributee, the purchaser or lender takes title free of rights of any 11 interested person in the estate and incurs no personal liability to the estate, or to any 12 interested person, whether or not the distribution was proper or supported by court order or 13 the authority of the personal representative was terminated before execution of the instrument 14 or deed. This section protects a purchaser from or lender to a distributee who, as personal 15 representative, has executed a deed of distribution to himself, as well as a purchaser from or 16 lender to any other distributee or his transferee. To be protected under this provision, a 17 purchaser or lender need not inquire whether a personal representative acted properly in 18 making the distribution in kind, even if the personal representative and the distributee are the 19 same person, or whether the authority of the personal representative had terminated before 20 the distribution. Any recorded instrument described in this section on which a state 21 documentary fee is noted pursuant to 28 V.I.C., §133 is prima facie evidence that such 22 transfer was made for value. 23 24
    • 206 1 §3-911. Partition for Purpose of Distribution. 2 When two or more heirs or devisees are entitled to distribution of undivided interests 3 in any real or personal property of the estate, the personal representative or one or more of 4 the heirs or devisees may petition the Court prior to the formal or informal closing of the 5 estate, to make partition. After notice to the interested heirs or devisees, the Court shall 6 partition the property in the same manner as provided by the law for civil actions of partition. 7 The Court may direct the personal representative to sell any property which cannot be 8 partitioned without prejudice to the owners and which cannot conveniently be allotted to any 9 one party. 10 § 3-912. Private Agreements Among Successors to Decedent Binding on Personal 11 Representative. 12 Subject to the rights of creditors and taxing authorities, competent successors may 13 agree among themselves to alter the interests, shares, or amounts to which they are entitled 14 under the will of the decedent, or under the laws of intestacy, in any way that they provide in 15 a written contract executed by all who are affected by its provisions. The personal 16 representative shall abide by the terms of the agreement subject to his obligation to 17 administer the estate for the benefit of creditors, to pay all taxes and costs of administration, 18 and to carry out the responsibilities of his office for the benefit of any successors of the 19 decedent who are not parties. Personal representatives of decedents' estates are not required 20 to see to the performance of trusts if the trustee thereof is another person who is willing to 21 accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes 22 of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts. 23 24
    • 207 1 § 3-913. Distributions to Trustee. 2 (a) Before distributing to a trustee, the personal representative may require that 3 the trust be registered if the state in which it is to be administered provides for registration 4 and that the trustee inform the beneficiaries as provided in section 7-303. 5 (b) If the trust instrument does not excuse the trustee from giving bond, the 6 personal representative may petition the appropriate Court to require that the trustee post 7 bond if he apprehends that distribution might jeopardize the interests of persons who are not 8 able to protect themselves, and he may withhold distribution until the Court has acted. 9 (c) No inference of negligence on the part of the personal representative may be 10 drawn from his failure to exercise the authority conferred by subsections (a) and (b). 11 §3-914. Disposition of Unclaimed Assets. 12 (a) If an heir, devisee or claimant cannot be found, the personal representative 13 shall distribute the share of the missing person to his conservator, if any, otherwise to the 14 Office of the Lieutenant Governor. 15 (b) The money received by Office of the Lieutenant Governor must be paid to the 16 person entitled on proof of his right thereto or, if the Lieutenant Governor refuses or fails to 17 pay, the person may petition the court which appointed the personal representative, 18 whereupon the Court upon notice to the Lieutenant Governor may determine the person 19 entitled to the money and order the Lieutenant Governor to pay it to him. No interest is 20 allowed thereon and the heir, devisee or claimant shall pay all costs and expenses incident to 21 the proceeding. If no petition is made to the Court within 10 years after payment to the 22 Lieutenant Governor the right of recovery is barred. 23 24
    • 208 1 §3-915. Distribution to Person Under Disability. 2 (a) A personal representative may discharge his obligation to distribute to any 3 person under legal disability by distributing in a manner expressly provided in the will. 4 (b) Unless contrary to an express provision in the will, the personal representative 5 may discharge his obligation to distribute to a minor or person under other disability as 6 authorized by Section 5-104 or any other statute. If the personal representative knows that a 7 conservator has been appointed or that a proceeding for appointment of a conservator is 8 pending, the personal representative is authorized to distribute only to the conservator. 9 (c) If the heir or devisee is under disability other than minority, the personal 10 representative is authorized to distribute to: 11 (1) an attorney in fact who has authority under a power of attorney to 12 receive property for that person; or 13 (2) the spouse, parent or other close relative with whom the person under 14 disability resides if the distribution is of amounts not exceeding $10,000 a year, or 15 property not exceeding $10,000 in value, unless the court authorizes a larger amount 16 or greater value. 17 Persons receiving money or property for the disabled person are obligated to apply 18 the money or property to the support of that person, but may not pay themselves except by 19 way of reimbursement for out-of-pocket expenses for goods and services necessary for the 20 support of the disabled person. Excess sums must be preserved for future support of the 21 disabled person. The personal representative is not responsible for the proper application of 22 money or property distributed pursuant to this subsection. 23 24
    • 209 1 §3-916. [RESERVED] 2 PART 9A 3 APPORTIONMENT OF ESTATE TAXES 4 §3-9A-101. Short Title. 5 This Part may be cited as the Uniform Estate Tax Apportionment Act. 6 Section 3-9A-102. Definitions. 7 In this Part: 8 (1) “Apportionable estate” means the value of the gross estate as finally 9 determined for purposes of the estate tax to be apportioned reduced by: 10 (A) any claim or expense allowable as a deduction for purposes of the tax; 11 (B) the value of any interest in property that, for purposes of the tax, 12 qualifies for a marital or charitable deduction or otherwise is deductible or is exempt; 13 and 14 (C) any amount added to the decedent’s gross estate because of a gift tax 15 on transfers made before death. 16 (2) "Estate tax" means a federal, state, or foreign tax imposed because of the 17 death of an individual and interest and penalties associated with the tax. The term does not 18 include an inheritance tax, income tax, or generation-skipping transfer tax other than a 19 generation-skipping transfer tax incurred on a direct skip taking effect at death. 20 (3) "Gross estate" means, with respect to an estate tax, all interests in property 21 subject to the tax. 22 (4) "Person" means an individual, corporation, business trust, estate, trust, 23 partnership, limited liability company, association, joint venture, public corporation,
    • 210 1 government, governmental subdivision, agency, or instrumentality, or any other legal or 2 commercial entity. 3 (5) “Ratable” means apportioned or allocated pro rata according to the relative 4 values of interests to which the term is to be applied. “Ratably” has a corresponding 5 meaning. 6 (6) “Time-limited interest” means an interest in property which terminates on a 7 lapse of time or on the occurrence or nonoccurrence of an event or which is subject to the 8 exercise of discretion that could transfer a beneficial interest to another person. The term 9 does not include a cotenancy unless the cotenancy itself is a time-limited interest. 10 (7) "Value" means, with respect to an interest in property, fair market value as 11 finally determined for purposes of the estate tax that is to be apportioned, reduced by any 12 outstanding debt secured by the interest without reduction for taxes paid or required to be 13 paid or for any special valuation adjustment. 14 §3-9A-103. Apportionment By Will or Other Dispositive Instrument 15 (a) Except as otherwise provided in subsection (c), the following rules apply: 16 (1) To the extent that a provision of a decedent’s will expressly and 17 unambiguously directs the apportionment of an estate tax, the tax must be 18 apportioned accordingly. 19 (2) Any portion of an estate tax not apportioned pursuant to paragraph (1) 20 must be apportioned in accordance with any provision of a revocable trust of which 21 the decedent was the settlor which expressly and unambiguously directs the 22 apportionment of an estate tax. If conflicting apportionment provisions appear in two 23 or more revocable trust instruments, the provision in the most recently dated 24 instrument prevails. For purposes of this paragraph:
    • 211 1 (A) a trust is revocable if it was revocable immediately after the 2 trust instrument was executed, even if the trust subsequently becomes 3 irrevocable; and 4 (B) the date of an amendment to a revocable trust instrument is the 5 date of the amended instrument only if the amendment contains an 6 apportionment provision. 7 (3) If any portion of an estate tax is not apportioned pursuant to paragraph 8 (1) or (2), and a provision in any other dispositive instrument expressly and 9 unambiguously directs that any interest in the property disposed of by the instrument 10 is or is not to be applied to the payment of the estate tax attributable to the interest 11 disposed of by the instrument, the provision controls the apportionment of the tax to 12 that interest. 13 (b) Subject to subsection (c), and unless the decedent expressly and 14 unambiguously directs the contrary, the following rules apply: 15 (1) If an apportionment provision directs that a person receiving an 16 interest in property under an instrument is to be exonerated from the responsibility to 17 pay an estate tax that would otherwise be apportioned to the interest, 18 (A) the tax attributable to the exonerated interest must be 19 apportioned among the other persons receiving interests passing under the 20 instrument, or 21 (B) if the values of the other interests are less than the tax 22 attributable to the exonerated interest, the deficiency must be apportioned 23 ratably among the other persons receiving interests in the apportionable estate 24 that are not exonerated from apportionment of the tax.
    • 212 1 (2) If an apportionment provision directs that an estate tax is to be 2 apportioned to an interest in property a portion of which qualifies for a marital or 3 charitable deduction, the estate tax must first be apportioned ratably among the 4 holders of the portion that does not qualify for a marital or charitable deduction and 5 then apportioned ratably among the holders of the deductible portion to the extent that 6 the value of the nondeductible portion is insufficient. 7 (3) Except as otherwise provided in paragraph (4), if an apportionment 8 provision directs that an estate tax be apportioned to property in which one or more 9 time-limited interests exist, other than interests in specified property under Section 3- 10 9A-107, the tax must be apportioned to the principal of that property, regardless of 11 the deductibility of some of the interests in that property. 12 (4) If an apportionment provision directs that an estate tax is to be 13 apportioned to the holders of interests in property in which one or more time-limited 14 interests exist and a charity has an interest that otherwise qualifies for an estate tax 15 charitable deduction, the tax must first be apportioned, to the extent feasible, to 16 interests in property that have not been distributed to the persons entitled to receive 17 the interests. 18 (c) A provision that apportions an estate tax is ineffective to the extent that it 19 increases the tax apportioned to a person having an interest in the gross estate over which the 20 decedent had no power to transfer immediately before the decedent executed the instrument 21 in which the apportionment direction was made. For purposes of this subsection, a 22 testamentary power of appointment is a power to transfer the property that is subject to the 23 power. 24
    • 213 1 § 3-9A-104. Statutory Apportionment Of Estate Taxes. 2 To the extent that apportionment of an estate tax is not controlled by an instrument 3 described in Section 3-9A-103 and except as otherwise provided in Sections 3-9A-106 and 3- 4 9A-107, the following rules apply: 5 (1) Subject to paragraphs (2), (3), and (4), the estate tax is apportioned ratably to 6 each person that has an interest in the apportionable estate. 7 (2) A generation-skipping transfer tax incurred on a direct skip taking effect at 8 death is charged to the person to whom the interest in property is transferred. 9 (3) If property is included in the decedent’s gross estate because of Section 2044 10 of the Internal Revenue Code of 1986 or any similar estate tax provision, the difference 11 between the total estate tax for which the decedent’s estate is liable and the amount of estate 12 tax for which the decedent’s estate would have been liable if the property had not been 13 included in the decedent’s gross estate is apportioned ratably among the holders of interests 14 in the property. The balance of the tax, if any, is apportioned ratably to each other person 15 having an interest in the apportionable estate. 16 (4) Except as otherwise provided in Section 3-9A-103(b)(4) and except as to 17 property to which Section 3-9A-107 applies, an estate tax apportioned to persons holding 18 interests in property subject to a time-limited interest must be apportioned, without further 19 apportionment, to the principal of that property. 20 §3-9A-105. Credits And Deferrals. 21 Except as otherwise provided in Sections 3-9A-106 and 3-9A-107, the following rules 22 apply to credits and deferrals of estate taxes: 23 (1) A credit resulting from the payment of gift taxes or from estate taxes paid on 24 property previously taxed inures ratably to the benefit of all persons to which the estate tax is
    • 214 1 apportioned. 2 (2) A credit for state or foreign estate taxes inures ratably to the benefit of all 3 persons to which the estate tax is apportioned, except that the amount of a credit for a state or 4 foreign tax paid by a beneficiary of the property on which the state or foreign tax was 5 imposed, directly or by a charge against the property, inures to the benefit of the beneficiary. 6 (3) If payment of a portion of an estate tax is deferred because of the inclusion in 7 the gross estate of a particular interest in property, the benefit of the deferral inures ratably to 8 the persons to which the estate tax attributable to the interest is apportioned. The burden of 9 any interest charges incurred on a deferral of taxes and the benefit of any tax deduction 10 associated with the accrual or payment of the interest charge is allocated ratably among the 11 persons receiving an interest in the property. 12 §3-9A-106. Insulated Property: Advancement of Tax. 13 (a) In this section: 14 (1) “Advanced fraction” means a fraction that has as its numerator the 15 amount of the advanced tax and as its denominator the value of the interests in 16 insulated property to which that tax is attributable. 17 (2) “Advanced tax” means the aggregate amount of estate tax attributable 18 to interests in insulated property which is required to be advanced by uninsulated 19 holders under subsection (c). 20 (3) “Insulated property” means property subject to a time-limited interest 21 which is included in the apportionable estate but is unavailable for payment of an 22 estate tax because of impossibility or impracticability. 23 (4) “Uninsulated holder” means a person who has an interest in 24 uninsulated property.
    • 215 1 (5) “Uninsulated property” means property included in the apportionable 2 estate other than insulated property. 3 (b) If an estate tax is to be advanced pursuant to subsection (c) by persons holding 4 interests in uninsulated property subject to a time-limited interest other than property to 5 which Section 3-9A-107 applies, the tax must be advanced, without further apportionment, 6 from the principal of the uninsulated property. 7 (c) Subject to Section 3-9A-109(b) and (d), an estate tax attributable to interests 8 in insulated property must be advanced ratably by uninsulated holders. If the value of an 9 interest in uninsulated property is less than the amount of estate taxes otherwise required to 10 be advanced by the holder of that interest, the deficiency must be advanced ratably by the 11 persons holding interests in properties that are excluded from the apportionable estate under 12 Section 3-9A-102(1) (B) as if those interests were in uninsulated property. 13 (d) A court having jurisdiction to determine the apportionment of an estate tax 14 may require a beneficiary of an interest in insulated property to pay all or part of the estate 15 tax otherwise apportioned to the interest if the court finds that it would be substantially more 16 equitable for that beneficiary to bear the tax liability personally than for that part of the tax to 17 be advanced by uninsulated holders. 18 (e) When a distribution of insulated property is made, each uninsulated holder 19 may recover from the distributee a ratable portion of the advanced fraction of the property 20 distributed. To the extent that undistributed insulated property ceases to be insulated, each 21 uninsulated holder may recover from the property a ratable portion of the advanced fraction 22 of the total undistributed property. 23 (f) Upon a distribution of insulated property for which, pursuant to subsection 24 (d), the distributee becomes obligated to make a payment to uninsulated holders, a court may
    • 216 1 award an uninsulated holder a recordable lien on the distributee’s property to secure the 2 distributee’s obligation to that uninsulated holder. 3 §3-9A-107. Apportionment And Recapture Of Special Elective Benefits 4 (a) In this section: 5 (1) “Special elective benefit” means a reduction in an estate tax obtained 6 by an election for: 7 (A) a reduced valuation of specified property that is included in the 8 gross estate; 9 (B) a deduction from the gross estate, other than a marital or 10 charitable deduction, allowed for specified property; or 11 (C) an exclusion from the gross estate of specified property. 12 (2) “Specified property” means property for which an election has been 13 made for a special elective benefit. 14 (b) If an election is made for one or more special elective benefits, an initial 15 apportionment of a hypothetical estate tax must be computed as if no election for any of 16 those benefits had been made. The aggregate reduction in estate tax resulting from all 17 elections made must be allocated among holders of interests in the specified property in the 18 proportion that the amount of deduction, reduced valuation, or exclusion attributable to each 19 holder’s interest bears to the aggregate amount of deductions, reduced valuations, and 20 exclusions obtained by the decedent’s estate from the elections. If the estate tax initially 21 apportioned to the holder of an interest in specified property is reduced to zero, any excess 22 amount of reduction reduces ratably the estate tax apportioned to other persons that receive 23 interests in the apportionable estate. 24 (c) An additional estate tax imposed to recapture all or part of a special elective
    • 217 1 benefit must be charged to the persons that are liable for the additional tax under the law 2 providing for the recapture. 3 §3-9A-108. Securing Payment Of Estate Tax From Property In Possession Of Fiduciary 4 (a) A fiduciary may defer a distribution of property until the fiduciary is satisfied 5 that adequate provision for payment of the estate tax has been made. 6 (b) A fiduciary may withhold from a distributee an amount equal to the amount of 7 estate tax apportioned to an interest of the distributee. 8 (c) As a condition to a distribution, a fiduciary may require the distributee to 9 provide a bond or other security for the portion of the estate tax apportioned to the 10 distributee. 11 §3-9A-109. Collection Of Estate Tax By Fiduciary 12 (a) A fiduciary responsible for payment of an estate tax may collect from any 13 person the tax apportioned to and the tax required to be advanced by the person. 14 (b) Except as otherwise provided in Section 3-9A-106, any estate tax due from a 15 person that cannot be collected from the person may be collected by the fiduciary from other 16 persons in the following order of priority: 17 (1) any person having an interest in the apportionable estate which is not 18 exonerated from the tax; 19 (2) any other person having an interest in the apportionable estate; 20 (3) any person having an interest in the gross estate. 21 (c) A domiciliary fiduciary may recover from an ancillary personal representative 22 the estate tax apportioned to the property controlled by the ancillary personal representative. 23 (d) The total tax collected from a person pursuant to this Part may not exceed the 24 value of the person’s interest.
    • 218 1 §3-9A-110. Right Of Reimbursement 2 (a) A person required under Section 3-9A-109 to pay an estate tax greater than 3 the amount due from the person under Section 3-9A-103 or 3-9A-104 has a right to 4 reimbursement from another person to the extent that the other person has not paid the tax 5 required by Section 3-9A-103 or 3-9A-104 and a right to reimbursement ratably from other 6 persons to the extent that each has not contributed a portion of the amount collected under 7 Section 3-9A-109(b). 8 (b) A fiduciary may enforce the right of reimbursement under subsection (a) on 9 behalf of the person that is entitled to the reimbursement and shall take reasonable steps to do 10 so if requested by the person. 11 § 3-9A-111. Action To Determine Or Enforce Part. 12 A fiduciary, transferee, or beneficiary of the gross estate may maintain an action for 13 declaratory judgment to have a court determine and enforce this part. 14 § 3-9A-112. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying 15 and construing this part , consideration must be given to the need to promote uniformity of 16 the law with respect to its subject matter among states that enact it. 17 §3-9A-113. SEVERABILITY. If any provision of this part or the application thereof to any 18 person or circumstance is held invalid, the invalidity does not affect other provisions or 19 applications of this part which can be given effect without the invalid provision or 20 application, and to this end the provisions of this part are severable. 21 § 3-9A-114. Delayed Application 22 (a) Sections 3-9A-103 through 3-9A-107 do not apply to the estate of a decedent 23 who dies on or within three years after the effective date of this part, nor to the estate of a
    • 219 1 decedent who dies more than three years after the effective date of this part if the decedent 2 continuously lacked testamentary capacity from the expiration of the three-year period until 3 the date of death. 4 (b) For the estate of a decedent who dies on or after the effective date of this part 5 to which sections 3-9A-103 through 3-9A-107 do not apply, estate taxes must be apportioned 6 pursuant to the law in effect immediately before the effective date of this Part. 7 PART 10 8 CLOSING ESTATES 9 §3-1001. Formal Proceedings Terminating Administration; Testate or Intestate; Order 10 of General Protection. 11 (a) A personal representative or any interested person may petition for an order of 12 complete settlement of the estate. The personal representative may petition at any time, and 13 any other interested person may petition after one year from the appointment of the original 14 personal representative; except that no petition under this section may be entertained until the 15 time for presenting claims that arose prior to the death of the decedent has expired. The 16 petition may request the Court to determine testacy, if not previously determined, to consider 17 the final account or compel or approve an accounting and distribution, to construe any will or 18 determine heirs and adjudicate the final settlement and distribution of the estate. After notice 19 to all interested persons and hearing the Court may enter an order or orders, on appropriate 20 conditions, determining the persons entitled to distribution of the estate, and, as 21 circumstances require, approving settlement and directing or approving distribution of the 22 estate and discharging the personal representative from further claim or demand of any 23 interested person.
    • 220 1 (b) If one or more heirs or devisees were omitted as parties in, or were not given 2 notice of, a previous formal testacy proceeding, the Court, on proper petition for an order of 3 complete settlement of the estate under this section, and after notice to the omitted or 4 unnotified persons and other interested parties determined to be interested on the assumption 5 that the previous order concerning testacy is conclusive as to those given notice of the earlier 6 proceeding, may determine testacy as it affects the omitted persons and confirm or alter the 7 previous order of testacy as it affects all interested persons as appropriate in the light of the 8 new proofs. In the absence of objection by an omitted or unnotified person, evidence 9 received in the original testacy proceeding shall constitute prima facie proof of due execution 10 of any will previously admitted to probate, or of the fact that the decedent left no valid will if 11 the prior proceedings determined this fact. 12 §3-1002. Formal Proceedings Terminating Testate Administration; Order Construing 13 Will Without Adjudicating Testacy. 14 A personal representative administering an estate under an informally probated will 15 or any devisee under an informally probated will may petition for an order of settlement of 16 the estate which will not adjudicate the testacy status of the decedent. The personal 17 representative may petition at any time, and a devisee may petition after one year, from the 18 appointment of the original personal representative, except that no petition under this section 19 may be entertained until the time for presenting claims that arose prior to the death of the 20 decedent has expired. The petition may request the Court to consider the final account or 21 compel or approve an accounting and distribution, to construe the will and adjudicate final 22 settlement and distribution of the estate. After notice to all devisees and the personal 23 representative and hearing, the Court may enter an order or orders, on appropriate conditions, 24 determining the persons entitled to distribution of the estate under the will, and, as
    • 221 1 circumstances require, approving settlement and directing or approving distribution of the 2 estate and discharging the personal representative from further claim or demand of any 3 devisee who is a party to the proceeding and those the personal representative represents. If 4 it appears that a part of the estate is intestate, the proceedings must be dismissed or 5 amendments made to meet the provisions of section 3-1001. 6 §3-1003. Closing Estates; By Sworn Statement of Personal Representative. 7 (a) Unless prohibited by order of the Court and except for estates being 8 administered in supervised administration proceedings, a personal representative may close 9 an estate by filing with the court no earlier than six months after the date of original 10 appointment of a general personal representative for the estate, a verified statement stating 11 that the personal representatives or a previous personal representative, has: 12 (1) determined that the time limited for presentation of creditors' claims 13 has expired. 14 (2) fully administered the estate of the decedent by making payment, 15 settlement, or other disposition of all claims that were presented, expenses of 16 administration and estate, inheritance and other death taxes, except as specified in the 17 statement, and that the assets of the estate have been distributed to the persons 18 entitled. If any claims remain undischarged, the statement must state whether the 19 personal representative has distributed the estate subject to possible liability with the 20 agreement of the distributees or state in detail other arrangements that have been 21 made to accommodate outstanding liabilities; and 22 (3) sent a copy of the statement to all distributees of the estate and to all 23 creditors or other claimants of whom the personal representative is aware whose
    • 222 1 claims are neither paid nor barred and has furnished a full account in writing of the 2 personal representative's administration to the distributees whose interests are 3 affected thereby. 4 (b) If no proceedings involving the personal representative are pending in the 5 Court one year after the closing statement is filed, the appointment of the personal 6 representative terminates. 7 §3-1004. Liability of Distributees to Claimants. 8 After assets of an estate have been distributed and subject to section 3-1006, an 9 undischarged claim not barred may be prosecuted in a proceeding against one or more 10 distributees. No distributee is liable to claimants for amounts received as exempt property, 11 homestead or family allowances, or for amounts in excess of the value of his distribution as 12 of the time of distribution. As between distributees, each bears the cost of satisfaction of 13 unbarred claims as if the claim had been satisfied in the course of administration. Any 14 distributee who fails to notify other distributees of the demand made upon him by the 15 claimant in sufficient time to permit them to join in any proceeding in which the claim was 16 asserted against him loses the right of contribution against other distributees. 17 §3-1005. Limitations on Proceedings Against Personal Representative. 18 Unless previously barred by adjudication and except as provided in the closing 19 statement, the rights of successors and of creditors whose claims have not otherwise been 20 barred against the personal representative for breach of fiduciary duty are barred unless a 21 proceeding to assert such rights and claims is commenced within 6 months after the filing of 22 the closing statement. The rights thus barred do not include rights to recover from a personal
    • 223 1 representative for fraud, misrepresentation, or inadequate disclosure related to the settlement 2 of the decedent's estate. 3 §3-1006. Limitations on Actions and Proceedings Against Distributees. 4 Unless previously adjudicated in a formal testacy proceeding or in a proceeding 5 settling the accounts of a personal representative or otherwise barred, the claim of a claimant 6 to recover from a distributee who is liable to pay the claim, and the right of an heir or 7 devisee, or of a successor personal representative acting in their behalf, to recover property 8 improperly distributed or its value from any distributee is forever barred at the later of three 9 years after the decedent's death or one year after the time of its distribution thereof, but all 10 claims of creditors of the decedent, are barred one year after the decedent's death. This 11 section does not bar an action to recover property or value received as a result of fraud. 12 §3-1007. Certificate Discharging Liens Securing Fiduciary Performance. 13 After his appointment has terminated, the personal representative, his sureties, or any 14 successor of either, upon the filing of a verified application showing, so far as is known by 15 the applicant, that no action concerning the estate is pending in any court, is entitled to 16 receive a certificate from the Registrar that the personal representative appears to have fully 17 administered the estate in question. The certificate evidences discharge of any lien on any 18 property given to secure the obligation of the personal representative in lieu of bond or any 19 surety, but does not preclude action against the personal representative or the surety. 20 §3-1008. Subsequent Administration. 21 If other property of the estate is discovered after an estate has been settled and the 22 personal representative discharged or after one year after a closing statement has been filed, 23 the Court upon petition of any interested person and upon notice as it directs may appoint the 24 same or a successor personal representative to administer the subsequently discovered estate.
    • 224 1 If a new appointment is made, unless the Court orders otherwise, the provisions of this Code 2 apply as appropriate; but no claim previously barred may be asserted in the subsequent 3 administration. 4 PART 11 5 COMPROMISE OF CONTROVERSIES 6 §3-1101. Effect of Approval of Agreements Involving Trusts, Inalienable Interests, or 7 Interests of Third Persons. 8 A compromise of any controversy as to admission to probate of any instrument 9 offered for formal probate as the will of a decedent, the construction, validity, or effect of 10 any governing instrument, the rights or interests in the estate of the decedent, of any 11 successor, or the administration of the estate, if approved in a formal proceeding in the court 12 for that purpose, is binding on all the parties thereto including those unborn, unascertained or 13 who could not be located. An approved compromise is binding even though it may affect a 14 trust or an inalienable interest. A compromise does not impair the rights of creditors or of 15 taxing authorities who are not parties to it. 16 §3-1102. Procedure for Securing Court Approval of Compromise. 17 The procedure for securing court approval of a compromise is as follows: 18 (1) The terms of the compromise must be set forth in an agreement in 19 writing which must be executed by all competent persons and parents acting for any 20 minor child having beneficial interests or having claims that will or may be affected 21 by the compromise. Execution is not required by any person whose identity cannot 22 be ascertained or whose whereabouts is unknown and cannot reasonably be 23 ascertained.
    • 225 1 (2) Any interested person, including the personal representative, if any, or 2 a trustee, then may submit the agreement to the Court for its approval and for 3 execution by the personal representative, the trustee of every affected testamentary 4 trust, and other fiduciaries and representatives. 5 (3) After notice to all interested persons or their representatives, including 6 the personal representative of any estate and all affected trustees of trusts, the Court, 7 if it finds that the contest or controversy is in good faith and that the effect of the 8 agreement upon the interests of persons represented by fiduciaries or other 9 representatives is just and reasonable, shall make an order approving the agreement 10 and directing all fiduciaries subject to its jurisdiction to execute the agreement. Minor 11 children represented only by their parents may be bound only if their parents join with 12 other competent persons in execution of the compromise. Upon the making of the 13 order and the execution of the agreement, all further disposition of the estate is in 14 accordance with the terms of the agreement. 15 PART 12 16 COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY 17 ADMINISTRATION PROCEDURE FOR SMALL ESTATES 18 § 3-1201. Collection of Personal Property by Affidavit. 19 (a) Thirty days after the death of a decedent, any person indebted to the decedent 20 or having possession of tangible personal property or an instrument evidencing a debt, 21 obligation, stock or chose in action belonging to the decedent shall make payment of the 22 indebtedness or deliver the tangible personal property or an instrument evidencing a debt, 23 obligation, stock or chose in action to a person claiming to be the successor of the decedent 24 upon being presented an affidavit made by or on behalf of the successor stating that:
    • 226 1 (1) the value of the entire estate, wherever located, less liens and 2 encumbrances, does not exceed $5,000; 3 (2) 30 days have elapsed since the death of the decedent; 4 (3) no application or petition for the appointment of a personal 5 representative is pending or has been granted in any jurisdiction; and 6 (4) the claiming successor is entitled to payment or delivery of the 7 property. 8 (b) A transfer agent of any security shall change the registered ownership on the 9 books of a corporation from the decedent to the successor or successors upon the presentation 10 of an affidavit as provided in subsection (a). 11 § 3-1202. Effect of Affidavit. 12 The person paying, delivering, transferring, or issuing personal property or the 13 evidence thereof pursuant to affidavit is discharged and released to the same extent as if the 14 person dealt with a personal representative of the decedent. The person is not required to see 15 to the application of the personal property or evidence thereof or to inquire into the truth of 16 any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, 17 deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or 18 its payment, delivery, transfer, or issuance compelled upon proof of their right in a 19 proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any 20 person to whom payment, delivery, transfer or issuance is made is answerable and 21 accountable therefor to any personal representative of the estate or to any other person having 22 a superior right. 23 24
    • 227 1 § 3-1203. Small Estates; Summary Administration Procedure. 2 If it appears from the inventory and appraisal that the value of the entire estate, less 3 liens and encumbrances, does not exceed homestead allowance, exempt property, family 4 allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable 5 and necessary medical and hospital expenses of the last illness of the decedent, the personal 6 representative, without giving notice to creditors, may immediately disburse and distribute 7 the estate to the persons entitled thereto and file a closing statement as provided in section 8 3-1204. 9 §3-1204. Small Estates; Closing by Sworn Statement of Personal Representative. 10 (a) Unless prohibited by order of the court and except for estates being 11 administered by supervised personal representatives, a personal representative may close an 12 estate administered under the summary procedures of section 3-1203 by filing with the Court, 13 at any time after disbursement and distribution of the estate, a verified statement stating that: 14 (1) to the best knowledge of the personal representative, the value of the 15 entire estate, less liens and encumbrances, did not exceed homestead allowance, 16 exempt property, family allowance, costs and expenses of administration, reasonable 17 funeral expenses, and reasonable, necessary medical and hospital expenses of the last 18 illness of the decedent; 19 (2) the personal representative has fully administered the estate by 20 disbursing and distributing it to the persons entitled thereto; and 21 (3) the personal representative has sent a copy of the closing statement to 22 all distributees of the estate and to all creditors or other claimants of whom he is 23 aware whose claims are neither paid nor barred and has furnished a full account in 24 writing of his administration to the distributees whose interests are affected.
    • 228 1 (b) If no actions or proceedings involving the personal representative are pending 2 in the Court one year after the closing statement is filed, the appointment of the personal 3 representative terminates. 4 (c) A closing statement filed under this section has the same effect as one filed 5 under section 3-1003. 6 ARTICLE IV 7 JUDGMENTS AND PERSONAL REPRESENTATIVE 8 PART 1 9 DEFINITIONS 10 §4-101. Definitions. 11 In this Article: 12 (1) "local administration" means administration by a personal representative 13 appointed in the Virgin Islands pursuant to appointment proceedings described in Article III. 14 (2) "local personal representative" includes any personal representative appointed 15 in the Virgin Islands pursuant to appointment proceedings described in Article III and 16 excludes foreign personal representatives who acquire the power of a local personal 17 representative pursuant to Section 4-205. 18 (3) "resident creditor" means a person domiciled in, or doing business in the 19 Virgin islands, who is, or could be, a claimant against an estate of a non-resident decedent. 20 PART 2 21 POWERS OF FOREIGN PERSONAL REPRESENTATIVES 22 §4-201. Payment of Debt and Delivery of Property to Domiciliary Foreign Personal 23 Representative Without Local Administration.
    • 229 1 At any time after the expiration of sixty days from the death of a nonresident 2 decedent, any person indebted to the estate of the nonresident decedent or having possession 3 or control of personal property, or of an instrument evidencing a debt, obligation, stock or 4 chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver 5 the personal property, or the instrument evidencing the debt, obligation, stock or chose in 6 action, to the domiciliary foreign personal representative of the nonresident decedent upon 7 being presented with proof of his appointment and an affidavit made by or on behalf of the 8 representative stating: 9 (1) the date of the death of the nonresident decedent, 10 (2) that no local administration, or application or petition therefor, is pending in 11 the Virgin Islands, 12 (3) that the domiciliary foreign personal representative is entitled to payment or 13 delivery. 14 §4-202. Payment or Delivery Discharges. 15 Payment or delivery made in good faith on the basis of the proof of authority and 16 affidavit releases the debtor or person having possession of the personal property to the same 17 extent as if payment or delivery had been made to a local personal representative. 18 §4-203. Resident Creditor Notice. 19 Payment or delivery under section 4-201 may not be made if a resident creditor of the 20 nonresident decedent has notified the debtor of the nonresident decedent or the person having 21 possession of the personal property belonging to the nonresident decedent that the debt 22 should not be paid nor the property delivered to the domiciliary foreign personal 23 representative.
    • 230 1 § 4-204. Proof of Authority Bond. 2 If no local administration or application or petition for local administration is pending 3 in the Virgin Islands, a domiciliary foreign personal representative may file with a court in 4 the Virgin Islands in the judicial division in which property belonging to the decedent is 5 located, authenticated copies of his appointment and of any official bond he has given. 6 §4-205. Powers. 7 A domiciliary foreign personal representative who has complied with section 4-204 8 may exercise as to assets in the Virgin Islands all powers of a local personal representative 9 and may maintain actions and proceedings in the Virgin Islands subject to any conditions 10 imposed upon nonresident parties generally. 11 §4-206. Power of Representatives in Transition. 12 The power of a domiciliary foreign personal representative under section 4-201 or 13 section 4-205 may be exercised only if there is no administration or application for 14 administration pending in the Virgin Islands. An application or petition for local 15 administration of the estate terminates the power of the foreign personal representative to act 16 under section 4-205, but the local court may allow the foreign personal representative to 17 exercise limited powers to preserve the estate. No person who, before receiving actual notice 18 of a pending local administration, has changed his position in reliance upon the powers of a 19 foreign personal representative may be prejudiced by reason of the application or petition for, 20 or grant of, local administration. The local personal representative is subject to all duties and 21 obligations which have accrued by virtue of the exercise of the powers by the foreign 22 personal representative and may be substituted for him in any action or proceedings in the 23 Virgin Islands. 24
    • 231 1 §4-207. Ancillary and Other Local Administrations; Provisions Governing. 2 In respect to a nonresident decedent, the provisions of Article III of this Code govern: 3 (1) proceedings, if any, in a court of the Virgin Islands for probate of the will, appointment, 4 removal, supervision, and discharge of the local personal representative, and any other order 5 concerning the estate; and (2) the status, powers, duties and liabilities of any local personal 6 representative and the rights of claimants, purchasers, distributees and others in regard to a 7 local administration. 8 PART 3 9 JURISDICTION OVER FOREIGN REPRESENTATIVES 10 §4-301. Jurisdiction by Act of Foreign Personal Representative. 11 A foreign personal representative submits personally to the jurisdiction of the courts 12 of the Virgin Islands in any proceeding relating to the estate by 13 (1) filing authenticated copies of his appointment as provided in section 4-204, 14 (2) receiving payment of money or taking delivery of personal property under 15 section 4-201, or 16 (3) doing any act as a personal representative in the Virgin islands which would 17 have given the courts of the Virgin Islands jurisdiction over him as an individual. 18 Jurisdiction under (2) is limited to the money or value of personal property collected. 19 §4-302. Jurisdiction by Act of Decedent. 20 In addition to jurisdiction conferred by section 4-301, a foreign personal 21 representative is subject to the jurisdiction of the courts of the Virgin Islands to the same 22 extent that his decedent was subject to jurisdiction immediately prior to death. 23 §4-303. Service on Foreign Personal Representative. 24 (a) Service of process may be made upon the foreign personal representative by
    • 232 1 registered or certified mail, addressed to his last reasonably ascertainable address, requesting 2 a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if 3 registered or certified mail service to the addressee is unavailable. Service may be made 4 upon a foreign personal representative in the manner in which service could have been made 5 under other laws of the Virgin Islands on either the foreign personal representative or his 6 decedent immediately prior to death. 7 (b) If service is made upon a foreign personal representative as provided in 8 subsection (a), the foreign personal representative must be allowed at least 30 days within 9 which to appear or respond. 10 PART 4 11 JUDGMENTS AND PERSONAL REPRESENTATIVES 12 §4-401. Effect of Adjudication For or Against Personal Representative. 13 An adjudication rendered in any jurisdiction in favor of or against any personal 14 representative of the estate is as binding on the local personal representative as if the personal 15 foreign representative were a party to the adjudication. 16 ARTICLE V 17 PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY 18 GENERAL PROVISIONS 19 PART 1 20 GENERAL PROVISIONS 21 §5-101 Short Title. 22 Parts 1-4 of this Article may be cited as the Uniform Guardianship and Protective 23 Proceedings Act. 24
    • 233 1 §5-102 Definitions. 2 In Parts 1-4 of this Article: 3 (1) "Conservator" means a person who is appointed by a court to manage the 4 estate of a protected person. The term includes a limited conservator. 5 (2) "Court" means the Superior Court of the Virgin Islands. 6 (3) "Guardian" means a person who has qualified as a guardian of a minor or 7 incapacitated person pursuant to appointment by a parent or spouse, or by the court. The 8 term includes a limited, emergency, and temporary substitute guardian but not a guardian ad 9 litem. 10 (4) "Incapacitated person" means an individual who, for reasons other than being 11 a minor, is unable to receive and evaluate information or make or communicate decisions to 12 such an extent that the individual lacks the ability to meet essential requirements for physical 13 health, safety, or self-care, even with appropriate technological assistance. 14 (5) "Legal representative" includes a representative payee, a guardian or 15 conservator acting for a respondent in the Virgin Islands or elsewhere, a trustee or custodian 16 of a trust or custodianship of which the respondent is a beneficiary, and an agent designated 17 under a power of attorney, whether for health care or property, in which the respondent is 18 identified as the principal. 19 (6) "Minor" means an unemancipated individual who has not attained 18 years of 20 age. 21 (7) "Parent" means a parent whose parental rights have not been terminated. 22 (8) "Protected person" means a minor or other individual for whom a conservator 23 has been appointed or other protective order has been made. 24 (9) "Respondent" means an individual for whom the appointment of a guardian or
    • 234 1 conservator other protective order is sought. 2 (10) "Ward" means an individual for whom a guardian has been appointed. 3 §5-103. [Reserved.] 4 § 5-104. Facility Of Transfer. 5 (a) Unless a person required to transfer money or personal property to a minor 6 knows that a conservator has been appointed or that a proceeding for appointment of a 7 conservator of the estate of the minor is pending, the person may do so, as to an amount or 8 value not exceeding $5,000 a year, by transferring it to: 9 (1) a person who has the care and custody of the minor and with whom the 10 minor resides; 11 (2) a guardian of the minor; 12 (3) a custodian under the Uniform Transfers To Minors Act or custodial 13 trustee under the Uniform Custodial Trust Act; or 14 (4) a financial institution as a deposit in an interest-bearing account or 15 certificate in the sole name of the minor and giving notice of the deposit to the minor. 16 (b) A person who transfers money or property in compliance with this section is 17 not responsible for its proper application. 18 (c) A guardian or other person who receives money or property for a minor under 19 subsection (a)(1) or (2) may only apply it to the support, care, education, health, and welfare 20 of the minor, and may not derive a personal financial benefit except for reimbursement for 21 necessary expenses. Any excess must be preserved for the future support, care, education, 22 health, and welfare of the minor, and any balance must be transferred to the minor upon 23 emancipation or attaining majority.
    • 235 1 § 5-105. Delegation Of Power By Parent Or Guardian. 2 A parent or guardian of a minor or incapacitated person, by a power of attorney, may 3 delegate to another person, for a period not exceeding six months, any power regarding care, 4 custody, or property of the minor or ward, except the power to consent to marriage or 5 adoption. 6 § 5-106. Subject-Matter Jurisdiction. 7 Parts 1-4 of this Article apply to, and the court has jurisdiction over, guardianship and 8 related proceedings for individuals domiciled or present in the Virgin Islands, protective 9 proceedings for individuals domiciled in or having property located in the Virgin Islands, and 10 property coming into the control of a guardian or conservator who is subject to the laws of 11 the Virgin Islands. 12 §5-107. Transfer Of Jurisdiction. 13 (a) After the appointment of a guardian or conservator entry of another protective 14 order, the court making the appointment or entering the order may transfer the proceeding to 15 a court in another judicial division in the Virgin Islands or to another State if the court is 16 satisfied that a transfer will serve the best interest of the ward or protected person. 17 (b) If a guardianship or protective proceeding is pending in another state or 18 foreign country and a petition for guardianship or protective proceeding is filed in a court of 19 the Virgin Islands, the court in the Virgin Islands shall notify the original court and, after 20 consultation with the original court, assume or decline jurisdiction, whichever is in the best 21 interest of the ward or protected person. 22 (c) A guardian, conservator, or like fiduciary appointed in another State may 23 petition the court for appointment as a guardian or conservator in the Virgin islands if venue 24 in the Virgin Islands is or will be established. The appointment may be made upon proof of
    • 236 1 appointment in the other State and presentation of a certified copy of the portion of the court 2 record in the other State specified by the court of the Virgin Islands. Notice of hearing on the 3 petition, together with a copy of the petition, must be given to the ward or protected person, 4 if the ward or protected person has attained 14 years of age, and to the persons who would be 5 entitled to notice if the regular procedures for appointment of a guardian or conservator under 6 this Article were applicable. The court shall make the appointment in the Virgin Islands 7 unless it concludes that the appointment would not be in the best interest of the ward or 8 protected person. Upon the filing of an acceptance of office and any required bond, the court 9 shall issue appropriate letters of guardianship or conservatorship. Within 14 days after an 10 appointment, the guardian or conservator shall send or deliver a copy of the order of 11 appointment to the ward or protected person, if the ward or protected person has attained 14 12 years of age, and to all persons given notice of the hearing on the petition. 13 §5-108. Venue. 14 (a) Venue for a guardianship proceeding for a minor is in the judicial division of 15 the Virgin Islands in which the minor resides or is present at the time the proceeding is 16 commenced. 17 (b) Venue for a guardianship proceeding for an incapacitated person is in the 18 judicial division of the Virgin Islands in which the respondent resides and, if the respondent 19 has been admitted to an institution by order of a court of competent jurisdiction, in the 20 judicial division in which the court is located. Venue for the appointment of an emergency 21 or a temporary substitute guardian of an incapacitated person is also in judicial division in 22 which the respondent is present. 23 (c) Venue for a protective proceeding is in the judicial division of the Virgin 24 Islands in which the respondent resides, whether or not a guardian has been appointed in
    • 237 1 another place or, if the respondent does not reside in Virgin Islands, in any judicial division 2 of the Virgin Islands in which property of the respondent is located. 3 (d) If a proceeding under Parts 1-4 of this Article brought in more than one 4 judicial division of this Territory, the court of the judicial division in which the proceeding is 5 first brought has the exclusive right to proceed unless that court determines that venue is 6 properly in another court or that the interests of justice otherwise require that the proceeding 7 be transferred. 8 §5-109. [Reserved.] 9 §5-110. Letters Of Office. 10 Upon the guardian’s filing of an acceptance of office, the court shall issue appropriate 11 letters of guardianship. Upon the conservator’s filing of an acceptance of office and any 12 required bond, the court shall issue appropriate letters of conservatorship. Letters of 13 guardianship must indicate whether the guardian was appointed by the court, a parent, or the 14 spouse. Any limitation on the powers of a guardian or conservator or of the assets subject to 15 a conservatorship must be endorsed on the guardian’s or conservator’s letters. 16 § 5-111. Effect Of Acceptance Of Appointment. 17 By accepting appointment, a guardian or conservator submits personally to the 18 jurisdiction of the Court in any proceeding relating to the guardianship or conservatorship. 19 The petitioner shall send or deliver notice of any proceeding to the guardian or conservator at 20 the guardian’s or conservator’s address shown in the court records and at any other address 21 then known to the petitioner. 22 § 5-112. Termination Of Or Change In Guardian’s Or Conservator's Appointment. 23 (a) The appointment of a guardian or conservator terminates upon the death, 24 resignation, or removal of the guardian or conservator or upon termination of the
    • 238 1 guardianship or conservatorship. A resignation of a guardian or conservator is effective 2 when approved by the Court. A parental or spousal appointment as guardian under an 3 informally probated will terminates if the will is later denied probate in a formal proceeding. 4 Termination of the appointment of a guardian or conservator does not affect the liability of 5 either for previous acts or the obligation to account for money and other assets of the ward or 6 protected person. 7 (b) A ward, protected person, or person interested in the welfare of a ward or 8 protected person may petition for removal of a guardian or conservator on the ground that 9 removal would be in the best interest of the ward or protected person or for other good cause. 10 A guardian or conservator may petition for permission to resign. A petition for removal or 11 permission to resign may include a request for appointment of a successor guardian or 12 conservator. 13 (c) The court may appoint an additional guardian or conservator at any time, to 14 serve immediately or upon some other designated event, and may appoint a successor 15 guardian or conservator in the event of a vacancy or make the appointment in contemplation 16 of a vacancy, to serve if a vacancy occurs. An additional or successor guardian or 17 conservator may file an acceptance of appointment at any time after the appointment, but not 18 later than 30 days after the occurrence of the vacancy or other designated event. The 19 additional or successor guardian or conservator becomes eligible to act on the occurrence of 20 the vacancy or designated event, or the filing of the acceptance of appointment, whichever 21 last occurs. A successor guardian or conservator succeeds to the predecessor’s powers, and a 22 successor conservator succeeds to the predecessor’s title to the protected person’s assets. 23
    • 239 1 §5-113. Notice. 2 (a) Except as otherwise ordered by the court for good cause, if notice of a hearing 3 on a petition is required, other than a notice for which specific requirements otherwise 4 provided, the petitioner shall give notice of the time and place of the hearing to the person to 5 be notified. Notice must be given in compliance with Fed. R. Civ. P. 5 (b) at least 14 days 6 before the hearing. 7 (b) Proof of notice must be made before or at the hearing and filed in the 8 proceeding. 9 (c) A notice under Parts 1-4 of this Article must be given in plain language. 10 § 5-114. Waiver Of Notice. 11 A person may waive notice by a writing signed by the person or the person’s attorney 12 and filed in the proceeding. However, a respondent, ward, or protected person may not 13 waive notice. 14 § 5-115. Guardian Ad Litem. 15 At any stage of a proceeding, a court may appoint a guardian ad litem if the court 16 determines that representation of the interest otherwise would be inadequate. If not 17 precluded by a conflict of interest, a guardian ad litem may be appointed to represent several 18 individuals or interests. The court shall state on the record the duties of the guardian ad litem 19 and its reasons for the appointment. 20 § 5-116. Request For Notice; Interested Persons. 21 An interested person not otherwise entitled to notice who desires to be notified before 22 any order is made in a guardianship proceeding, including a proceeding after the appointment 23 of a guardian, or in a protective proceeding, may file a request for notice with the clerk of the 24 court in which the proceeding is pending. The clerk shall send or deliver a copy of the
    • 240 1 request to the guardian and to the conservator if one has been appointed. A request is not 2 effective unless it contains a statement showing the interest of the person making it and the 3 address of that person or a lawyer to whom notice is to be given. The request is effective 4 only as to proceedings conducted after its filing. A governmental agency paying or planning 5 to pay benefits to the respondent or protected person is an interested person in a protective 6 proceeding. 7 § 5-117. Multiple Appointments Or Nominations. 8 If a respondent or other person makes more than one written appointment or 9 nomination of a guardian or a conservator, the most recent controls. 10 PART 2 11 GUARDIANSHIP OF MINOR 12 § 5-201. Appointment And Status Of Guardian. 13 A person becomes a guardian of a minor by parental appointment or upon 14 appointment by the court. The guardianship continues until terminated, without regard to the 15 location of the guardian or minor ward. 16 §5-202. Parental Appointment Of Guardian. 17 (a) A guardian may be appointed by will or other signed writing by a parent for 18 any minor child the parent has or may have in the future. The appointment may specify the 19 desired limitations on the powers to be given to the guardian. The appointing parent may 20 revoke or amend the appointment before confirmation by the court. 21 (b) Upon petition of an appointing parent and a finding that the appointing parent 22 will likely become unable to care for the child within two years, and after notice as provided 23 in section 5-205(a), the court, before the appointment becomes effective, may confirm the 24 parent’s selection of a guardian and terminate the rights of others to object.
    • 241 1 (c) Subject to section 5-203, the appointment of a guardian becomes effective 2 upon the appointing parent’s death, an adjudication that the parent is an incapacitated person, 3 or a written determination by a physician who has examined the parent that the parent is no 4 longer able to care for the child, whichever first occurs. 5 (d) The guardian becomes eligible to act upon the filing of an acceptance of 6 appointment, which must be filed within 30 days after the guardian’s appointment becomes 7 effective. The guardian shall: 8 (1) file the acceptance of appointment and a copy of the will with the 9 court of the judicial division in which the will was or could be probated or, in the case 10 of another appointing instrument, file the acceptance of appointment and the 11 appointing instrument with the Court of the judicial division in which the minor 12 resides or is present; and 13 (2) give written notice of the acceptance of appointment to the appointing 14 parent, if living, the minor, if the minor has attained 14 years of age, and a person 15 other than the parent having care and custody of the minor. 16 (e) Unless the appointment was previously confirmed by the court, the notice 17 given under subsection (d)(2) must include a statement of the right of those notified to 18 terminate the appointment by filing a written objection in the court as provided in section 5- 19 203. 20 (f) Unless the appointment was previously confirmed by the court, within 30 days 21 after filing the notice and the appointing instrument, a guardian shall petition the court for 22 confirmation of the appointment, giving notice in the manner provided in section 5-205(a). 23 (g) The appointment of a guardian by a parent does not supersede the parental 24 rights of either parent. If both parents are dead or have been adjudged incapacitated persons,
    • 242 1 an appointment by the last parent who died or was adjudged incapacitated has priority. An 2 appointment by a parent which is effected by filing the guardian’s acceptance under a will 3 probated in the State of the testator’s domicile is effective in the Virgin Islands. 4 (h) The powers of a guardian who timely complies with the requirements of 5 subsections (d) and (f) relate back to give acts by the guardian which are of benefit to the 6 minor and occurred on or after the date the appointment became effective the same effect as 7 those that occurred after the filing of the acceptance of the appointment. 8 (i) The authority of a guardian appointed under this section terminates upon the 9 first to occur of the appointment of a guardian by the court or the giving of written notice to 10 the guardian of the filing of an objection pursuant to section 5-203. 11 § 5-203. Objection By Minor Or Others To Parental Appointment. 12 Until the court has confirmed an appointee under section 5-202, a minor who is the 13 subject of an appointment by a parent and who has attained 14 years of age, the other parent, 14 or a person other than a parent or guardian having care or custody of the minor may prevent 15 or terminate the appointment at any time by filing a written objection in the court in which 16 the appointing instrument is filed and giving notice of the objection to the guardian and any 17 other persons entitled to notice of the acceptance of the appointment. An objection may be 18 withdrawn, and if withdrawn is of no effect. The objection does not preclude judicial 19 appointment of the person selected by the parent. The court may treat the filing of an 20 objection as a petition for the appointment of an emergency or a temporary guardian under 21 section 5-204, and proceed accordingly. 22 § 5-204. Judicial Appointment Of Guardian: Conditions For Appointment. 23 (a) A minor or a person interested in the welfare of a minor may petition for 24 appointment of a guardian.
    • 243 1 (b) The court may appoint a guardian for a minor if the court finds the 2 appointment is in the minor’s best interest, and: 3 (i) the parents consent; 4 (ii) all parental rights have been terminated; or 5 (iii) the parents are unwilling or unable to exercise their parental rights. 6 (c) If a guardian is appointed by a parent pursuant to section 5-202 and the 7 appointment has not been prevented or terminated under section 5-203, that appointee has 8 priority for appointment. However, the court may proceed with another appointment upon a 9 finding that the appointee under section 5-202 has failed to accept the appointment within 30 10 days after notice of the guardianship proceeding. 11 (d) If necessary and on petition or motion and whether or not the conditions of 12 subsection (b) have been established, the court may appoint a temporary guardian for a minor 13 upon a showing that an immediate need exists and that the appointment would be in the best 14 interest of the minor. Notice in the manner provided in section 5-113 must be given to the 15 parents and to a minor who has attained 14 years of age. Except as otherwise ordered by the 16 Court, the temporary guardian has the authority of an unlimited guardian, but the duration of 17 the temporary guardianship may not exceed six months. Within five days after the 18 appointment, the temporary guardian shall send or deliver a copy of the order to all 19 individuals who would be entitled to notice of hearing under section 5-205. 20 (e) If the Court finds that following the procedures of this part will likely result in 21 substantial harm to a minor’s health or safety and that no other person appears to have 22 authority to act in the circumstances, the Court, on appropriate petition, may appoint an 23 emergency guardian for the minor. The duration of the guardian’s authority may not exceed 24 30 days and the guardian may exercise only the powers specified in the order. Reasonable
    • 244 1 notice of the time and place of a hearing on the petition for appointment of an emergency 2 guardian must be given to the minor, if the minor has attained 14 years of age, to each living 3 parent of the minor, and a person having care or custody of the minor, if other than a parent. 4 The court may dispense with the notice if it finds from affidavit or testimony that the minor 5 will be substantially harmed before a hearing can be held on the petition. If the guardian is 6 appointed without notice, notice of the appointment must be given within 48 hours after the 7 appointment and a hearing on the appropriateness of the appointment held within five days 8 after the appointment. 9 § 5-205. Judicial Appointment Of Guardian: Procedure. 10 (a) After a petition for appointment of a guardian is filed, the court shall schedule 11 a hearing, and the petitioner shall give notice of the time and place of the hearing, together 12 with a copy of the petition, to: 13 (1) the minor, if the minor has attained 14 years of age and is not the 14 petitioner; 15 (2) any person alleged to have had the primary care and custody of the 16 minor during the 60 days before the filing of the petition; 17 (3) each living parent of the minor or, if there is none, the adult nearest in 18 kinship that can be found; 19 (4) any person nominated as guardian by the minor if the minor has 20 attained 14 years of age; 21 (5) any appointee of a parent whose appointment has not been prevented 22 or terminated under section 5-203; and 23 (6) any guardian or conservator currently acting for the minor in the 24 Virgin Islands or elsewhere.
    • 245 1 (b) The court, upon hearing, shall make the appointment if it finds that a qualified 2 person seeks appointment, venue is proper, the required notices have been given, the 3 conditions of section 5-204(b) have been met, and the best interest of the minor will be 4 served by the appointment. In other cases, the Court may dismiss the proceeding or make 5 any other disposition of the matter that will serve the best interest of the minor. 6 (c) If the Court determines at any stage of the proceeding, before or after 7 appointment, that the interests of the minor are or may be inadequately represented, it may 8 appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the 9 minor has attained 14 years of age. 10 § 5-206. Judicial Appointment Of Guardian: Priority Of Minor’s Nominee; Limited 11 Guardianship. 12 (a) The court shall appoint as guardian a person whose appointment will be in the 13 best interest of the minor. The Court shall appoint a person nominated by the minor, if the 14 minor has attained 14 years of age, unless the court finds the appointment will be contrary to 15 the best interest of the minor. 16 (b) In the interest of developing self-reliance of a ward or for other good cause, 17 the Court, at the time of appointment or later, on its own motion or on motion of the minor 18 ward or other interested person, may limit thereby create a limited guardianship. Following 19 the same procedure, the court may grant additional powers or withdraw powers previously 20 granted. 21 § 5-207. Duties Of Guardian. 22 (a) Except as otherwise limited by the court, a guardian of a minor ward has the 23 duties and responsibilities of a parent regarding the ward’s support, care, education, health, 24 and welfare. A guardian shall act at all times in the ward’s best interest and exercise
    • 246 1 reasonable care, diligence, and prudence. 2 (b) A guardian shall: 3 (1) become or remain personally acquainted with the ward and maintain 4 sufficient contact with the ward to know of the ward’s capacities, limitations, needs, 5 opportunities, and physical and mental health; 6 (2) take reasonable care of the ward’s personal effects and bring a 7 protective proceeding if necessary to protect other property of the ward; 8 (3) expend money of the ward which has been received by the guardian 9 for the ward’s current needs for support, care, education, health, and welfare; 10 (4) conserve any excess money of the ward for the ward’s future needs, 11 but if a conservator has been appointed for the estate of the ward, the guardian shall 12 pay the money at least quarterly to the conservator to be conserved for the ward’s 13 future needs; 14 (5) report the condition of the ward and account for money and other 15 assets in the guardian’s possession or subject to the guardian’s control, as ordered by 16 the court on application of any person interested in the ward’s welfare or as required 17 by court rule; and 18 (6) inform the court of any change in the ward’s custodial dwelling or 19 address. 20 § 5-208. Powers of Guardian. 21 (a) Except as otherwise limited by the Court, a guardian of a minor ward has the 22 powers of a parent regarding the ward’s support, care, education, health, and welfare. 23 (b) A guardian may: 24 (1) apply for and receive money for the support of the ward otherwise
    • 247 1 payable to the ward’s parent, guardian, or custodian under the terms of any statutory 2 system of benefits or insurance or any private contract, devise, trust, conservatorship, 3 or custodianship; 4 (2) if otherwise consistent with the terms of any order by a court of 5 competent jurisdiction relating to custody of the ward, take custody of the ward and 6 establish the ward’s place of custodial dwelling, but may only establish or move the 7 ward’s custodial dwelling outside the State upon express authorization of the court; 8 (3) if a conservator for the estate of a ward has not been appointed with 9 existing authority, commence a proceeding, including an administrative proceeding, 10 or take other appropriate action to compel a person to support the ward or to pay 11 money for the benefit of the ward; 12 (4) consent to medical or other care, treatment, or service for the ward; 13 (5) consent to the marriage of the ward; and 14 (6) if reasonable under all of the circumstances, delegate to the ward 15 certain responsibilities for decisions affecting the ward’s well-being. 16 (c) The Court may specifically authorize the guardian to consent to the adoption 17 of the ward. 18 §5-209. Rights And Immunities of Guardian. 19 (a) A guardian is entitled to reasonable compensation for services as guardian and 20 to reimbursement for room, board, and clothing provided by the guardian to the ward, but 21 only as approved by the court. If a conservator, other than the guardian or a person who is 22 affiliated with the guardian, has been appointed for the estate of the ward, reasonable 23 compensation and reimbursement to the guardian may be approved and paid by the 24 conservator without order of the court.
    • 248 1 (b) A guardian need not use the guardian’s personal funds for the ward’s 2 expenses. A guardian is not liable to a third person for acts of the ward solely by reason of 3 the guardianship. A guardian is not liable for injury to the ward resulting from the 4 negligence or act of a third person providing medical or other care, treatment, or service for 5 the ward except to the extent that a parent would be liable under the circumstances. 6 §5-210. Termination Of Guardianship; Other Proceedings After Appointment. 7 (a) A guardianship of a minor terminates upon the minor’s death, adoption, 8 emancipation or attainment of majority or as ordered by the court. 9 (b) A ward or a person interested in the welfare of a ward may petition for any 10 order that is in the best interest of the ward. The petitioner shall give notice of the hearing on 11 the petition to the ward, if the ward has attained 14 years of age and is not the petitioner, the 12 guardian, and any other person as ordered by the court. 13 PART 3 14 GUARDIANSHIP OF INCAPACITATED PERSON 15 §5-301. Appointment and Status of Guardian. 16 A person becomes a guardian of an incapacitated person by a parental or spousal 17 appointment or upon appointment by the court. The guardianship continues until terminated, 18 without regard to the location of the guardian or ward. 19 § 5-302. Appointment of Guardian By Will Or Other Writing. 20 (a) A parent, by will or other signed writing, may appoint a guardian for an 21 unmarried child who the parent believes is an incapacitated person, specify desired 22 limitations on the powers to be given to the guardian, and revoke or amend the appointment 23 before confirmation by the court. 24 (b) An individual, by will or other signed writing, may appoint a guardian for the
    • 249 1 individual’s spouse who the appointing spouse believes is an incapacitated person, specify 2 desired limitations on the powers to be given to the guardian, and revoke or amend the 3 appointment before confirmation by the court. 4 (c) The incapacitated person, the person having care or custody of the 5 incapacitated person if other than the appointing parent or spouse, or the adult nearest 6 kinship to the incapacitated person may file a written objection to an appointment, unless the 7 court has confirmed the appointment under subsection (d). The filing of the written objection 8 terminates the appointment. An objection may be withdrawn and, if withdrawn, is of no 9 effect. The objection does not preclude judicial appointment of the person selected by the 10 parent or spouse. Notice of the objection must be given to the guardian and any other person 11 entitled to notice of the acceptance of the appointment. The court may treat the filing of an 12 objection as a petition for the appointment of an emergency guardian under Section 5-312 or 13 for the appointment of a limited or unlimited guardian under Section 5-304 and proceed 14 accordingly. 15 (d) Upon petition of the appointing parent or spouse, and a finding that the 16 appointing parent or spouse will likely become unable to care for the incapacitated person 17 within two years, and after notice as provided in this section, the Court, before the 18 appointment becomes effective, may confirm the appointing parent’s or spouse’s selection of 19 a guardian and terminate the rights of others to object. 20 § 5-303. Appointment of Guardian By Will Or Other Writing: Effectiveness; 21 Acceptance; Confirmation. 22 (a) The appointment of a guardian under section 5-302 becomes effective upon 23 the death of the appointing parent or spouse, the adjudication of incapacity of the appointing 24 parent or spouse, or a written determination by a physician who has examined the appointing
    • 250 1 parent or spouse that the appointing parent or spouse is no longer able to care for the 2 incapacitated person, whichever first occurs. 3 (b) A guardian appointed under section 5-302 becomes eligible to act upon the 4 filing of an acceptance of appointment, which must be filed within 30 days after the 5 guardian’s appointment becomes effective. The guardian shall: 6 (1) file the notice of acceptance of appointment and a copy of the will 7 with the court of the judicial district in which the will was or could be probated or, in 8 the case of another appointing instrument, file the acceptance of appointment and the 9 appointing instrument with the Court in the judicial division in which the 10 incapacitated person resides or is present; and 11 (2) give written notice of the acceptance of appointment to the appointing 12 parent or spouse if living, the incapacitated person, a person having care or custody of 13 the incapacitated person other than the appointing parent or spouse, and the adult 14 nearest in kinship. 15 (c) Unless the appointment was previously confirmed by the court, the notice 16 given under subsection (b)(2) must include a statement of the right of those notified to 17 terminate the appointment by filing a written objection as provided in section 5-302. 18 (d) An appointment effected by filing the guardian’s acceptance under a will 19 probated in the State of the testator’s domicile is effective in the Virgin Islands. 20 (e) Unless the appointment was previously confirmed by the court, within 30 days 21 after filing the notice and the appointing instrument, a guardian appointed under section 5- 22 302 shall file a petition in the court for confirmation of the appointment. Notice of the filing 23 must be given in the manner provided in section 5-309. 24 (f) The authority of a guardian appointed under section 5-302 terminates upon the
    • 251 1 appointment of a guardian by the court or the giving of written notice to the guardian of the 2 filing of an objection pursuant to section 5-302, whichever first occurs. 3 (g) The appointment of a guardian under this section is not a determination of 4 incapacity. 5 (h) The powers of a guardian who timely complies with the requirements of 6 subsections (b) and (e) relate back to give acts by the guardian which are of benefit to the 7 incapacitated person and occurred on or after the date the appointment became effective the 8 same effect as those that occurred after the filing of the acceptance of appointment. 9 § 5-304. Judicial Appointment of Guardian: Petition. 10 (a) An individual or a person interested in the individual’s welfare may petition 11 for a determination of incapacity, in whole or in part, and for the appointment of a limited or 12 unlimited guardian for the individual. 13 (b) The petition must set forth the petitioner’s name, residence, current address if 14 different, relationship to the respondent, and interest in the appointment and, to the extent 15 known, state or contain the following with respect to the respondent and the relief requested: 16 (1) the respondent’s name, age, principal residence, current street address, 17 and, if different, the address of the dwelling in which it is proposed that the 18 respondent will reside if the appointment is made; 19 (2) the name and address of the respondent’s: 20 (A) spouse, or if the respondent has none, an adult with whom the 21 respondent has resided for more than six months before the filing of the 22 petition; and 23 (B) adult children or, if the respondent has none, the respondent’s 24 parents and adult brothers and sisters, or if the respondent has none, at least
    • 252 1 one of the adults nearest in kinship to the respondent who can be found; 2 (3) the name and address of any person responsible for care or custody of 3 the respondent; 4 (4) the name and address of any legal representative of the respondent; 5 (5) the name and address of any person nominated as guardian by the 6 respondent; 7 (6) the name and address of any proposed guardian and the reason why the 8 proposed guardian should be selected; 9 (7) the reason why guardianship is necessary, including a brief description 10 of the nature and extent of the respondent’s alleged incapacity; 11 (8) if an unlimited guardianship is requested, the reason why limited 12 guardianship is inappropriate and, if a limited guardianship is requested, the powers 13 to be granted to the limited guardian; and 14 (9) a general statement of the respondent’s property with an estimate of its 15 value, including any insurance or pension, and the source and amount of any other 16 anticipated income or receipts. 17 §5-305. Judicial Appointment of Guardian: Preliminaries to Hearing. 18 (a) Upon receipt of a petition to establish a guardianship, the court shall set a date 19 and time for hearing the petition and appoint a visitor. The duties and reporting requirements 20 of the visitor are limited to the relief requested in the petition. The visitor must be an 21 individual having training or experience in the type of incapacity alleged. 22 (b) Unless the respondent is represented by a lawyer, the court shall appoint a 23 lawyer to represent the respondent in the proceeding. 24 (c) The visitor shall interview the respondent in person and, to the extent that the
    • 253 1 respondent is able to understand: 2 (1) explain to the respondent the substance of the petition, the nature, 3 purpose, and effect of the proceeding, the respondent’s rights at the hearing, and the 4 general powers and duties of a guardian; 5 (2) determine the respondent’s views about the proposed guardian, the 6 proposed guardian’s powers and duties, and the scope and duration of the proposed 7 guardianship; 8 (3) inform the respondent of the right to employ and consult with a lawyer 9 at the respondent’s own expense and the right to request a court-appointed lawyer; 10 and 11 (4) inform the respondent that all costs and expenses of the proceeding, 12 including respondent’s attorney’s fees, will be paid from the respondent’s estate. 13 (d) In addition to the duties imposed by subsection (c) the visitor shall: 14 (1) interview the petitioner and the proposed guardian; 15 (2) visit the respondent's present dwelling and any dwelling in which the 16 respondent will live if the appointment is made; 17 (3) obtain information from any physician or other person who is known 18 to have treated, advised, or assessed the respondent’s relevant physical or mental 19 condition; and 20 (4) make any other investigation the court directs. 21 (e) The visitor shall promptly file a report in writing with the court, which must 22 include: 23 (1) a summary of daily functions the respondent can manage without
    • 254 1 assistance, could manage with the assistance of supportive services or benefits, 2 including use of appropriate technological assistance, and cannot manage; 3 (2) recommendations regarding the appropriateness of guardianship, 4 including as to whether less restrictive means of intervention are available, the type of 5 guardianship, and, if a limited guardianship, the powers to be granted to the limited 6 guardian; 7 (3) a statement of the qualifications of the proposed guardian, together 8 with a statement as to whether the respondent approves or disapproves of the 9 guardian, and the powers and duties proposed or the scope of the guardianship; 10 (4) a statement as to whether the proposed dwelling meets the 11 respondent’s individual needs; 12 (5) a recommendation as to whether a professional evaluation or further 13 evaluation is necessary; and 14 (6) any other matters the court directs. 15 § 5-306. Judicial Appointment of Guardian: Professional Evaluation. 16 At or before a hearing under this part, the court may order a professional evaluation 17 of the respondent and shall order the evaluation if the respondent so demands. If the court 18 orders the evaluation, the respondent must be examined by a physician, psychologist, or other 19 individual appointed by the court who is qualified to evaluate the respondent’s alleged 20 impairment. The examiner shall promptly file a written report with the court. Unless 21 otherwise directed by the court, the report must contain: 22 (1) a description of the nature, type, and extent of the respondent’s specific 23 cognitive and functional limitations; 24 (2) an evaluation of the respondent’s mental and physical condition and, if
    • 255 1 appropriate, educational potential, adaptive behavior, and social skills; 2 (3) a prognosis for improvement and a recommendation as to the appropriate 3 treatment or habilitation plan; and 4 (4) the date of any assessment or examination upon which the report is based. 5 §5-307. Confidentiality of Records. 6 The written report of a visitor and any professional evaluation are confidential and 7 must be sealed upon filing, but are available to: 8 (1) the Court; 9 (2) the respondent without limitation as to use; 10 (3) the petitioner, the visitor, and the petitioner’s and respondent’s lawyers, for 11 purposes of the proceeding; and 12 (4) other persons for such purposes as the court may order for good cause. 13 § 5-308. Judicial Appointment of Guardian: Presence And Rights At Hearing. 14 (a) Unless excused by the court for good cause, the proposed guardian shall 15 attend the hearing. The respondent shall attend and participate in the hearing, unless excused 16 by the court for good cause. The respondent may present evidence and subpoena witnesses 17 and documents; examine witnesses, including any court-appointed physician, psychologist, 18 or other individual qualified to evaluate the alleged impairment, and the visitor; and 19 otherwise participate in the hearing. The hearing may be held in a location convenient to the 20 respondent and may be closed upon the request of the respondent and a showing of good 21 cause. 22 (b) Any person may request permission to participate in the proceeding. The 23 Court may grant the request, with or without hearing, upon determining that the best interest 24 of the respondent will be served. The Court may attach appropriate conditions to the
    • 256 1 participation. 2 § 5-309. Notice. 3 (a) A copy of a petition for guardianship and notice of the hearing on the petition 4 must be served personally on the respondent. The notice must include a statement that the 5 respondent must be physically present unless excused by the court, inform the respondent of 6 the respondent’s rights at the hearing, and include a description of the nature, purpose, and 7 consequences of an appointment. A failure to serve the respondent with a notice 8 substantially complying with this subsection precludes the court from granting the petition. 9 (b) In a proceeding to establish a guardianship, notice of the hearing must be 10 given to the persons listed in the petition. Failure to give notice under this subsection does 11 not preclude the appointment of a guardian or the making of a protective order. 12 (c) Notice of the hearing on a petition for an order after appointment of a 13 guardian, together with a copy of the petition, must be given to the ward, the guardian, and 14 any other person the court directs. 15 (d) A guardian shall give notice of the filing of the guardian’s report, together 16 with a copy of the report, to the ward and any other person the court directs. The notice must 17 be delivered or sent within 14 days after the filing of the report. 18 § 5-310. Who May Be Guardian: Priorities. 19 (a) Subject to subsection (c), the Court in appointing a guardian shall consider 20 persons otherwise qualified in the following order of priority: 21 (1) a guardian, other than a temporary or emergency guardian, currently 22 acting for the respondent in the Virgin Islands or elsewhere; 23 (2) a person nominated as guardian by the respondent, including the 24 respondent’s most recent nomination made in a durable power of attorney, if at the
    • 257 1 time of the nomination the respondent had sufficient capacity to express a preference; 2 (3) an agent appointed by the respondent under the Uniform Health-Care 3 Decisions Act; 4 (4) the spouse of the respondent or a person nominated by will or other 5 signed writing of a deceased spouse; 6 (5) an adult child of the respondent; 7 (6) a parent of the respondent, or an individual nominated by will or other 8 signed writing of a deceased parent; and 9 (7) an adult with whom the respondent has resided for more than six 10 months before the filing of the petition. 11 (b) With respect to persons having equal priority, the court shall select the one it 12 considers best qualified. The court, acting in the best interest of the respondent, may decline 13 to appoint a person having priority and appoint a person having a lower priority or no 14 priority. 15 (c) An owner, operator, or employee of a long-term-care institution at which the 16 respondent is receiving care may not be appointed as guardian unless related to the 17 respondent by blood, marriage, or adoption. 18 § 5-311. Findings; Order of Appointment. 19 (a) The Court may: 20 (1) appoint a limited or unlimited guardian for a respondent only if it finds 21 by clear and convincing evidence that: 22 (A) the respondent is an incapacitated person; and 23 (B) the respondent’s identified needs cannot be met by less 24 restrictive means, including use of appropriate technological assistance; or
    • 258 1 (2) with appropriate findings, treat the petition as one for a protective 2 order under section 5-401, enter any other appropriate order, or dismiss the 3 proceeding. 4 (b) The court, whenever feasible, shall grant to a guardian only those powers 5 necessitated by the ward’s limitations and demonstrated needs and make appointive and other 6 orders that will encourage the development of the ward’s maximum self-reliance and 7 independence. 8 (c) Within 14 days after an appointment, a guardian shall send or deliver to the 9 ward and to all other persons given notice of the hearing on the petition a copy of the order of 10 appointment, together with a notice of the right to request termination or modification. 11 §5-312. Emergency Guardian. 12 (a) If the Court finds that compliance with the procedures of this part will likely 13 result in substantial harm to the respondent’s health, safety, or welfare, and that no other 14 person appears to have authority and willingness to act in the circumstances, the Court, on 15 petition by a person interested in the respondent’s welfare, may appoint an emergency 16 guardian whose authority may not exceed 60 days and who may exercise only the powers 17 specified in the order. Immediately upon receipt of the petition for an emergency 18 guardianship, the court shall appoint a lawyer to represent the respondent in the proceeding. 19 Except as otherwise provided in subsection (b), reasonable notice of the time and place of a 20 hearing on the petition must be given to the respondent and any other persons as the court 21 directs. 22 (b) An emergency guardian may be appointed without notice to the respondent 23 and the respondent’s lawyer only if the court finds from affidavit or testimony that the 24 respondent will be substantially harmed before a hearing on the appointment can be held. If
    • 259 1 the court appoints an emergency guardian without notice to the respondent, the respondent 2 must be given notice of the appointment within 48 hours after the appointment. The court 3 shall hold a hearing on the appropriateness of the appointment within five days after the 4 appointment. 5 (c) Appointment of an emergency guardian, with or without notice, is not a 6 determination of the respondent’s incapacity. 7 (d) The Court may remove an emergency guardian at any time. An emergency 8 guardian shall make any report the court requires. In other respects, the provisions of this 9 article concerning guardians apply to an emergency guardian. 10 §5-313. Temporary Substitute Guardian. 11 (a) If the Court finds that a guardian is not effectively performing the guardian’s 12 duties and that the welfare of the ward requires immediate action, it may appoint a temporary 13 substitute guardian for the ward for a specified period not exceeding six months. Except as 14 otherwise ordered by the Court, a temporary substitute guardian so appointed has the powers 15 set forth in the previous order of appointment. The authority of any unlimited or limited 16 guardian previously appointed by the Court is suspended as long as a temporary substitute 17 guardian has authority. If an appointment is made without previous notice to the ward or the 18 affected guardian, the court, within five days after appointment, shall inform the ward or 19 guardian of the appointment. 20 (b) The Court may remove a temporary substitute guardian at any time. A 21 temporary substitute guardian shall make any report the court requires. In other respects, the 22 provisions of this Article concerning guardians apply to a temporary substitute guardian. 23 §5-314. Duties of Guardian. 24 (a) Except as otherwise limited by the Court, a guardian shall make decisions
    • 260 1 regarding the ward’s support, care, education, health, and welfare. A guardian shall exercise 2 authority only as necessitated by the ward’s limitations and, to the extent possible, shall 3 encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or 4 regain the capacity to manage the ward’s personal affairs. A guardian, in making decisions, 5 shall consider the expressed desires and personal values of the ward to the extent known to 6 the guardian. A guardian at all times shall act in the ward’s best interest and exercise 7 reasonable care, diligence, and prudence. 8 (b) A guardian shall: 9 (1) become or remain personally acquainted with the ward and maintain 10 sufficient contact with the ward to know of the ward’s capacities, limitations, needs, 11 opportunities, and physical and mental health; 12 (2) take reasonable care of the ward’s personal effects and bring protective 13 proceedings if necessary to protect the property of the ward; 14 (3) expend money of the ward that has been received by the guardian for 15 the ward’s current needs for support, care, education, health, and welfare; 16 (4) conserve any excess money of the ward for the ward’s future needs, 17 but if a conservator has been appointed for the estate of the ward, the guardian shall 18 pay the money to the conservator, at least quarterly, to be conserved for the ward’s 19 future needs; 20 (5) immediately notify the court if the ward’s condition has changed so 21 that the ward is capable of exercising rights previously removed; and 22 (6) inform the court of any change in the ward’s custodial dwelling or 23 address. 24
    • 261 1 § 5-315. Powers of Guardian. 2 (a) Except as otherwise limited by the Court, a guardian may: 3 (1) apply for and receive money payable to the ward or the ward’s 4 guardian or custodian for the support of the ward under the terms of any statutory 5 system of benefits or insurance or any private contract, devise, trust, conservatorship, 6 or custodianship; 7 (2) if otherwise consistent with the terms of any order by a court of 8 competent jurisdiction relating to custody of the ward, take custody of the ward and 9 establish the ward’s place of custodial dwelling, but may only establish or move the 10 ward’s place of dwelling outside the Virgin Islands upon express authorization of the 11 Court; 12 (3) if a conservator for the estate of the ward has not been appointed with 13 existing authority, commence a proceeding, including an administrative proceeding, 14 or take other appropriate action to compel a person to support the ward or to pay 15 money for the benefit of the ward; 16 (4) consent to medical or other care, treatment, or service for the ward; 17 (5) consent to the marriage or divorce of the ward; and 18 (6) if reasonable under all of the circumstances, delegate to the ward 19 certain responsibilities for decisions affecting the ward’s well-being. 20 (b) The Court may specifically authorize the guardian to consent to the adoption 21 of the ward. 22 § 5-316. Rights and Immunities of Guardian; Limitations. 23 (a) A guardian is entitled to reasonable compensation for services as guardian and 24 to reimbursement for room, board, and clothing provided to the ward, but only as approved
    • 262 1 by order of the Court. If a conservator, other than the guardian or one who is affiliated with 2 the guardian, has been appointed for the estate of the ward, reasonable compensation and 3 reimbursement to the guardian may be approved and paid by the conservator without order of 4 the court. 5 (b) A guardian need not use the guardian’s personal funds for the ward’s 6 expenses. A guardian is not liable to a third person for acts of the ward solely by reason of 7 the relationship. A guardian who exercises reasonable care in choosing a third person 8 providing medical or other care, treatment, or service for the ward is not liable for injury to 9 the ward resulting from the wrongful conduct of the third party. 10 (c) A guardian, without authorization of the Court, may not revoke a power of 11 attorney for health care made pursuant to the Uniform Health-Care Decisions Act of which 12 the ward is the principal. If a power of attorney for health care made pursuant to the Uniform 13 Health-Care Decisions Act is in effect, absent an order of the court to the contrary, a health- 14 care decision of the agent takes precedence over that of a guardian. 15 (d) A guardian may not initiate the commitment of a ward to a mental health-care 16 facility except in accordance with the State’s procedure for involuntary civil commitment. 17 § 5-317. Reports; Monitoring Of Guardianship. 18 (a) Within 30 days after appointment, a guardian shall report to the Court in 19 writing on the condition of the ward and account for money and other assets in the guardian’s 20 possession or subject to the guardian’s control. A guardian shall report at least annually 21 thereafter and whenever ordered by the court. A report must state or contain: 22 (1) the current mental, physical, and social condition of the ward; 23 (2) the living arrangements for all addresses of the ward during the 24 reporting period;
    • 263 1 (3) the medical, educational, vocational, and other services provided to the 2 ward and the guardian’s opinion as to the adequacy of the ward’s care; 3 (4) a summary of the guardian’s visits with the ward and activities on the 4 ward’s behalf and the extent to which the ward has participated in decision-making; 5 (5) if the ward is institutionalized, whether the guardian considers the 6 current plan for care, treatment, or habilitation to be in the ward’s best interest; 7 (6) plans for future care; and 8 (7) a recommendation as to the need for continued guardianship and any 9 recommended changes in the scope of the guardianship. 10 (b) The Court may appoint a visitor to review a report, interview the ward or 11 guardian, and make any other investigation the court directs. 12 (c) The Court shall establish a system for monitoring guardianships, including the 13 filing and review of annual reports. 14 § 5-318. Termination Or Modification Of Guardianship. 15 (a) A guardianship terminates upon the death of the ward or upon order of the 16 court. 17 (b) On petition of a ward, a guardian, or another person interested in the ward’s 18 welfare, the Court may terminate a guardianship if the ward no longer needs the assistance or 19 protection of a guardian. The Court may modify the type of appointment or powers granted 20 to the guardian if the extent of protection or assistance previously granted is currently 21 excessive or insufficient or the ward’s capacity to provide for support, care, education, 22 health, and welfare has so changed as to warrant that action. 23 (c) Except as otherwise ordered by the Court for good cause, the court, before 24 terminating a guardianship, shall follow the same procedures to safeguard the rights of the
    • 264 1 ward as apply to a petition for guardianship. Upon presentation by the petitioner of evidence 2 establishing a prima facie case for termination, the court shall order the termination unless it 3 is proven that continuation of the guardianship is in the best interest of the ward. 4 PART 4 5 PROTECTION OF PROPERTY OF PROTECTED PERSON 6 §5-401. Protective Proceeding. 7 Upon petition and after notice and hearing, the Court may appoint a limited or 8 unlimited conservator or make any other protective order provided in this part in relation to 9 the estate and affairs of: 10 (1) a minor, if the Court determines that the minor owns money or property 11 requiring management or protection that cannot otherwise be provided or has or may have 12 business affairs that may be put at risk or prevented because of the minor’s age, or that 13 money is needed for support and education and that protection is necessary or desirable to 14 obtain or provide money; or 15 (2) any individual, including a minor, if the court determines that, for reasons 16 other than age: 17 (A) by clear and convincing evidence, the individual is unable to manage 18 property and business affairs because of an impairment in the ability to receive and 19 evaluate information or make decisions, even with the use of appropriate 20 technological assistance, or because the individual is missing, detained, or unable to 21 return to the United States; and 22 (B) by a preponderance of evidence, the individual has property that will 23 be wasted or dissipated unless management is provided or money is needed for the 24 support, care, education, health, and welfare of the individual or of individuals who
    • 265 1 are entitled to the individual’s support and that protection is necessary or desirable to 2 obtain or provide money. 3 §5-402. Jurisdiction Over Business Affairs of Protected Person. 4 After the service of notice in a proceeding seeking a conservatorship or other 5 protective order and until termination of the proceeding, the court in which the petition is 6 filed has: 7 (1) exclusive jurisdiction to determine the need for a conservatorship or other 8 protective order; 9 (2) exclusive jurisdiction to determine how the estate of the protected person 10 which is subject to the laws of the Virgin Islands must be managed, expended, or distributed 11 to or for the use of the protected person, individuals who are in fact dependent upon the 12 protected person, or other claimants; and 13 (3) concurrent jurisdiction to determine the validity of claims against the person 14 or estate of the protected person and questions of title concerning assets of the estate. 15 §5-403. Original Petition For Appointment of Conservator or Other Protective Order. 16 (a) The following may petition for the appointment of a conservator or for any 17 other appropriate protective order: 18 (1) the person to be protected; 19 (2) an individual interested in the estate, affairs, or welfare of the person 20 to be protected, including a parent, guardian, or custodian; or 21 (3) a person who would be adversely affected by lack of effective 22 management of the property and business affairs of the person to be protected. 23 (b) A petition under subsection (a) must set forth the petitioner’s name, residence, 24 current address if different, relationship to the respondent, and interest in the appointment or
    • 266 1 other protective order, and, to the extent known, state or contain the following with respect to 2 the respondent and the relief requested: 3 (1) the respondent’s name, age, principal residence, current street address, 4 and, if different, the address of the dwelling where it is proposed that the respondent 5 will reside if the appointment is made; 6 (2) if the petition alleges impairment in the respondent’s ability to receive 7 and evaluate information, a brief description of the nature and extent of the 8 respondent’s alleged impairment; 9 (3) if the petition alleges that the respondent is missing, detained, or 10 unable to return to the United States, a statement of the relevant circumstances, 11 including the time and nature of the disappearance or detention and a description of 12 any search or inquiry concerning the respondent’s whereabouts; 13 (4) the name and address of the respondent’s: 14 (A) spouse or, if the respondent has none, an adult with whom the 15 respondent has resided for more than six months before the filing of the 16 petition; and 17 (B) adult children or, if the respondent has none, the respondent’s 18 parents and adult brothers and sisters or, if the respondent has none, at least 19 one of the adults nearest in kinship to the respondent who can be found; 20 (5) the name and address of the person responsible for care or custody of 21 the respondent; 22 (6) the name and address of any legal representative of the respondent; 23 (7) a general statement of the respondent’s property with an estimate of its
    • 267 1 value, including any insurance or pension, and the source and amount of other 2 anticipated income or receipts; and 3 (8) the reason why a conservatorship or other protective order is in the 4 best interest of the respondent. 5 (c) If a conservatorship is requested, the petition must also set forth to the extent 6 known: 7 (1) the name and address of any proposed conservator and the reason why 8 the proposed conservator should be selected; 9 (2) the name and address of any person nominated as conservator by the 10 respondent if the respondent has attained 14 years of age; and 11 (3) the type of conservatorship requested and, if an unlimited 12 conservatorship, the reason why limited conservatorship is inappropriate or, if a 13 limited conservatorship, the property to be placed under the conservator’s control and 14 any limitation on the conservator’s powers and duties. 15 § 5-404. Notice. 16 (a) A copy of the petition and the notice of hearing on a petition for 17 conservatorship or other protective order must be served personally on the respondent, but if 18 the respondent’s whereabouts is unknown or personal service cannot be made, service on the 19 respondent must be made by substituted service or publication. The notice must include a 20 statement that the respondent must be physically present unless excused by the Court, inform 21 the respondent of the respondent’s rights at the hearing, and, if the appointment of a 22 conservator is requested, include a description of the nature, purpose, and consequences of an 23 appointment. A failure to serve the respondent with a notice substantially complying with 24 this subsection precludes the Court from granting the petition.
    • 268 1 (b) In a proceeding to establish a conservatorship or for another protective order, 2 notice of the hearing must be given to the persons listed in the petition. Failure to give notice 3 under this subsection does not preclude the appointment of a conservator or the making of 4 another protective order. 5 (c) Notice of the hearing on a petition for an order after appointment of a 6 conservator or making of another protective order, together with a copy of the petition, must 7 be given to the protected person, if the protected person has attained 14 years of age and is 8 not missing, detained, or unable to return to the United States, any conservator of the 9 protected person’s estate, and any other person as ordered by the court. 10 (d) A conservator shall give notice of the filing of the conservator’s inventory, 11 report, or plan of conservatorship, together with a copy of the inventory, report, or plan of 12 conservatorship to the protected person and any other person the court directs. The notice 13 must be delivered or sent within 14 days after the filing of the inventory, report, or plan of 14 conservatorship. 15 § 5-405. Original Petition: Minors; Preliminaries to Hearing. 16 (a) Upon the filing of a petition to establish a conservatorship or for another 17 protective order for the reason that the respondent is a minor, the court shall set a date for 18 hearing. If the court determines at any stage of the proceeding that the interests of the minor 19 are or may be inadequately represented, it may appoint a lawyer to represent the minor, 20 giving consideration to the choice of the minor if the minor has attained 14 years of age. 21 (b) While a petition to establish a conservatorship or for another protective order 22 is pending, after preliminary hearing and without notice to others, the court may make orders 23 to preserve and apply the property of the minor as may be required for the support of the 24 minor or individuals who are in fact dependent upon the minor. The Court may appoint a
    • 269 1 master to assist in that task. 2 § 5-406. Original Petition: Preliminaries to Hearing. 3 (a) Upon the filing of a petition for a conservatorship or other protective order for 4 a respondent for reasons other than being a minor, the Court shall set a date for hearing. The 5 Court shall appoint a visitor unless the petition does not request the appointment of a 6 conservator and the respondent is represented by a lawyer. The duties and reporting 7 requirements of the visitor are limited to the relief requested in the petition. The visitor must 8 be an individual having training or experience in the type of incapacity alleged. 9 (b) Unless the respondent is represented by a lawyer, the Court shall appoint a 10 lawyer to represent the respondent in the proceeding. 11 (c) The visitor shall interview the respondent in person and, to the extent that the 12 respondent is able to understand: 13 (1) explain to the respondent the substance of the petition and the nature, 14 purpose, and effect of the proceeding; 15 (2) if the appointment of a conservator is requested, inform the respondent 16 of the general powers and duties of a conservator and determine the respondent’s 17 views regarding the proposed conservator, the proposed conservator’s powers and 18 duties, and the scope and duration of the proposed conservatorship; 19 (3) inform the respondent of the respondent’s rights, including the right to 20 employ and consult with a lawyer at the respondent’s own expense, and the right to 21 request a court-appointed lawyer; and 22 (4) inform the respondent that all costs and expenses of the proceeding, 23 including respondent’s attorney’s fees, will be paid from the respondent’s estate. 24 (d) In addition to the duties imposed by subsection (c), the visitor shall:
    • 270 1 (1) interview the petitioner and the proposed conservator, if any; and 2 (2) make any other investigation the court directs. 3 (e) The visitor shall promptly file a report with the Court which must include: 4 (1) recommendations regarding the appropriateness of a conservatorship, 5 including whether less restrictive means of intervention are available, the type of 6 conservatorship, and, if a limited conservatorship, the powers and duties to be granted 7 the limited conservator, and the assets over which the conservator should be granted 8 authority; 9 (2) a statement of the qualifications of the proposed conservator, together 10 with a statement as to whether the respondent approves or disapproves of the 11 proposed conservator, and a statement of the powers and duties proposed or the scope 12 of the conservatorship; 13 (3) a recommendation as to whether a professional evaluation or further 14 evaluation is necessary; and 15 (4) any other matters the Court directs. 16 (f) The court may also appoint a physician, psychologist, or other individual 17 qualified to evaluate the alleged impairment to conduct an examination of the respondent. 18 (g) While a petition to establish a conservatorship or for another protective order 19 is pending, after preliminary hearing and without notice to others, the Court may issue orders 20 to preserve and apply the property of the respondent as may be required for the support of the 21 respondent or individuals who are in fact dependent upon the respondent. The Court may 22 appoint a master to assist in that task. 23
    • 271 1 § 5-407. Confidentiality Of Records. 2 The written report of a [visitor] and any professional evaluation are confidential and 3 must be sealed upon filing, but are available to: 4 (1) the Court; 5 (2) the respondent without limitation as to use; 6 (3) the petitioner, the visitor, and the petitioner’s and respondent’s lawyers, for 7 purposes of the proceeding; and 8 (4) other persons for such purposes as the court may order for good cause. 9 §408. Original Petition: Procedure at Hearing. 10 (a) Unless excused by the court for good cause, a proposed conservator shall 11 attend the hearing. The respondent shall attend and participate in the hearing, unless excused 12 by the court for good cause. The respondent may present evidence and subpoena witnesses 13 and documents, examine witnesses, including any court-appointed physician, psychologist, 14 or other individual qualified to evaluate the alleged impairment, and the visitor, and 15 otherwise participate in the hearing. The hearing may be held in a location convenient to the 16 respondent and may be closed upon request of the respondent and a showing of good cause. 17 (b) Any person may request permission to participate in the proceeding. The 18 court may grant the request, with or without hearing, upon determining that the best interest 19 of the respondent will be served. The court may attach appropriate conditions to the 20 participation. 21 §5-409. Original Petition: Orders. 22 (a) If a proceeding is brought for the reason that the respondent is a minor, after a 23 hearing on the petition, upon finding that the appointment of a conservator or other protective 24 order is in the best interest of the minor, the Court shall make an appointment or other
    • 272 1 appropriate protective order. 2 (b) If a proceeding is brought for reasons other than that the respondent is a 3 minor, after a hearing on the petition, upon finding that a basis exists for a conservatorship or 4 other protective order, the Court shall make the least restrictive order consistent with its 5 findings. The Court shall make orders necessitated by the protected person’s limitations and 6 demonstrated needs, including appointive and other orders that will encourage the 7 development of maximum self-reliance and independence of the protected person. 8 (c) Within 14 days after an appointment, the conservator shall deliver or send a 9 copy of the order of appointment, together with a statement of the right to seek termination or 10 modification, to the protected person, if the protected person has attained 14 years of age and 11 is not missing, detained, or unable to return to the United States, and to all other persons 12 given notice of the petition. 13 (d) The appointment of a conservator or the entry of another protective order is 14 not a determination of incapacity of the protected person. 15 §5-410. Powers Of Court. 16 (a) After hearing and upon determining that a basis for a conservatorship or other 17 protective order exists, the court has the following powers, which may be exercised directly 18 or through a conservator: 19 (1) with respect to a minor for reasons of age, all the powers over the 20 estate and business affairs of the minor which may be necessary for the best interest 21 of the minor and members of the minor’s immediate family; and 22 (2) with respect to an adult, or to a minor for reasons other than age, for 23 the benefit of the protected person and individuals who are in fact dependent on the 24 protected person for support, all the powers over the estate and business affairs of the
    • 273 1 protected person which the person could exercise if the person were an adult, present, 2 and not under conservatorship or other protective order. 3 (b) Subject to section 5-110 requiring endorsement of limitations on the letters of 4 office, the Court may limit at any time the powers of a conservator otherwise conferred and 5 may remove or modify any limitation. 6 § 5-411. Required Court Approval. 7 (a) After notice to interested persons and upon express authorization of the Court, 8 a conservator may: 9 (1) make gifts, except as otherwise provided in Section 5-427(b); 10 (2) convey, release, or disclaim contingent and expectant interests in 11 property, including marital property rights and any right of survivorship incident to 12 joint tenancy or tenancy by the entireties; 13 (3) exercise or release a power of appointment; 14 (4) create a revocable or irrevocable trust of property of the estate, 15 whether or not the trust extends beyond the duration of the conservatorship, or revoke 16 or amend a trust revocable by the protected person; 17 (5) exercise rights to elect options and change beneficiaries under 18 insurance policies and annuities or surrender the policies and annuities for their cash 19 value; 20 (6) exercise any right to an elective share in the estate of the protected 21 person’s deceased spouse and to renounce or disclaim any interest by testate or 22 intestate succession or by transfer inter vivos; and 23 (7) make, amend, or revoke the protected person’s will. 24 (b) A conservator, in making, amending, or revoking the protected person’s will,
    • 274 1 shall comply with Article II, §2-502 of this Code. 2 (c) The Court, in exercising or in approving a conservator’s exercise of the 3 powers listed in subsection (a), shall consider primarily the decision that the protected person 4 would have made, to the extent that the decision can be ascertained. The Court shall also 5 consider: 6 (1) the financial needs of the protected person and the needs of individuals 7 who are in fact dependent on the protected person for support and the interest of 8 creditors; 9 (2) possible reduction of income, estate, inheritance, or other tax 10 liabilities; 11 (3) eligibility for governmental assistance; 12 (4) the protected person’s previous pattern of giving or level of support; 13 (5) the existing estate plan; 14 (6) the protected person’s life expectancy and the probability that the 15 conservatorship will terminate before the protected person’s death; and 16 (7) any other factors the court considers relevant. 17 (d) Without authorization of the Court, a conservator may not revoke or amend a 18 durable power of attorney of which the protected person is the principal. If a durable power 19 of attorney is in effect, absent a court order to the contrary, a decision of the agent takes 20 precedence over that of a conservator. 21 § 5-412. Protective Arrangements And Single Transactions. 22 (a) If a basis is established for a protective order with respect to an individual, the 23 Court, without appointing a conservator, may: 24 (1) authorize, direct, or ratify any transaction necessary or desirable to
    • 275 1 achieve any arrangement for security, service, or care meeting the foreseeable needs 2 of the protected person, including: 3 (A) payment, delivery, deposit, or retention of funds or property; 4 (B) sale, mortgage, lease, or other transfer of property; 5 (C) purchase of an annuity; 6 (D) making a contract for life care, deposit contract, or contract for 7 training and education; or 8 (E) addition to or establishment of a suitable trust[, including a 9 trust created under the Uniform Custodial Trust Act], and 10 (2) authorize, direct, or ratify any other contract, trust, will, or transaction 11 relating to the protected person’s property and business affairs, including a settlement 12 of a claim, upon determining that it is in the best interest of the protected person. 13 (b) In deciding whether to approve a protective arrangement or other transaction 14 under this section, the Court shall consider the factors described in section 5-411(c). 15 (c) The court may appoint a master to assist in the accomplishment of any 16 protective arrangement or other transaction authorized under this section. The master has the 17 authority conferred by the order and shall serve until discharged by order after report to the 18 Court. 19 § 5-413. Who May Be Conservator: Priorities. 20 (a) Except as otherwise provided in subsection (d), the Court, in appointing a 21 conservator, shall consider persons otherwise qualified in the following order of priority: 22 (1) a conservator, guardian of the estate, or other like fiduciary appointed 23 or recognized by an appropriate court of any other jurisdiction in which the protected 24 person resides;
    • 276 1 (2) a person nominated as conservator by the respondent, including the 2 respondent’s most recent nomination made in a durable power of attorney, if the 3 respondent has attained 14 years of age and at the time of the nomination had 4 sufficient capacity to express a preference; 5 (3) an agent appointed by the respondent to manage the respondent’s 6 property under a durable power of attorney; 7 (4) the spouse of the respondent; 8 (5) an adult child of the respondent; 9 (6) a parent of the respondent; and 10 (7) an adult with whom the respondent has resided for more than six 11 months before the filing of the petition. 12 (b) A person having priority under subsection (a)(1), (4), (5), or (6) may designate 13 in writing a substitute to serve instead and thereby transfer the priority to the substitute. 14 (c) With respect to persons having equal priority, the court shall select the one it 15 considers best qualified. The Court, acting in the best interest of the protected person, may 16 decline to appoint a person having priority and appoint a person having a lower priority or no 17 priority. 18 (d) An owner, operator, or employee of a long-term care facility at which the 19 respondent is receiving care may not be appointed as conservator unless related to the 20 respondent by blood, marriage, or adoption. 21 §5-414. Petition For Order Subsequent To Appointment. 22 (a) A protected person or a person interested in the welfare of a protected person 23 may file a petition in the appointing court for an order: 24 (1) requiring bond or collateral or additional bond or collateral, or
    • 277 1 reducing bond; 2 (2) requiring an accounting for the administration of the protected 3 person’s estate; 4 (3) directing distribution; 5 (4) removing the conservator and appointing a temporary or successor 6 conservator; 7 (5) modifying the type of appointment or powers granted to the 8 conservator if the extent of protection or management previously granted is currently 9 excessive or insufficient or the protected person’s ability to manage the estate and 10 business affairs has so changed as to warrant the action; or 11 (6) granting other appropriate relief. 12 (b) A conservator may petition the appointing court for instructions concerning 13 fiduciary responsibility. 14 (c) Upon notice and hearing the petition, the court may give appropriate 15 instructions and make any appropriate order. 16 § 5-415. Bond. 17 The Court may require a conservator to furnish a bond conditioned upon faithful 18 discharge of all duties of the conservatorship according to law, with sureties as it may 19 specify. Unless otherwise directed by the Court, the bond must be in the amount of the 20 aggregate capital value of the property of the estate in the conservator’s control, plus one 21 year’s estimated income, and minus the value of assets deposited under arrangements 22 requiring an order of the court for their removal and the value of any real property that the 23 fiduciary, by express limitation, lacks power to sell or convey without court authorization. 24 The Court, in place of sureties on a bond, may accept collateral for the performance of the
    • 278 1 bond, including a pledge of securities or a mortgage of real property. 2 § 5-416. Terms And Requirements Of Bond. 3 (a) The following rules apply to any bond required: 4 (1) Except as otherwise provided by the terms of the bond, sureties and 5 the conservator are jointly and severally liable. 6 (2) By executing the bond of a conservator, a surety submits to the 7 jurisdiction of the court that issued letters to the primary obligor in any proceeding 8 pertaining to the fiduciary duties of the conservator in which the surety is named as a 9 party. Notice of any proceeding must be sent or delivered to the surety at the address 10 shown in the court records at the place where the bond is filed and to any other 11 address then known to the petitioner. 12 (3) On petition of a successor conservator or any interested person, a 13 proceeding may be brought against a surety for breach of the obligation of the bond 14 of the conservator. 15 (4) The bond of the conservator may be proceeded against until liability 16 under the bond is exhausted. 17 (b) A proceeding may not be brought against a surety on any matter as to which 18 an action or proceeding against the primary obligor is barred. 19 § 5-417. Compensation And Expenses. 20 If not otherwise compensated for services rendered, a guardian, conservator, lawyer 21 for the respondent, lawyer whose services resulted in a protective order or in an order 22 beneficial to a protected person’s estate, or any other person appointed by the court is entitled 23 to reasonable compensation from the estate. Compensation may be paid and expenses 24 reimbursed without court order. If the court determines that the compensation is excessive or
    • 279 1 the expenses are inappropriate, the excessive or inappropriate amount must be repaid to the 2 estate. 3 § 5-418. General Duties Of Conservator; Plan. 4 (a) A conservator, in relation to powers conferred by this part or implicit in the 5 title acquired by virtue of the proceeding, is a fiduciary and shall observe the standards of 6 care applicable to a trustee. 7 (b) A conservator may exercise authority only as necessitated by the limitations 8 of the protected person, and to the extent possible, shall encourage the person to participate 9 in decisions, act in the person’s own behalf, and develop or regain the ability to manage the 10 person’s estate and business affairs. 11 (c) Within 60 days after appointment, a conservator shall file with the appointing 12 court a plan for protecting, managing, expending, and distributing the assets of the protected 13 person’s estate. The plan must be based on the actual needs of the person and take into 14 consideration the best interest of the person. The conservator shall include in the plan steps 15 to develop or restore the person’s ability to manage the person’s property, an estimate of the 16 duration of the conservatorship, and projections of expenses and resources. 17 (d) In investing an estate, selecting assets of the estate for distribution, and 18 invoking powers of revocation or withdrawal available for the use and benefit of the 19 protected person and exercisable by the conservator, a conservator shall take into account any 20 estate plan of the person known to the conservator and may examine the will and any other 21 donative, nominative, or other appointive instrument of the person. 22 § 5-419. Inventory; Records. 23 (a) Within 60 days after appointment, a conservator shall prepare and file with the 24 appointing court a detailed inventory of the estate subject to the conservatorship, together
    • 280 1 with an oath or affirmation that the inventory is believed to be complete and accurate as far 2 as information permits. 3 (b) A conservator shall keep records of the administration of the estate and make 4 them available for examination on reasonable request of an interested person. 5 § 5-420. Reports; Appointment Of Visitor; Monitoring. 6 (a) A conservator shall report to the Court for administration of the estate 7 annually unless the court otherwise directs, upon resignation or removal, upon termination of 8 the conservatorship, and at other times as the court directs. An order, after notice and 9 hearing, allowing an intermediate report of a conservator adjudicates liabilities concerning 10 the matters adequately disclosed in the accounting. An order, after notice and hearing, 11 allowing a final report adjudicates all previously unsettled liabilities relating to the 12 conservatorship. 13 (b) A report must contain: 14 (1) a list of the assets of the estate under the conservator’s control and a 15 list of the receipts, disbursements, and distributions during the period for which the 16 report is made; 17 (2) a list of the services provided to the protected person; and 18 (3) any recommended changes in the plan for the conservatorship as well 19 as a recommendation as to the continued need for conservatorship and any 20 recommended changes in the scope of the conservatorship. 21 (c) The Court may appoint a visitor to review a report or plan, interview the 22 protected person or conservator, and make any other investigation the court directs. In 23 connection with a report, the court may order a conservator to submit the assets of the estate 24 to an appropriate examination to be made in a manner the court directs.
    • 281 1 (d) The Court shall establish a system for monitoring conservatorships, including 2 the filing and review of conservators’ reports and plans. 3 § 5-421. Title By Appointment. 4 (a) The appointment of a conservator vests title in the conservator as trustee to all 5 property of the protected person, or to the part thereof specified in the order, held at the time 6 of appointment or thereafter acquired. An order vesting title in the conservator to only a part 7 of the property of the protected person creates a conservatorship limited to assets specified in 8 the order. 9 (b) Letters of conservatorship are evidence of vesting title of the protected 10 person’s assets in the conservator. An order terminating a conservatorship transfers title to 11 assets remaining subject to the conservatorship, including any described in the order, to the 12 formerly protected person or the person’s successors. 13 (c) Subject to the requirements of other statutes governing the filing or 14 recordation of documents of title to land or other property, letters of conservatorship and 15 orders terminating conservatorships may be filed or recorded to give notice of title as 16 between the conservator and the protected person. 17 § 5-422. Protected Person’s Interest Inalienable. 18 (a) Except as otherwise provided in subsections (c) and (d), the interest of a 19 protected person in property vested in a conservator is not transferable or assignable by the 20 protected person. An attempted transfer or assignment by the protected person, although 21 ineffective to affect property rights, may give rise to a claim against the protected person for 22 restitution or damages which, subject to presentation and allowance, may be satisfied as 23 provided in section 5-429. 24 (b) Property vested in a conservator by appointment and the interest of the
    • 282 1 protected person in that property are not subject to levy, garnishment, or similar process for 2 claims against the protected person unless allowed under section 5-429. 3 (c) A person without knowledge of the conservatorship who in good faith and for 4 security or substantially equivalent value receives delivery from a protected person of 5 tangible personal property of a type normally transferred by delivery of possession, is 6 protected as if the protected person or transferee had valid title. 7 (d) A third party who deals with the protected person with respect to property 8 vested in a conservator is entitled to any protection provided in other law. 9 §5-423. Sale, Encumbrance, Or Other Transaction Involving Conflict Of Interest. 10 Any transaction involving the conservatorship estate which is affected by a 11 substantial conflict between the conservator’s fiduciary and personal interests is voidable 12 unless the transaction is expressly authorized by the court after notice to interested persons. 13 A transaction affected by a substantial conflict between personal and fiduciary interests 14 includes any sale, encumbrance, or other transaction involving the conservatorship estate 15 entered into by the conservator, the spouse, descendant, agent, or lawyer of a conservator, or 16 a corporation or other enterprise in which the conservator has a substantial beneficial interest. 17 §5-424. Protection Of Person Dealing With Conservator. 18 (a) A person who assists or deals with a conservator in good faith and for value in 19 any transaction other than one requiring a court order under section 5-410 or section 5-411 is 20 protected as though the conservator properly exercised the power. That a person knowingly 21 deals with a conservator does not alone require the person to inquire into the existence of a 22 power or the propriety of its exercise, but restrictions on powers of conservators which are 23 endorsed on letters as provided in section 5-110 are effective as to third persons. A person 24 who pays or delivers assets to a conservator is not responsible for their proper application.
    • 283 1 (b) Protection provided by this section extends to any procedural irregularity or 2 jurisdictional defect that occurred in proceedings leading to the issuance of letters and is not 3 a substitute for protection provided to persons assisting or dealing with a conservator by 4 comparable provisions in other law relating to commercial transactions or to simplifying 5 transfers of securities by fiduciaries. 6 § 5-425. Powers Of Conservator In Administration. 7 (a) Except as otherwise qualified or limited by the court in its order of 8 appointment and endorsed on the letters, a conservator has all of the powers granted in this 9 section and any additional powers granted by law to a trustee in the Virgin Islands. 10 (b) A conservator, acting reasonably and in an effort to accomplish the purpose of 11 the appointment, and without further court authorization or confirmation, may: 12 (1) collect, hold, and retain assets of the estate, including assets in which 13 the conservator has a personal interest and real property in another State, until the 14 conservator considers that disposition of an asset should be made; 15 (2) receive additions to the estate; 16 (3) continue or participate in the operation of any business or other 17 enterprise; 18 (4) acquire an undivided interest in an asset of the estate in which the 19 conservator, in any fiduciary capacity, holds an undivided interest; 20 (5) invest assets of the estate as though the conservator were a trustee; 21 (6) deposit money of the estate in a financial institution, including one 22 operated by the conservator; 23 (7) acquire or dispose of an asset of the estate, including real property in 24 another state, for cash or on credit, at public or private sale, and manage, develop,
    • 284 1 improve, exchange, partition, change the character of, or abandon an asset of the 2 estate; 3 (8) make ordinary or extraordinary repairs or alterations in buildings or 4 other structures, demolish any improvements, and raze existing or erect new party 5 walls or buildings; 6 (9) subdivide, develop, or dedicate land to public use, make or obtain the 7 vacation of plats and adjust boundaries, adjust differences in valuation or exchange or 8 partition by giving or receiving considerations, and dedicate easements to public use 9 without consideration; 10 (10) enter for any purpose into a lease as lessor or lessee, with or without 11 option to purchase or renew, for a term within or extending beyond the term of the 12 conservatorship; 13 (11) enter into a lease or arrangement for exploration and removal of 14 minerals or other natural resources or enter into a pooling or unitization agreement; 15 (12) grant an option involving disposition of an asset of the estate and take 16 an option for the acquisition of any asset; 17 (13) vote a security, in person or by general or limited proxy; 18 (14) pay calls, assessments, and any other sums chargeable or accruing 19 against or on account of securities; 20 (15) sell or exercise stock subscription or conversion rights; 21 (16) consent, directly or through a committee or other agent, to the 22 reorganization, consolidation, merger, dissolution, or liquidation of a corporation or 23 other business enterprise; 24 (17) hold a security in the name of a nominee or in other form without
    • 285 1 disclosure of the conservatorship so that title to the security may pass by delivery; 2 (18) insure the assets of the estate against damage or loss and the 3 conservator against liability with respect to a third person; 4 (19) borrow money, with or without security, to be repaid from the estate or 5 otherwise and advance money for the protection of the estate or the protected person 6 and for all expenses, losses, and liability sustained in the administration of the estate 7 or because of the holding or ownership of any assets, for which the conservator has a 8 lien on the estate as against the protected person for advances so made; 9 (20) pay or contest any claim, settle a claim by or against the estate or the 10 protected person by compromise, arbitration, or otherwise, and release, in whole or in 11 part, any claim belonging to the estate to the extent the claim is uncollectible; 12 (21) pay taxes, assessments, compensation of the conservator and any 13 guardian, and other expenses incurred in the collection, care, administration, and 14 protection of the estate; 15 (22) allocate items of income or expense to income or principal of the 16 estate, as provided by other law, including creation of reserves out of income for 17 depreciation, obsolescence, or amortization or for depletion of minerals or other 18 natural resources; 19 (23) pay any sum distributable to a protected person or individual who is in 20 fact dependent on the protected person by paying the sum to the distributee or by 21 paying the sum for the use of the distributee: 22 (A) to the guardian of the distributee; 23 (B) to a distributee’s custodian under [the Uniform Transfers to 24 Minors Act] or custodial trustee or [the Uniform Custodial Trust Act]; or
    • 286 1 (C) if there is no guardian, custodian, or custodial trustee, to a 2 relative or other person having physical custody of the distributee; 3 (24) prosecute or defend actions, claims, or proceedings in any jurisdiction 4 for the protection of assets of the estate and of the conservator in the performance of 5 fiduciary duties; and 6 (25) execute and deliver all instruments that will accomplish or facilitate 7 the exercise of the powers vested in the conservator. 8 § 5-426. Delegation. 9 (a) A conservator may not delegate to an agent or another conservator the entire 10 administration of the estate, but a conservator may otherwise delegate the performance of 11 functions that a prudent trustee of comparable skills may delegate under similar 12 circumstances. 13 (b) The conservator shall exercise reasonable care, skill, and caution in: 14 (1) selecting an agent; 15 (2) establishing the scope and terms of a delegation, consistent with the 16 purposes and terms of the conservatorship; 17 (3) periodically reviewing an agent’s overall performance and compliance 18 with the terms of the delegation; and 19 (4) redressing an action or decision of an agent which would constitute a 20 breach of trust if performed by the conservator. 21 (c) A conservator who complies with subsections (a) and (b) is not liable to the 22 protected person or to the estate for the decisions or actions of the agent to whom a function 23 was delegated. 24 (d) In performing a delegated function, an agent shall exercise reasonable care to
    • 287 1 comply with the terms of the delegation. 2 (e) By accepting a delegation from a conservator subject to the law of the Virgin 3 Islands an agent submits to the jurisdiction of the courts of the Virgin Islands. 4 §5-427. Principles of Distribution By Conservator. 5 (a) Unless otherwise specified in the order of appointment and endorsed on the 6 letters of appointment or contrary to the plan filed pursuant to section 5-418, a conservator 7 may expend or distribute income or principal of the estate of the protected person without 8 further court authorization or confirmation for the support, care, education, health, and 9 welfare of the protected person and individuals who are in fact dependent on the protected 10 person, including the payment of child or spousal support, in accordance with the following 11 rules: 12 (1) A conservator shall consider recommendations relating to the 13 appropriate standard of support, care, education, health, and welfare for the protected 14 person or an individual who is in fact dependent on the protected person made by a 15 guardian, if any, and, if the protected person is a minor, the conservator shall consider 16 recommendations made by a parent. 17 (2) A conservator may not be surcharged for money paid to persons 18 furnishing support, care, education, or benefit to a protected person, or an individual 19 who is in fact dependent on the protected person, in accordance with the 20 recommendations of a parent or guardian of the protected person unless the 21 conservator knows that the parent or guardian derives personal financial benefit 22 therefrom, including relief from any personal duty of support, or the 23 recommendations are not in the best interest of the protected person. 24 (3) In making distributions under this subsection, the conservator shall
    • 288 1 consider: 2 (A) the size of the estate, the estimated duration of the 3 conservatorship, and the likelihood that the protected person, at some future 4 time, may be fully self-sufficient and able to manage business affairs and the 5 estate; 6 (B) the accustomed standard of living of the protected person and 7 individuals who are in fact dependent on the protected person; and 8 (C) other money or sources used for the support of the protected 9 person. 10 (4) Money expended under this subsection may be paid by the conservator 11 to any person, including the protected person, as reimbursement for expenditures that 12 the conservator might have made, or in advance for services to be rendered to the 13 protected person if it is reasonable to expect the services will be performed and 14 advance payments are customary or reasonably necessary under the circumstances. 15 (b) If an estate is ample to provide for the distributions authorized by subsection 16 (a), a conservator for a protected person other than a minor may make gifts that the protected 17 person might have been expected to make, in amounts that do not exceed in the aggregate for 18 any calendar year 20 percent of the income of the estate in that year. 19 §5-428. Death Of Protected Person. 20 (a) If a protected person dies, the conservator shall deliver to the court for 21 safekeeping any will of the protected person which may have come into the conservator’s 22 possession, inform the personal representative or beneficiary named in the will of the 23 delivery, and retain the estate for delivery to the personal representative of the decedent or to
    • 289 1 another person entitled to it. 2 (b) If a personal representative has not been appointed within 40 days after the 3 death of a protected person and an application or petition for appointment is not before the 4 court, the conservator may apply to exercise powers and duties of a personal representative in 5 order to administer and distribute the decedent’s estate. Upon application for an order 6 conferring upon the conservator the powers of a personal representative, after notice given by 7 the conservator to any person nominated as personal representative by any will of which the 8 applicant is aware, the court may grant the application upon determining that there is no 9 objection and endorse the letters of conservatorship to note that the formerly protected person 10 is deceased and that the conservator has acquired all of the powers and duties of a personal 11 representative. 12 (c) The issuance of an order under this section has the effect of an order of 13 appointment of a personal representative [as provided in section 3-308 and Parts 6 through 10 14 of Article III]. However, the estate in the name of the conservator, after administration, may 15 be distributed to the decedent’s successors without retransfer to the conservator as personal 16 representative. 17 §5-429. Presentation and Allowance of Claims. 18 (a) A conservator may pay, or secure by encumbering assets of the estate, claims 19 against the estate or against the protected person arising before or during the conservatorship 20 upon their presentation and allowance in accordance with the priorities stated in subsection 21 (d). A claimant may present a claim by: 22 (1) sending or delivering to the conservator a written statement of the 23 claim, indicating its basis, the name and address of the claimant, and the amount 24 claimed; or
    • 290 1 (2) filing a written statement of the claim, in a form acceptable to the 2 court, with the clerk of court and sending or delivering a copy of the statement to the 3 conservator. 4 (b) A claim is deemed presented on receipt of the written statement of claim by 5 the conservator or the filing of the claim with the court, whichever first occurs. A presented 6 claim is allowed if it is not disallowed by written statement sent or delivered by the 7 conservator to the claimant within 60 days after its presentation. The conservator before 8 payment may change an allowance to a disallowance in whole or in part, but not after 9 allowance under a court order or judgment or an order directing payment of the claim. The 10 presentation of a claim tolls the running of any statute of limitations relating to the claim 11 until 30 days after its disallowance. 12 (c) A claimant whose claim has not been paid may petition the court for 13 determination of the claim at any time before it is barred by a statute of limitations and, upon 14 due proof, procure an order for its allowance, payment, or security by encumbering assets of 15 the estate. If a proceeding is pending against a protected person at the time of appointment of 16 a conservator or is initiated against the protected person thereafter, the moving party shall 17 give to the conservator notice of any proceeding that could result in creating a claim against 18 the estate. 19 (d) If it appears that the estate is likely to be exhausted before all existing claims 20 are paid, the conservator shall distribute the estate in money or in kind in payment of claims 21 in the following order: 22 (1) costs and expenses of administration; 23 (2) claims of the federal or state government having priority under other 24 law;
    • 291 1 (3) claims incurred by the conservator for support, care, education, health, 2 and welfare previously provided to the protected person or individuals who are in fact 3 dependent on the protected person; 4 (4) claims arising before the conservatorship; and 5 (5) all other claims. 6 (e) Preference may not be given in the payment of a claim over any other claim of 7 the same class, and a claim due and payable may not be preferred over a claim not due. 8 (f) If assets of the conservatorship are adequate to meet all existing claims, the 9 court, acting in the best interest of the protected person, may order the conservator to grant a 10 security interest in the conservatorship estate for the payment of any or all claims at a future 11 date. 12 §5-430. Personal Liability Of Conservator. 13 (a) Except as otherwise agreed, a conservator is not personally liable on a 14 contract properly entered into in a fiduciary capacity in the course of administration of the 15 estate unless the conservator fails to reveal in the contract the representative capacity and 16 identify the estate. 17 (b) A conservator is personally liable for obligations arising from ownership or 18 control of property of the estate or for other acts or omissions occurring in the course of 19 administration of the estate only if personally at fault. 20 (c) Claims based on contracts entered into by a conservator in a fiduciary 21 capacity, obligations arising from ownership or control of the estate, and claims based on 22 torts committed in the course of administration of the estate may be asserted against the 23 estate by proceeding against the conservator in a fiduciary capacity, whether or not the 24 conservator is personally liable therefor.
    • 292 1 (d) A question of liability between the estate and the conservator personally may 2 be determined in a proceeding for accounting, surcharge, or indemnification, or in another 3 appropriate proceeding or action. 4 (e) A conservator is not personally liable for any environmental condition on or 5 injury resulting from any environmental condition on land solely by reason of an acquisition 6 of title under Section 5-421. 7 § 5-431. Termination Of Proceedings. 8 (a) A conservatorship terminates upon the death of the protected person or upon 9 order of the court. Unless created for reasons other than that the protected person is a minor, 10 a conservatorship created for a minor also terminates when the protected person attains 11 majority or is emancipated. 12 (b) Upon the death of a protected person, the conservator shall conclude the 13 administration of the estate by distribution to the person’s successors. The conservator shall 14 file a final report and petition for discharge within 30 days after distribution. 15 (c) On petition of a protected person, a conservator, or another person interested 16 in a protected person’s welfare, the court may terminate the conservatorship if the protected 17 person no longer needs the assistance or protection of a conservator. Termination of the 18 conservatorship does not affect a conservator’s liability for previous acts or the obligation to 19 account for funds and assets of the protected person. 20 (d) Except as otherwise ordered by the court for good cause, before terminating a 21 conservatorship, the court shall follow the same procedures to safeguard the rights of the 22 protected person that apply to a petition for conservatorship. Upon the establishment of a 23 prima facie case for termination, the court shall order termination unless it is proved that 24 continuation of the conservatorship is in the best interest of the protected person.
    • 293 1 (e) Upon termination of a conservatorship and whether or not formally distributed 2 by the conservator, title to assets of the estate passes to the formerly protected person or the 3 person’s successors. The order of termination must provide for expenses of administration 4 and direct the conservator to execute appropriate instruments to evidence the transfer of title 5 or confirm a distribution previously made and to file a final report and a petition for 6 discharge upon approval of the final report. 7 (f) The court shall enter a final order of discharge upon the approval of the final 8 report and satisfaction by the conservator of any other conditions placed by the court on the 9 conservator’s discharge. 10 §5-432. Payment Of Debt And Delivery Of Property To Foreign Conservator Without 11 Local Proceeding. 12 (a) A person who is indebted to or has the possession of tangible or intangible 13 property of a protected person may pay the debt or deliver the property to a foreign 14 conservator, guardian of the estate, or other court-appointed fiduciary of the State of 15 residence of the protected person. Payment or delivery may be made only upon proof of 16 appointment and presentation of an affidavit made by or on behalf of the fiduciary stating 17 that a protective proceeding relating to the protected person is not pending in the Virgin 18 Islands and the foreign fiduciary is entitled to payment or to receive delivery. 19 (b) Payment or delivery in accordance with subsection (a) discharges the debtor 20 or possessor, absent knowledge of any protective proceeding pending in the Virgin Islands. 21 §5-433. Foreign Conservator: Proof Of Authority; Bond; Powers. 22 If a conservator has not been appointed in the Virgin Islands and a petition in a 23 protective proceeding is not pending in the Virgin Islands, a conservator appointed in the 24 jurisdiction in which the protected person resides may file in a court of the Virgin Islands, in
    • 294 1 a judicial division in which property belonging to the protected person is located, 2 authenticated copies of letters of appointment and of any bond. Thereafter, the conservator 3 may exercise all powers of a conservator appointed in the Virgin Islands as to property in the 4 Virgin Islands and may maintain actions and proceedings in the Virgin Islands subject to any 5 conditions otherwise imposed upon nonresident parties. 6 PART 5 7 UNIFORM POWER OF ATTORNEY ACT 8 § 5-501. SHORT TITLE. This part may be cited as the Uniform Power of Attorney Act. 9 §5-502. DEFINITIONS. In this part: 10 (1) “Agent” means a person granted authority to act for a principal under a power 11 of attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes 12 an original agent, coagent, successor agent, and a person to which an agent’s authority is 13 delegated. 14 (2) “Durable,” with respect to a power of attorney, means not terminated by the 15 principal’s incapacity. 16 (3) “Electronic” means relating to technology having electrical, digital, magnetic, 17 wireless, optical, electromagnetic, or similar capabilities. 18 (4) “Good faith” means honesty in fact. 19 (5) “Incapacity” means inability of an individual to manage property or business 20 affairs because the individual: 21 (A) has an impairment in the ability to receive and evaluate information or 22 make or communicate decisions even with the use of technological assistance; or 23 (B) is: 24 (i) missing;
    • 295 1 (ii) detained, including incarcerated in a penal system; or 2 (iii) outside the United States and unable to return. 3 (6) “Person” means an individual, corporation, business trust, estate, trust, 4 partnership, limited liability company, association, joint venture, public corporation, 5 government or governmental subdivision, agency, or instrumentality, or any other legal or 6 commercial entity. 7 (7) “Power of attorney” means a writing or other record that grants authority to an 8 agent to act in the place of the principal, whether or not the term power of attorney is used. 9 (8) “Presently exercisable general power of appointment,” with respect to 10 property or a property interest subject to a power of appointment, means power exercisable at 11 the time in question to vest absolute ownership in the principal individually, the principal’s 12 estate, the principal’s creditors, or the creditors of the principal’s estate. The term includes a 13 power of appointment not exercisable until the occurrence of a specified event, the 14 satisfaction of an ascertainable standard, or the passage of a specified period only after the 15 occurrence of the specified event, the satisfaction of the ascertainable standard, or the 16 passage of the specified period. The term does not include a power exercisable in a fiduciary 17 capacity or only by will. 18 (9) “Principal” means an individual who grants authority to an agent in a power 19 of attorney. 20 (10) “Property” means anything that may be the subject of ownership, whether real 21 or personal, or legal or equitable, or any interest or right therein. 22 (11) “Record” means information that is inscribed on a tangible medium or that is 23 stored in an electronic or other medium and is retrievable in perceivable form. 24 (12) “Sign” means, with present intent to authenticate or adopt a record:
    • 296 1 (A) to execute or adopt a tangible symbol; or 2 (B) to attach to or logically associate with the record an electronic sound, 3 symbol, or process. 4 (13) “State” means a state of the United States, the District of Columbia, Puerto 5 Rico, the United States Virgin Islands, or any territory or insular possession subject to the 6 jurisdiction of the United States. 7 (14) “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of 8 securities and financial instruments, whether held directly, indirectly, or in any other manner. 9 The term does not include commodity futures contracts and call or put options on stocks or 10 stock indexes. 11 §5-503. APPLICABILITY. This part applies to all powers of attorney except: 12 (1) a power to the extent it is coupled with an interest in the subject of the power, 13 including a power given to or for the benefit of a creditor in connection with a credit 14 transaction; 15 (2) a power to make health-care decisions; 16 (3) a proxy or other delegation to exercise voting rights or management rights 17 with respect to an entity; and 18 (4) a power created on a form prescribed by a government or governmental 19 subdivision, agency, or instrumentality for a governmental purpose. 20 §5-504. POWER OF ATTORNEY IS DURABLE. A power of attorney created under this 21 part is durable unless it expressly provides that it is terminated by the incapacity of the 22 principal. 23 §5-505. EXECUTION OF POWER OF ATTORNEY. A power of attorney must be 24 signed by the principal or in the principal’s conscious presence by another individual directed
    • 297 1 by the principal to sign the principal’s name on the power of attorney. A signature on a 2 power of attorney is presumed to be genuine if the principal acknowledges the signature 3 before a notary public or other individual authorized by law to take acknowledgments. 4 §5-506. VALIDITY OF POWER OF ATTORNEY. 5 (a) A power of attorney executed in the Virgin Islands on or after the effective 6 date of this part is valid if its execution complies with section 5-505. 7 (b) A power of attorney executed in the Virgin Islands before the effective date 8 of this part is valid if its execution complied with the law of the Virgin Islands as it existed at 9 the time of execution. 10 (c) A power of attorney executed other than in the Virgin Islands is valid in the 11 Virgin Islands if, when the power of attorney was executed, the execution complied with: 12 (1) the law of the jurisdiction that determines the meaning and effect of 13 the power of attorney pursuant to section 5-507; or 14 (2) the requirements for a military power of attorney pursuant to 10 U.S.C. 15 Section 1044b . 16 (d) Except as otherwise provided by statute other than this part, a photocopy or 17 electronically transmitted copy of an original power of attorney has the same effect as the 18 original. 19 §5-507. MEANING AND EFFECT OF POWER OF ATTORNEY. The meaning and 20 effect of a power of attorney is determined by the law of the jurisdiction indicated in the 21 power of attorney and, in the absence of an indication of jurisdiction, by the law of the 22 jurisdiction in which the power of attorney was executed. 23
    • 298 1 §5-508. NOMINATION OF [CONSERVATOR OR GUARDIAN]; RELATION OF 2 AGENT TO COURT-APPOINTED FIDUCIARY. 3 (a) In a power of attorney, a principal may nominate a conservator or guardian of 4 the principal’s estate or guardian of the principal’s person for consideration by the court if 5 protective proceedings for the principal’s estate or person are begun after the principal 6 executes the power of attorney. Except for good cause shown or disqualification, the court 7 shall make its appointment in accordance with the principal's most recent nomination. 8 (b) If, after a principal executes a power of attorney, a court appoints a 9 conservator or guardian of the principal’s estate or other fiduciary charged with the 10 management of some or all of the principal's property, the agent is accountable to the 11 fiduciary as well as to the principal. The power of attorney is not terminated and the agent’s 12 authority continues unless limited, suspended, or terminated by the court. 13 §5-509. WHEN POWER OF ATTORNEY EFFECTIVE. 14 (a) A power of attorney is effective when executed unless the principal provides 15 in the power of attorney that it becomes effective at a future date or upon the occurrence of a 16 future event or contingency. 17 (b) If a power of attorney becomes effective upon the occurrence of a future event 18 or contingency, the principal, in the power of attorney, may authorize one or more persons to 19 determine in a writing or other record that the event or contingency has occurred. 20 (c) If a power of attorney becomes effective upon the principal’s incapacity and 21 the principal has not authorized a person to determine whether the principal is incapacitated, 22 or the person authorized is unable or unwilling to make the determination, the power of 23 attorney becomes effective upon a determination in writing or other record by:
    • 299 1 (1) a physician or licensed psychologist that the principal is incapacitated 2 within the meaning of section 102(5)(A); or 3 (2) an attorney at law, a judge, or an appropriate governmental official 4 that the principal is incapacitated within the meaning of section 102(5)(B). 5 (d) A person authorized by the principal in the power of attorney to determine 6 that the principal is incapacitated may act as the principal’s personal representative pursuant 7 to the Health Insurance Portability and Accountability Act, sections 1171 through 1179 of the 8 Social Security Act, 42 U.S.C. section 1320d, and applicable regulations, to obtain access to 9 the principal’s health-care information and communicate with the principal’s health-care 10 provider. 11 §5-510. TERMINATION OF POWER OF ATTORNEY OR AGENT’S AUTHORITY. 12 (a) A power of attorney terminates when: 13 (1) the principal dies; 14 (2) the principal becomes incapacitated, if the power of attorney is not 15 durable; 16 (3) the principal revokes the power of attorney; 17 (4) the power of attorney provides that it terminates; 18 (5) the purpose of the power of attorney is accomplished; or 19 (6) the principal revokes the agent’s authority or the agent dies, becomes 20 incapacitated, or resigns, and the power of attorney does not provide for another agent 21 to act under the power of attorney. 22 (b) An agent’s authority terminates when: 23 (1) the principal revokes the authority; 24 (2) the agent dies, becomes incapacitated, or resigns;
    • 300 1 (3) an action is filed for the divorce or annulment of the agent’s marriage 2 to the principal or their legal separation, unless the power of attorney otherwise 3 provides; or 4 (4) the power of attorney terminates. 5 (c) Unless the power of attorney otherwise provides, an agent’s authority is 6 exercisable until the authority terminates under subsection (b), notwithstanding a lapse of 7 time since the execution of the power of attorney. 8 (d) Termination of an agent’s authority or of a power of attorney is not effective 9 as to the agent or another person that, without actual knowledge of the termination, acts in 10 good faith under the power of attorney. An act so performed, unless otherwise invalid or 11 unenforceable, binds the principal and the principal’s successors in interest. 12 (e) Incapacity of the principal of a power of attorney that is not durable does not 13 revoke or terminate the power of attorney as to an agent or other person that, without actual 14 knowledge of the incapacity, acts in good faith under the power of attorney. An act so 15 performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s 16 successors in interest. 17 (f) The execution of a power of attorney does not revoke a power of attorney 18 previously executed by the principal unless the subsequent power of attorney provides that 19 the previous power of attorney is revoked or that all other powers of attorney are revoked. 20 § 5-511. COAGENTS AND SUCCESSOR AGENTS. 21 (a) A principal may designate two or more persons to act as coagents. Unless the 22 power of attorney otherwise provides, each coagent may exercise its authority independently. 23 (b) A principal may designate one or more successor agents to act if an agent 24 resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A
    • 301 1 principal may grant authority to designate one or more successor agents to an agent or other 2 person designated by name, office, or function. Unless the power of attorney otherwise 3 provides, a successor agent: 4 (1) has the same authority as that granted to the original agent; and 5 (2) may not act until all predecessor agents have resigned, died, become 6 incapacitated, are no longer qualified to serve, or have declined to serve. 7 (c) Except as otherwise provided in the power of attorney and subsection (d), an 8 agent that does not participate in or conceal a breach of fiduciary duty committed by another 9 agent, including a predecessor agent, is not liable for the actions of the other agent. 10 (d) An agent that has actual knowledge of a breach or imminent breach of 11 fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, 12 take any action reasonably appropriate in the circumstances to safeguard the principal’s best 13 interest. An agent that fails to notify the principal or take action as required by this 14 subsection is liable for the reasonably foreseeable damages that could have been avoided if 15 the agent had notified the principal or taken such action. 16 §5-512. REIMBURSEMENT AND COMPENSATION OF AGENT. Unless the power 17 of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably 18 incurred on behalf of the principal and to compensation that is reasonable under the 19 circumstances. 20 §5-513. AGENT’S ACCEPTANCE. Except as otherwise provided in the power of 21 attorney, a person accepts appointment as an agent under a power of attorney by exercising 22 authority or performing duties as an agent or by any other assertion or conduct indicating 23 acceptance. 24
    • 302 1 §5-514. AGENT’S DUTIES. 2 (a) Notwithstanding provisions in the power of attorney, an agent that has 3 accepted appointment shall: 4 (1) act in accordance with the principal’s reasonable expectations to the 5 extent actually known by the agent and, otherwise, in the principal’s best interest; 6 (2) act in good faith; and 7 (3) act only within the scope of authority granted in the power of attorney. 8 (b) Except as otherwise provided in the power of attorney, an agent that has 9 accepted appointment shall: 10 (1) act loyally for the principal’s benefit; 11 (2) act so as not to create a conflict of interest that impairs the agent’s 12 ability to act impartially in the principal’s best interest; 13 (3) act with the care, competence, and diligence ordinarily exercised by 14 agents in similar circumstances; 15 (4) keep a record of all receipts, disbursements, and transactions made on 16 behalf of the principal; 17 (5) cooperate with a person that has authority to make health-care 18 decisions for the principal to carry out the principal’s reasonable expectations to the 19 extent actually known by the agent and, otherwise, act in the principal’s best interest; 20 and 21 (6) attempt to preserve the principal’s estate plan, to the extent actually 22 known by the agent, if preserving the plan is consistent with the principal’s best 23 interest based on all relevant factors, including: 24 (A) the value and nature of the principal’s property;
    • 303 1 (B) the principal’s foreseeable obligations and need for 2 maintenance; 3 (C) minimization of taxes, including income, estate, inheritance, 4 generation-skipping transfer, and gift taxes; and 5 (D) eligibility for a benefit, a program, or assistance under a statute 6 or regulation. 7 (c) An agent that acts in good faith is not liable to any beneficiary of the 8 principal’s estate plan for failure to preserve the plan. 9 (d) An agent that acts with care, competence, and diligence for the best interest of 10 the principal is not liable solely because the agent also benefits from the act or has an 11 individual or conflicting interest in relation to the property or affairs of the principal. 12 (e) If an agent is selected by the principal because of special skills or expertise 13 possessed by the agent or in reliance on the agent’s representation that the agent has special 14 skills or expertise, the special skills or expertise must be considered in determining whether 15 the agent has acted with care, competence, and diligence under the circumstances. 16 (f) Absent a breach of duty to the principal, an agent is not liable if the value of 17 the principal’s property declines. 18 (g) An agent that exercises authority to delegate to another person the authority 19 granted by the principal or that engages another person on behalf of the principal is not liable 20 for an act, error of judgment, or default of that person if the agent exercises care, 21 competence, and diligence in selecting and monitoring the person. 22 (h) Except as otherwise provided in the power of attorney, an agent is not 23 required to disclose receipts, disbursements, or transactions conducted on behalf of the 24 principal unless ordered by a court or requested by the principal, a guardian, a conservator,
    • 304 1 another fiduciary acting for the principal, a governmental agency having authority to protect 2 the welfare of the principal, or, upon the death of the principal, by the personal representative 3 or successor in interest of the principal’s estate. If so requested, within 30 days the agent 4 shall comply with the request or provide a writing or other record substantiating why 5 additional time is needed and shall comply with the request within an additional 30 days. 6 §5-515. EXONERATION OF AGENT. A provision in a power of attorney relieving an 7 agent of liability for breach of duty is binding on the principal and the principal’s successors 8 in interest except to the extent the provision: 9 (1) relieves the agent of liability for breach of duty committed dishonestly, with 10 an improper motive, or with reckless indifference to the purposes of the power of attorney or 11 the best interest of the principal; or 12 (2) was inserted as a result of an abuse of a confidential or fiduciary relationship 13 with the principal. 14 §5-516. JUDICIAL RELIEF. 15 (a) The following persons may petition a court to construe a power of attorney or 16 review the agent’s conduct, and grant appropriate relief: 17 (1) the principal or the agent; 18 (2) a guardian, conservator, or other fiduciary acting for the principal; 19 (3) a person authorized to make health-care decisions for the principal; 20 (4) the principal’s spouse, parent, or descendant; 21 (5) an individual who would qualify as a presumptive heir of the principal; 22 (6) a person named as a beneficiary to receive any property, benefit, or 23 contractual right on the principal’s death or as a beneficiary of a trust created by or 24 for the principal that has a financial interest in the principal’s estate;
    • 305 1 (7) a governmental agency having regulatory authority to protect the 2 welfare of the principal; 3 (8) the principal’s caregiver or another person that demonstrates sufficient 4 interest in the principal’s welfare; and 5 (9) a person asked to accept the power of attorney. 6 (b) Upon motion by the principal, the court shall dismiss a petition filed under 7 this section, unless the court finds that the principal lacks capacity to revoke the agent’s 8 authority or the power of attorney. 9 §5-517. AGENT’S LIABILITY. An agent that violates this [act] is liable to the principal 10 or the principal’s successors in interest for the amount required to: 11 (1) restore the value of the principal’s property to what it would have been had 12 the violation not occurred; and 13 (2) reimburse the principal or the principal’s successors in interest for the 14 attorney’s fees and costs paid on the agent’s behalf. 15 §5-518. AGENT’S RESIGNATION; NOTICE. Unless the power of attorney provides a 16 different method for an agent’s resignation, an agent may resign by giving notice to the 17 principal and, if the principal is incapacitated: 18 (1) to the conservator or guardian, if one has been appointed for the principal, and 19 a coagent or successor agent; or 20 (2) if there is no person described in paragraph (1), to: 21 (A) the principal’s caregiver; 22 (B) another person reasonably believed by the agent to have sufficient 23 interest in the principal’s welfare; or
    • 306 1 (C) a governmental agency having authority to protect the welfare of the 2 principal. 3 §5-519. ACCEPTANCE OF AND RELIANCE UPON ACKNOWLEDGED POWER 4 OF ATTORNEY. 5 (a) For purposes of this section and section 5-520, “acknowledged” means 6 purportedly verified before a notary public or other individual authorized to take 7 acknowledgements. 8 (b) A person that in good faith accepts an acknowledged power of attorney 9 without actual knowledge that the signature is not genuine may rely upon the presumption 10 under Section 105 that the signature is genuine. 11 (c) A person that in good faith accepts an acknowledged power of attorney 12 without actual knowledge that the power of attorney is void, invalid, or terminated, that the 13 purported agent’s authority is void, invalid, or terminated, or that the agent is exceeding or 14 improperly exercising the agent’s authority may rely upon the power of attorney as if the 15 power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, 16 valid and still in effect, and the agent had not exceeded and had properly exercised the 17 authority. 18 (d) A person that is asked to accept an acknowledged power of attorney may 19 request, and rely upon, without further investigation: 20 (1) an agent’s certification under penalty of perjury of any factual matter 21 concerning the principal, agent, or power of attorney; 22 (2) an English translation of the power of attorney if the power of attorney 23 contains, in whole or in part, language other than English; and
    • 307 1 (3) an opinion of counsel as to any matter of law concerning the power of 2 attorney if the person making the request provides in a writing or other record the 3 reason for the request. 4 (e) An English translation or an opinion of counsel requested under this section 5 must be provided at the principal’s expense unless the request is made more than seven 6 business days after the power of attorney is presented for acceptance. 7 (f) For purposes of this section and section 5-520, a person that conducts 8 activities through employees is without actual knowledge of a fact relating to a power of 9 attorney, a principal, or an agent if the employee conducting the transaction involving the 10 power of attorney is without actual knowledge of the fact. 11 §5-520. LIABILITY FOR REFUSAL TO ACCEPT ACKNOWLEDGED POWER OF 12 ATTORNEY. 13 (a) Except as otherwise provided in subsection (b): 14 (1) a person shall either accept an acknowledged power of attorney or 15 request a certification, a translation, or an opinion of counsel under section5-519(d) 16 no later than seven business days after presentation of the power of attorney for 17 acceptance; 18 (2) if a person requests a certification, a translation, or an opinion of 19 counsel under section5-519(d), the person shall accept the power of attorney no later 20 than five business days after receipt of the certification, translation, or opinion of 21 counsel; and 22 (3) a person may not require an additional or different form of power of 23 attorney for authority granted in the power of attorney presented. 24 (b) A person is not required to accept an acknowledged power of attorney if:
    • 308 1 (1) the person is not otherwise required to engage in a transaction with the 2 principal in the same circumstances; 3 (2) engaging in a transaction with the agent or the principal in the same 4 circumstances would be inconsistent with federal law; 5 (3) the person has actual knowledge of the termination of the agent’s 6 authority or of the power of attorney before exercise of the power; 7 (4) a request for a certification, a translation, or an opinion of counsel 8 under section 5-519(d) is refused; 9 (5) the person in good faith believes that the power is not valid or that the 10 agent does not have the authority to perform the act requested, whether or not a 11 certification, a translation, or an opinion of counsel under section 5-519(d) has been 12 requested or provided; or 13 (6) the person makes, or has actual knowledge that another person has 14 made, a report to the Department of Human Services stating a good faith belief that 15 the principal may be subject to physical or financial abuse, neglect, exploitation, or 16 abandonment by the agent or a person acting for or with the agent. 17 (c) A person that refuses in violation of this section to accept an acknowledged 18 power of attorney is subject to: 19 (1) a court order mandating acceptance of the power of attorney; and 20 (2) liability for reasonable attorney’s fees and costs incurred in any action 21 or proceeding that confirms the validity of the power of attorney or mandates 22 acceptance of the power of attorney. 23 §5-521. PRINCIPLES OF LAW AND EQUITY. Unless displaced by a provision of this 24 part, the principles of law and equity supplement this part.
    • 309 1 §5-522. LAWS APPLICABLE TO FINANCIAL INSTITUTIONS AND ENTITIES. 2 This part does not supersede any other law applicable to financial institutions or other 3 entities, and the other law controls if inconsistent with this part. 4 §5-523. REMEDIES UNDER OTHER LAW. The remedies under this part are not 5 exclusive and do not abrogate any right or remedy under the law of the Virgin Islands other 6 than this part. 7 PART 6 8 §5-601. AUTHORITY THAT REQUIRES SPECIFIC GRANT; GRANT OF 9 GENERAL AUTHORITY. 10 (a) An agent under a power of attorney may do the following on behalf of the 11 principal or with the principal’s property only if the power of attorney expressly grants the 12 agent the authority and exercise of the authority is not otherwise prohibited by another 13 agreement or instrument to which the authority or property is subject: 14 (1) create, amend, revoke, or terminate an inter vivos trust; 15 (2) make a gift; 16 (3) create or change rights of survivorship; 17 (4) create or change a beneficiary designation; 18 (5) delegate authority granted under the power of attorney; or 19 (6) waive the principal’s right to be a beneficiary of a joint and survivor 20 annuity, including a survivor benefit under a retirement plan. 21 (b) Notwithstanding a grant of authority to do an act described in subsection (a), 22 unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or 23 descendant of the principal, may not exercise authority under a power of attorney to create in 24 the agent, or in an individual to whom the agent owes a legal obligation of support, an
    • 310 1 interest in the principal’s property, whether by gift, right of survivorship, beneficiary 2 designation, disclaimer, or otherwise. 3 (c) Subject to subsections (a), (b), (d), and (e), if a power of attorney grants to an 4 agent authority to do all acts that a principal could do, the agent has the general authority 5 described in Sections 5-604 through 5-616. 6 (d) Unless the power of attorney otherwise provides, a grant of authority to make 7 a gift is subject to section 5-617. 8 (e) Subject to subsections (a), (b), and (d), if the subjects over which authority is 9 granted in a power of attorney are similar or overlap, the broadest authority controls. 10 (f) Authority granted in a power of attorney is exercisable with respect to 11 property that the principal has when the power of attorney is executed or acquires later, 12 whether or not the property is located in the Virgin Islands and whether or not the authority is 13 exercised or the power of attorney is executed in the Virgin Islands. 14 (g) An act performed by an agent pursuant to a power of attorney has the same 15 effect and inures to the benefit of and binds the principal and the principal’s successors in 16 interest as if the principal had performed the act. 17 §5-602. INCORPORATION OF AUTHORITY. 18 (a) An agent has authority described in this article if the power of attorney refers 19 to general authority with respect to the descriptive term for the subjects stated in sections 5- 20 604 through 5-617 or cites the section in which the authority is described. 21 (b) A reference in a power of attorney to general authority with respect to the 22 descriptive term for a subject in sections 5-604 through 5-617 or a citation to a section of 23 sections 5-604 through 5-617 incorporates the entire section as if it were set out in full in the 24 power of attorney.
    • 311 1 (c) A principal may modify authority incorporated by reference. 2 §5-603. CONSTRUCTION OF AUTHORITY GENERALLY. Except as otherwise 3 provided in the power of attorney, by executing a power of attorney that incorporates by 4 reference a subject described in sections 5-604 through 5-617 or that grants to an agent 5 authority to do all acts that a principal could do pursuant to section 5-601(c), a principal 6 authorizes the agent, with respect to that subject, to: 7 (1) demand, receive, and obtain by litigation or otherwise, money or another thing 8 of value to which the principal is, may become, or claims to be entitled, and conserve, invest, 9 disburse, or use anything so received or obtained for the purposes intended; 10 (2) contract in any manner with any person, on terms agreeable to the agent, to 11 accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, 12 restate, release, or modify the contract or another contract made by or on behalf of the 13 principal; 14 (3) execute, acknowledge, seal, deliver, file, or record any instrument or 15 communication the agent considers desirable to accomplish a purpose of a transaction, 16 including creating at any time a schedule listing some or all of the principal’s property and 17 attaching it to the power of attorney; 18 (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, 19 or propose or accept a compromise with respect to a claim existing in favor of or against the 20 principal or intervene in litigation relating to the claim; 21 (5) seek on the principal’s behalf the assistance of a court or other governmental 22 agency to carry out an act authorized in the power of attorney; 23 (6) engage, compensate, and discharge an attorney, accountant, discretionary 24 investment manager, expert witness, or other advisor;
    • 312 1 (7) prepare, execute, and file a record, report, or other document to safeguard or 2 promote the principal’s interest under a statute or regulation; 3 (8) communicate with any representative or employee of a government or 4 governmental subdivision, agency, or instrumentality, on behalf of the principal; 5 (9) access communications intended for, and communicate on behalf of the 6 principal, whether by mail, electronic transmission, telephone, or other means; and 7 (10) do any lawful act with respect to the subject and all property related to the 8 subject. 9 §5-604. REAL PROPERTY. Unless the power of attorney otherwise provides, language in 10 a power of attorney granting general authority with respect to real property authorizes the 11 agent to: 12 (1) demand, buy, lease, receive, accept as a gift or as security for an extension of 13 credit, or otherwise acquire or reject an interest in real property or a right incident to real 14 property; 15 (2) sell; exchange; convey with or without covenants, representations, or 16 warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent 17 to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other 18 governmental permits; plat or consent to platting; develop; grant an option concerning; lease; 19 sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant 20 or dispose of an interest in real property or a right incident to real property; 21 (3) pledge or mortgage an interest in real property or right incident to real 22 property as security to borrow money or pay, renew, or extend the time of payment of a debt 23 of the principal or a debt guaranteed by the principal;
    • 313 1 (4) release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed 2 of trust, conditional sale contract, encumbrance, lien, or other claim to real property which 3 exists or is asserted; 4 (5) manage or conserve an interest in real property or a right incident to real 5 property owned or claimed to be owned by the principal, including: 6 (A) insuring against liability or casualty or other loss; 7 (B) obtaining or regaining possession of or protecting the interest or right 8 by litigation or otherwise; 9 (C) paying, assessing, compromising, or contesting taxes or assessments or 10 applying for and receiving refunds in connection with them; and 11 (D) purchasing supplies, hiring assistance or labor, and making repairs or 12 alterations to the real property; 13 (6) use, develop, alter, replace, remove, erect, or install structures or other 14 improvements upon real property in or incident to which the principal has, or claims to have, 15 an interest or right; 16 (7) participate in a reorganization with respect to real property or an entity that 17 owns an interest in or right incident to real property and receive, and hold, and act with 18 respect to stocks and bonds or other property received in a plan of reorganization, including: 19 (A) selling or otherwise disposing of them; 20 (B) exercising or selling an option, right of conversion, or similar right 21 with respect to them; and 22 (C) exercising any voting rights in person or by proxy; 23 (8) change the form of title of an interest in or right incident to real property; and
    • 314 1 (9) dedicate to public use, with or without consideration, easements or other real 2 property in which the principal has, or claims to have, an interest. 3 §5-605. TANGIBLE PERSONAL PROPERTY. Unless the power of attorney otherwise 4 provides, language in a power of attorney granting general authority with respect to tangible 5 personal property authorizes the agent to: 6 (1) demand, buy, receive, accept as a gift or as security for an extension of credit, 7 or otherwise acquire or reject ownership or possession of tangible personal property or an 8 interest in tangible personal property; 9 (2) sell; exchange; convey with or without covenants, representations, or 10 warranties; quitclaim; release; surrender; create a security interest in; grant options 11 concerning; lease; sublease; or, otherwise dispose of tangible personal property or an interest 12 in tangible personal property; 13 (3) grant a security interest in tangible personal property or an interest in tangible 14 personal property as security to borrow money or pay, renew, or extend the time of payment 15 of a debt of the principal or a debt guaranteed by the principal; 16 (4) release, assign, satisfy, or enforce by litigation or otherwise, a security 17 interest, lien, or other claim on behalf of the principal, with respect to tangible personal 18 property or an interest in tangible personal property; 19 (5) manage or conserve tangible personal property or an interest in tangible 20 personal property on behalf of the principal, including: 21 (A) insuring against liability or casualty or other loss; 22 (B) obtaining or regaining possession of or protecting the property or 23 interest, by litigation or otherwise;
    • 315 1 (C) paying, assessing, compromising, or contesting taxes or assessments or 2 applying for and receiving refunds in connection with taxes or assessments; 3 (D) moving the property from place to place; 4 (E) storing the property for hire or on a gratuitous bailment; and 5 (F) using and making repairs, alterations, or improvements to the property; 6 and 7 (6) change the form of title of an interest in tangible personal property. 8 §6-606. STOCKS AND BONDS. Unless the power of attorney otherwise provides, 9 language in a power of attorney granting general authority with respect to stocks and bonds 10 authorizes the agent to: 11 (1) buy, sell, and exchange stocks and bonds; 12 (2) establish, continue, modify, or terminate an account with respect to stocks and 13 bonds; 14 (3) pledge stocks and bonds as security to borrow, pay, renew, or extend the time 15 of payment of a debt of the principal; 16 (4) receive certificates and other evidences of ownership with respect to stocks 17 and bonds; and 18 (5) exercise voting rights with respect to stocks and bonds in person or by proxy, 19 enter into voting trusts, and consent to limitations on the right to vote. 20 §5-607. COMMODITIES AND OPTIONS. Unless the power of attorney otherwise 21 provides, language in a power of attorney granting general authority with respect to 22 commodities and options authorizes the agent to: 23 (1) buy, sell, exchange, assign, settle, and exercise commodity futures contracts 24 and call or put options on stocks or stock indexes traded on a regulated option exchange; and
    • 316 1 (2) establish, continue, modify, and terminate option accounts. 2 §5-608. BANKS AND OTHER FINANCIAL INSTITUTIONS. Unless the power of 3 attorney otherwise provides, language in a power of attorney granting general authority with 4 respect to banks and other financial institutions authorizes the agent to: 5 (1) continue, modify, and terminate an account or other banking arrangement 6 made by or on behalf of the principal; 7 (2) establish, modify, and terminate an account or other banking arrangement 8 with a bank, trust company, savings and loan association, credit union, thrift company, 9 brokerage firm, or other financial institution selected by the agent; 10 (3) contract for services available from a financial institution, including renting a 11 safe deposit box or space in a vault; 12 (4) withdraw, by check, order, electronic funds transfer, or otherwise, money or 13 property of the principal deposited with or left in the custody of a financial institution; 14 (5) receive statements of account, vouchers, notices, and similar documents from 15 a financial institution and act with respect to them; 16 (6) enter a safe deposit box or vault and withdraw or add to the contents; 17 (7) borrow money and pledge as security personal property of the principal 18 necessary to borrow money or pay, renew, or extend the time of payment of a debt of the 19 principal or a debt guaranteed by the principal; 20 (8) make, assign, draw, endorse, discount, guarantee, and negotiate promissory 21 notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable 22 to the principal or the principal’s order, transfer money, receive the cash or other proceeds of 23 those transactions, and accept a draft drawn by a person upon the principal and pay it when 24 due;
    • 317 1 (9) receive for the principal and act upon a sight draft, warehouse receipt, or other 2 document of title whether tangible or electronic, or other negotiable or nonnegotiable 3 instrument; 4 (10) apply for, receive, and use letters of credit, credit and debit cards, electronic 5 transaction authorizations, and traveler’s checks from a financial institution and give an 6 indemnity or other agreement in connection with letters of credit; and 7 (11) consent to an extension of the time of payment with respect to commercial 8 paper or a financial transaction with a financial institution. 9 §5-609. OPERATION OF ENTITY OR BUSINESS. Subject to the terms of a document 10 or an agreement governing an entity or an entity ownership interest, and unless the power of 11 attorney otherwise provides, language in a power of attorney granting general authority with 12 respect to operation of an entity or business authorizes the agent to: 13 (1) operate, buy, sell, enlarge, reduce, or terminate an ownership interest; 14 (2) perform a duty or discharge a liability and exercise in person or by proxy a 15 right, power, privilege, or option that the principal has, may have, or claims to have; 16 (3) enforce the terms of an ownership agreement; 17 (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, 18 or propose or accept a compromise with respect to litigation to which the principal is a party 19 because of an ownership interest; 20 (5) exercise in person or by proxy, or enforce by litigation or otherwise, a right, 21 power, privilege, or option the principal has or claims to have as the holder of stocks and 22 bonds;
    • 318 1 (6) initiate, participate in, submit to alternative dispute resolution, settle, oppose, 2 or propose or accept a compromise with respect to litigation to which the principal is a party 3 concerning stocks and bonds; 4 (7) with respect to an entity or business owned solely by the principal: 5 (A) continue, modify, renegotiate, extend, and terminate a contract made 6 by or on behalf of the principal with respect to the entity or business before execution 7 of the power of attorney; 8 (B) determine: 9 (i) the location of its operation; 10 (ii) the nature and extent of its business; 11 (iii) the methods of manufacturing, selling, merchandising, 12 financing, accounting, and advertising employed in its operation; 13 (iv) the amount and types of insurance carried; and 14 (v) the mode of engaging, compensating, and dealing with its 15 employees and accountants, attorneys, or other advisors; 16 (C) change the name or form of organization under which the entity or 17 business is operated and enter into an ownership agreement with other persons to take 18 over all or part of the operation of the entity or business; and 19 (D) demand and receive money due or claimed by the principal or on the 20 principal’s behalf in the operation of the entity or business and control and disburse 21 the money in the operation of the entity or business; 22 (8) put additional capital into an entity or business in which the principal has an 23 interest;
    • 319 1 (9) join in a plan of reorganization, consolidation, conversion, domestication, or 2 merger of the entity or business; 3 (10) sell or liquidate all or part of an entity or business; 4 (11) establish the value of an entity or business under a buy-out agreement to 5 which the principal is a party; 6 (12) prepare, sign, file, and deliver reports, compilations of information, returns, or 7 other papers with respect to an entity or business and make related payments; and 8 (13) pay, compromise, or contest taxes, assessments, fines, or penalties and 9 perform any other act to protect the principal from illegal or unnecessary taxation, 10 assessments, fines, or penalties, with respect to an entity or business, including attempts to 11 recover, in any manner permitted by law, money paid before or after the execution of the 12 power of attorney. 13 §5-610. INSURANCE AND ANNUITIES. Unless the power of attorney otherwise 14 provides, language in a power of attorney granting general authority with respect to insurance 15 and annuities authorizes the agent to: 16 (1) continue, pay the premium or make a contribution on, modify, exchange, 17 rescind, release, or terminate a contract procured by or on behalf of the principal which 18 insures or provides an annuity to either the principal or another person, whether or not the 19 principal is a beneficiary under the contract; 20 (2) procure new, different, and additional contracts of insurance and annuities for 21 the principal and the principal’s spouse, children, and other dependents, and select the 22 amount, type of insurance or annuity, and mode of payment; 23 (3) pay the premium or make a contribution on, modify, exchange, rescind, 24 release, or terminate a contract of insurance or annuity procured by the agent;
    • 320 1 (4) apply for and receive a loan secured by a contract of insurance or annuity; 2 (5) surrender and receive the cash surrender value on a contract of insurance or 3 annuity; 4 (6) exercise an election; 5 (7) exercise investment powers available under a contract of insurance or annuity; 6 (8) change the manner of paying premiums on a contract of insurance or annuity; 7 (9) change or convert the type of insurance or annuity with respect to which the 8 principal has or claims to have authority described in this section; 9 (10) apply for and procure a benefit or assistance under a statute or regulation to 10 guarantee or pay premiums of a contract of insurance on the life of the principal; 11 (11) collect, sell, assign, hypothecate, borrow against, or pledge the interest of the 12 principal in a contract of insurance or annuity; 13 (12) select the form and timing of the payment of proceeds from a contract of 14 insurance or annuity; and 15 (13) pay, from proceeds or otherwise, compromise or contest, and apply for 16 refunds in connection with, a tax or assessment levied by a taxing authority with respect to a 17 contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or 18 assessment. 19 §5-611. ESTATES, TRUSTS, AND OTHER BENEFICIAL INTERESTS. 20 (a) In this section, “estate, trust, or other beneficial interest” means a trust, 21 probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which 22 the principal is, may become, or claims to be, entitled to a share or payment.
    • 321 1 (b) Unless the power of attorney otherwise provides, language in a power of 2 attorney granting general authority with respect to estates, trusts, and other beneficial 3 interests authorizes the agent to: 4 (1) accept, receive, receipt for, sell, assign, pledge, or exchange a share in 5 or payment from an estate, trust, or other beneficial interest; 6 (2) demand or obtain money or another thing of value to which the 7 principal is, may become, or claims to be, entitled by reason of an estate, trust, or 8 other beneficial interest, by litigation or otherwise; 9 (3) exercise for the benefit of the principal a presently exercisable general 10 power of appointment held by the principal; 11 (4) initiate, participate in, submit to alternative dispute resolution, settle, 12 oppose, or propose or accept a compromise with respect to litigation to ascertain the 13 meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or 14 transaction affecting the interest of the principal; 15 (5) initiate, participate in, submit to alternative dispute resolution, settle, 16 oppose, or propose or accept a compromise with respect to litigation to remove, 17 substitute, or surcharge a fiduciary; 18 (6) conserve, invest, disburse, or use anything received for an authorized 19 purpose; 20 (7) transfer an interest of the principal in real property, stocks and bonds, 21 accounts with financial institutions or securities intermediaries, insurance, annuities, 22 and other property to the trustee of a revocable trust created by the principal as settler; 23 and
    • 322 1 (8) reject, renounce, disclaim, release, or consent to a reduction in or 2 modification of a share in or payment from an estate, trust, or other beneficial 3 interest. 4 §5-612. CLAIMS AND LITIGATION. Unless the power of attorney otherwise provides, 5 language in a power of attorney granting general authority with respect to claims and 6 litigation authorizes the agent to: 7 (1) assert and maintain before a court or administrative agency a claim, claim for 8 relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to 9 recover property or other thing of value, recover damages sustained by the principal, 10 eliminate or modify tax liability, or seek an injunction, specific performance, or other relief; 11 (2) bring an action to determine adverse claims or intervene or otherwise 12 participate in litigation; 13 (3) seek an attachment, garnishment, order of arrest, or other preliminary, 14 provisional, or intermediate relief and use an available procedure to effect or satisfy a 15 judgment, order, or decree; 16 (4) make or accept a tender, offer of judgment, or admission of facts, submit a 17 controversy on an agreed statement of facts, consent to examination, and bind the principal in 18 litigation; 19 (5) submit to alternative dispute resolution, settle, and propose or accept a 20 compromise; 21 (6) waive the issuance and service of process upon the principal, accept service of 22 process, appear for the principal, designate persons upon which process directed to the 23 principal may be served, execute and file or deliver stipulations on the principal’s behalf, 24 verify pleadings, seek appellate review, procure and give surety and indemnity bonds,
    • 323 1 contract and pay for the preparation and printing of records and briefs, receive, execute, and 2 file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, 3 notice, agreement, or other instrument in connection with the prosecution, settlement, or 4 defense of a claim or litigation; 5 (7) act for the principal with respect to bankruptcy or insolvency, whether 6 voluntary or involuntary, concerning the principal or some other person, or with respect to a 7 reorganization, receivership, or application for the appointment of a receiver or trustee 8 which affects an interest of the principal in property or other thing of value; 9 (8) pay a judgment, award, or order against the principal or a settlement made in 10 connection with a claim or litigation; and 11 (9) receive money or other thing of value paid in settlement of or as proceeds of a 12 claim or litigation. 13 §5-613. PERSONAL AND FAMILY MAINTENANCE. 14 (a) Unless the power of attorney otherwise provides, language in a power of 15 attorney granting general authority with respect to personal and family maintenance 16 authorizes the agent to: 17 (1) perform the acts necessary to maintain the customary standard of 18 living of the principal, the principal’s spouse, and the following individuals, whether 19 living when the power of attorney is executed or later born: 20 (A) the principal’s children; 21 (B) other individuals legally entitled to be supported by the 22 principal; and 23 (C) the individuals whom the principal has customarily supported 24 or indicated the intent to support;
    • 324 1 (2) make periodic payments of child support and other family 2 maintenance required by a court or governmental agency or an agreement to which 3 the principal is a party; 4 (3) provide living quarters for the individuals described in paragraph (1) 5 by: 6 (A) purchase, lease, or other contract; or 7 (B) paying the operating costs, including interest, amortization 8 payments, repairs, improvements, and taxes, for premises owned by the 9 principal or occupied by those individuals; 10 (4) provide normal domestic help, usual vacations and travel expenses, 11 and funds for shelter, clothing, food, appropriate education, including postsecondary 12 and vocational education, and other current living costs for the individuals described 13 in paragraph (1); 14 (5) pay expenses for necessary health care and custodial care on behalf of 15 the individuals described in paragraph (1); 16 (6) act as the principal’s personal representative pursuant to the Health 17 Insurance Portability and Accountability Act, sections 1171 through 1179 of the 18 Social Security Act, 42 U.S.C. section 1320d and applicable regulations, in making 19 decisions related to the past, present, or future payment for the provision of health 20 care consented to by the principal or anyone authorized under the law of the Virgin 21 Islands to consent to health care on behalf of the principal; 22 (7) continue any provision made by the principal for automobiles or other 23 means of transportation, including registering, licensing, insuring, and replacing 24 them, for the individuals described in paragraph (1);
    • 325 1 (8) maintain credit and debit accounts for the convenience of the 2 individuals described in paragraph (1) and open new accounts; and 3 (9) continue payments incidental to the membership or affiliation of the 4 principal in a religious institution, club, society, order, or other organization or to 5 continue contributions to those organizations. 6 (b) Authority with respect to personal and family maintenance is neither 7 dependent upon, nor limited by, authority that an agent may or may not have with respect to 8 gifts under this part. 9 §5-614. BENEFITS FROM GOVERNMENTAL PROGRAMS OR CIVIL OR 10 MILITARY SERVICE. 11 (a) In this section, “benefits from governmental programs or civil or military 12 service” means any benefit, program or assistance provided under a statute or regulation 13 including Social Security, Medicare, and Medicaid. 14 (b) Unless the power of attorney otherwise provides, language in a power of 15 attorney granting general authority with respect to benefits from governmental programs or 16 civil or military service authorizes the agent to: 17 (1) execute vouchers in the name of the principal for allowances and 18 reimbursements payable by the United States or a foreign government or by a state or 19 subdivision of a state to the principal, including allowances and reimbursements for 20 transportation of the individuals described in section 5-613(a)(1), and for shipment of 21 their household effects; 22 (2) take possession and order the removal and shipment of property of the 23 principal from a post, warehouse, depot, dock, or other place of storage or 24 safekeeping, either governmental or private, and execute and deliver a release,
    • 326 1 voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that 2 purpose; 3 (3) enroll in, apply for, select, reject, change, amend, or discontinue, on 4 the principal’s behalf, a benefit or program; 5 (4) prepare, file, and maintain a claim of the principal for a benefit or 6 assistance, financial or otherwise, to which the principal may be entitled under a 7 statute or regulation; 8 (5) initiate, participate in, submit to alternative dispute resolution, settle, 9 oppose, or propose or accept a compromise with respect to litigation concerning any 10 benefit or assistance the principal may be entitled to receive under a statute or 11 regulation; and 12 (6) receive the financial proceeds of a claim described in paragraph (4) 13 and conserve, invest, disburse, or use for a lawful purpose anything so received. 14 §5-615. RETIREMENT PLANS. 15 (a) In this section, “retirement plan” means a plan or account created by an 16 employer, the principal, or another individual to provide retirement benefits or deferred 17 compensation of which the principal is a participant, beneficiary, or owner, including a plan 18 or account under the following sections of the Internal Revenue Code: 19 (1) an individual retirement account under Internal Revenue Code section 20 408, 26 U.S.C. Section 408 ; 21 (2) a Roth individual retirement account under Internal Revenue Code 22 section 408A, 26 U.S.C. section 408A; 23 (3) a deemed individual retirement account under Internal Revenue Code 24 section 408(q), 26 U.S.C. section 408(q) , as amended;
    • 327 1 (4) an annuity or mutual fund custodial account under Internal Revenue 2 Code section 403(b), 26 U.S.C. Section 403(b) ; 3 (5) a pension, profit-sharing, stock bonus, or other retirement plan 4 qualified under Internal Revenue Code section 401(a), 26 U.S.C. Section 401(a) ; 5 (6) a plan under Internal Revenue Code section 457(b), 26 U.S.C. section 6 457(b); and 7 (7) a nonqualified deferred compensation plan under Internal Revenue 8 Code section 409A, 26 U.S.C. section 409A , as amended. 9 (b) Unless the power of attorney otherwise provides, language in a power of 10 attorney granting general authority with respect to retirement plans authorizes the agent to: 11 (1) select the form and timing of payments under a retirement plan and 12 withdraw benefits from a plan; 13 (2) make a rollover, including a direct trustee-to-trustee rollover, of 14 benefits from one retirement plan to another; 15 (3) establish a retirement plan in the principal’s name; 16 (4) make contributions to a retirement plan; 17 (5) exercise investment powers available under a retirement plan; and 18 (6) borrow from, sell assets to, or purchase assets from a retirement plan. 19 §5-616. TAXES. Unless the power of attorney otherwise provides, language in a 20 power of attorney granting general authority with respect to taxes authorizes the agent to: 21 (1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll, 22 property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, 23 requests for extension of time, petitions regarding tax matters, and any other tax-related 24 documents, including receipts, offers, waivers, consents, including consents and agreements
    • 328 1 under Internal Revenue Code section 2032A, 26 U.S.C. section 2032A, as amended, closing 2 agreements, and any power of attorney required by the Internal Revenue Service or other 3 taxing authority with respect to a tax year upon which the statute of limitations has not run 4 and the following 25 tax years; 5 (2) pay taxes due, collect refunds, post bonds, receive confidential information, 6 and contest deficiencies determined by the Internal Revenue Service or other taxing 7 authority; 8 (3) exercise any election available to the principal under federal, state, local, or 9 foreign tax law; and 10 (4) act for the principal in all tax matters for all periods before the Internal 11 Revenue Service, or other taxing authority. 12 §5-617. GIFTS. 13 (a) In this section, a gift “for the benefit of” a person includes a gift to a trust, an 14 account under the Uniform Transfers to Minors Act, and a tuition savings account or prepaid 15 tuition plan as defined under Internal Revenue Code section 529, 26 U.S.C. section 529. 16 (b) Unless the power of attorney otherwise provides, language in a power of 17 attorney granting general authority with respect to gifts authorizes the agent only to: 18 (1) make outright to, or for the benefit of, a person, a gift of any of the 19 principal’s property, including by the exercise of a presently exercisable general 20 power of appointment held by the principal, in an amount per donee not to exceed the 21 annual dollar limits of the federal gift tax exclusion under Internal Revenue Code 22 section 2503(b), 26 U.S.C. section 2503(b) without regard to whether the federal gift 23 tax exclusion applies to the gift, or if the principal’s spouse agrees to consent to a 24 split gift pursuant to Internal Revenue Code section 2513, 26 U.S.C. 2513 in an 25 amount per donee not to exceed twice the annual federal gift tax exclusion limit; and
    • 329 1 (2) consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C. 2 section 2513, to the splitting of a gift made by the principal’s spouse in an amount per 3 donee not to exceed the aggregate annual gift tax exclusions for both spouses. 4 (c) An agent may make a gift of the principal’s property only as the agent 5 determines is consistent with the principal’s objectives if actually known by the agent and, if 6 unknown, as the agent determines is consistent with the principal’s best interest based on all 7 relevant factors, including: 8 (1) the value and nature of the principal’s property; 9 (2) the principal’s foreseeable obligations and need for maintenance; 10 (3) minimization of taxes, including income, estate, inheritance, 11 generation-skipping transfer, and gift taxes; 12 (4) eligibility for a benefit, a program, or assistance under a statute or 13 regulation; and 14 (5) the principal’s personal history of making or joining in making gifts. 15 PART 7 16 RESERVED FOR STATUTORY FORM POWER OF ATTORNEY FORM Provisions 17 PART 8 18 MISCELLANEOUS PROVISIONS 19 §5- 801. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and 20 construing this article, consideration must be given to the need to promote uniformity of the 21 law with respect to its subject matter among the states that enact it. 22 § 5-802. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND 23 NATIONAL COMMERCE ACT. This article modifies, limits, and supersedes the federal 24 Electronic Signatures in Global and National Commerce Act,15 U.S.C. Section 7001 et seq.,
    • 330 1 but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. Section 7001(c), 2 or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 3 15 U.S.C. Section 7003(b). 4 §5-803. EFFECT ON EXISTING POWERS OF ATTORNEY. Except as otherwise 5 provided this article on the effective date of this article 6 (1) this articles applies to a power of attorney created before, on, or after the 7 effective date of this article; 8 (2) this article applies to a judicial proceeding concerning a power of attorney 9 commenced on or after the effective date of this article; 10 (3) this article applies to a judicial proceeding concerning a power of attorney 11 commenced before the effective date of this article unless the court finds that application of a 12 provision of this [act] would substantially interfere with the effective conduct of the judicial 13 proceeding or prejudice the rights of a party, in which case that provision does not apply and 14 the superseded law applies; and 15 (4) an act done before the effective date of this article is not affected by this 16 article. 17 ARTICLE VI 18 NONPROBATE TRANSFERS ON DEATH (1989) 19 PART 1 20 PROVISIONS RELATING TO EFFECT OF DEATH 21 PART 1 22 Section 6-101. Nonprobate Transfers On Death. 23 A provision for a nonprobate transfer on death in an insurance policy, contract of 24 employment, bond, mortgage, promissory note, certificated or uncertificated security,
    • 331 1 account agreement, custodial agreement, deposit agreement, compensation plan, pension 2 plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, 3 marital property agreement, or other written instrument of a similar nature is 4 nontestamentary. This subsection includes a written provision that: 5 (1) money or other benefits due to, controlled by, or owned by a decedent before 6 death must be paid after the decedent's death to a person whom the decedent designates either 7 in the instrument or in a separate writing, including a will, executed either before or at the 8 same time as the instrument, or later; 9 (2) money due or to become due under the instrument ceases to be payable in the 10 event of death of the promisee or the promisor before payment or demand; or 11 (3) any property controlled by or owned by the decedent before death which is the 12 subject of the instrument passes to a person the decedent designates either in the instrument 13 or in a separate writing, including a will, executed either before or at the same time as the 14 instrument, or later. 15 §6-102. Liability Of Nonprobate Transferees For Creditor Claims And Statutory 16 Allowances. 17 (a) In this section, “nonprobate transfer” means a valid transfer effective at death, 18 other than a transfer of a survivorship interest in a joint tenancy of real estate, by a transferor 19 whose last domicile was in the Virgin Islands to the extent that the transferor immediately 20 before death had power, acting alone, to prevent the transfer by revocation or withdrawal and 21 instead to use the property for the benefit of the transferor or apply it to discharge claims 22 against the transferor’s probate estate. 23 (b) Except as otherwise provided by statute, a transferee of a nonprobate transfer 24 is subject to liability to any probate estate of the decedent for allowed claims against
    • 332 1 decedent’s probate that estate and statutory allowances to the decedent’s spouse and children 2 to the extent the estate is insufficient to satisfy those claims and allowances. The liability of 3 a nonprobate transferee may not exceed the value of nonprobate transfers received or 4 controlled by that transferee. 5 (c) Nonprobate transferees are liable for the insufficiency described in subsection 6 (b) in the following order of priority: 7 (1) a transferee designated in the decedent’s will or any other governing 8 instrument, as provided in the instrument; 9 (2) the trustee of a trust serving as the principal nonprobate instrument in 10 the decedent’s estate plan as shown by its designation as devisee of the decedent’s 11 residuary estate or by other facts or circumstances, to the extent of the value of the 12 nonprobate transfer received or controlled; 13 (3) other nonprobate transferees, in proportion to the values received. 14 (d) Unless otherwise provided by the trust instrument, interests of beneficiaries in 15 all trusts incurring liabilities under this section abate as necessary to satisfy the liability, as if 16 all of the trust instruments were a single will and the interests were devises under it. 17 (e) A provision made in one instrument may direct the apportionment of the 18 liability among the nonprobate transferees taking under that or any other governing 19 instrument. If a provision in one instrument conflicts with a provision in another, the later 20 one prevails. 21 (f) Upon due notice to a nonprobate transferee, the liability imposed by this 22 section is enforceable in proceedings in the Virgin Islands, whether or not the transferee is 23 located in the Virgin Islands.
    • 333 1 (g) A proceeding under this section may not be commenced unless the personal 2 representative of the decedent’s estate has received a written demand for the proceeding from 3 the surviving spouse or a child, to the extent that statutory allowances are affected, or a 4 creditor. If the personal representative declines or fails to commence a proceeding after 5 demand, a person making demand may commence the proceeding in the name of the 6 decedent’s estate, at the expense of the person making the demand and not of the estate. A 7 personal representative who declines in good faith to commence a requested proceeding 8 incurs no personal liability for declining. 9 (h) A proceeding under this section must be commenced within one year after the 10 decedent’s death, but a proceeding on behalf of a creditor whose claim was allowed after 11 proceedings challenging disallowance of the claim may be commenced within 60 days after 12 final allowance of the claim. 13 (i) Unless a written notice asserting that a decedent’s probate estate is 14 nonexistent or insufficient to pay allowed claims and statutory allowances has been received 15 from the decedent’s personal representative, the following rules apply: 16 (1) Payment or delivery of assets by a financial institution, registrar, or 17 other obligor, to a nonprobate transferee in accordance with the terms of the 18 governing instrument controlling the transfer releases the obligor from all claims for 19 amounts paid or assets delivered. 20 (2) A trustee receiving or controlling a nonprobate transfer is released 21 from liability under this section with respect to any assets distributed to the trust’s 22 beneficiaries. Each beneficiary to the extent of the distribution received becomes 23 liable for the amount of the trustee’s liability attributable to assets received by the 24 beneficiary.
    • 334 1 PART 2 2 MULTIPLE-PERSON ACCOUNTS 3 Subpart 1. Definitions And General Provisions 4 §6-201. Definitions. 5 In this part: 6 (1) "Account" means a contract of deposit between a depositor and a financial 7 institution, and includes a checking account, savings account, certificate of deposit, and share 8 account. 9 (2) "Agent" means a person authorized to make account transactions for a party. 10 (3) "Beneficiary" means a person named as one to whom sums on deposit in an 11 account are payable on request after death of all parties or for whom a party is named as 12 trustee. 13 (4) "Financial institution" means an organization authorized to do business under 14 state or federal laws relating to financial institutions, and includes a bank, trust company, 15 savings bank, building and loan association, savings and loan company or association, and 16 credit union. 17 (5) "Multiple-party account" means an account payable on request to one or more 18 of two or more parties, whether or not a right of survivorship is mentioned. 19 (6) "Party" means a person who, by the terms of an account, has a present right, 20 subject to request, to payment from the account other than as a beneficiary or agent. 21 (7) "Payment" of sums on deposit includes withdrawal, payment to a party or 22 third person pursuant to check or other request, and a pledge of sums on deposit by a party, 23 or a set-off, reduction, or other disposition of all or part of an account pursuant to a pledge. 24 (8) "POD designation" means the designation of (i) a beneficiary in an account
    • 335 1 payable on request to one party during the party's lifetime and on the party's death to one or 2 more beneficiaries, or to one or more parties during their lifetimes and on death of all of them 3 to one or more beneficiaries, or (ii) a beneficiary in an account in the name of one or more 4 parties as trustee for one or more beneficiaries if the relationship is established by the terms 5 of the account and there is no subject of the trust other than the sums on deposit in the 6 account, whether or not payment to the beneficiary is mentioned. 7 (9) "Receive," as it relates to notice to a financial institution, means receipt in the 8 office or branch office of the financial institution in which the account is established, but if 9 the terms of the account require notice at a particular place, in the place required. 10 (10) "Request" means a request for payment complying with all terms of the 11 account, including special requirements concerning necessary signatures and regulations of 12 the financial institution; but, for purposes of this part, if terms of the account condition 13 payment on advance notice, a request for payment is treated as immediately effective and a 14 notice of intent to withdraw is treated as a request for payment. 15 (11) "Sums on deposit" means the balance payable on an account, including 16 interest and dividends earned, whether or not included in the current balance, and any deposit 17 life insurance proceeds added to the account by reason of death of a party. 18 (12) "Terms of the account" includes the deposit agreement and other terms and 19 conditions, including the form, of the contract of deposit. 20 §6-202. Limitation On Scope Of Part. 21 This part does not apply to (i) an account established for a partnership, joint venture, 22 or other organization for a business purpose, (ii) an account controlled by one or more 23 persons as an agent or trustee for a corporation, unincorporated association, or charitable or 24 civic organization, or (iii) a fiduciary or trust account in which the relationship is established
    • 336 1 other than by the terms of the account. 2 §6-203. Types Of Account; Existing Accounts. 3 (a) An account may be for a single party or multiple parties. A multiple-party 4 account may be with or without a right of survivorship between the parties. Subject to 5 Section 6-212(c), either a single-party account or a multiple-party account may have a POD 6 designation, an agency designation, or both. 7 (b) An account established before, on, or after the effective date of this part, 8 whether in the form prescribed in Section 6-204 or in any other form, is either a single-party 9 account or a multiple-party account, with or without right of survivorship, and with or 10 without a POD designation or an agency designation, within the meaning of this part, and is 11 governed by this part. 12 §6-204. Forms. 13 (a) A contract of deposit that contains provisions in substantially the following 14 form establishes the type of account provided, and the account is governed by the provisions 15 of this part applicable to an account of that type: 16 UNIFORM SINGLE-OR MULTIPLE-PARTY ACCOUNT FORM 17 PARTIES [Name One or More Parties]: 18 __________________ __________________ 19 OWNERSHIP [Select One And Initial]: 20 SINGLE-PARTY ACCOUNT 21 22 MULTIPLE-PARTY ACCOUNT 23 Parties own account in proportion to net contributions unless there is clear and 24 convincing evidence of a different intent.
    • 337 1 2 RIGHTS AT DEATH (Select One And Initial): 3 SINGLE-PARTY ACCOUNT 4 At death of party, ownership passes as part of party's estate. 5 6 SINGLE-PARTY ACCOUNT WITH POD (PAY ON DEATH) DESIGNATION 7 (Name One Or More Beneficiaries): 8 __________________ __________________ 9 At death of party, ownership passes to POD beneficiaries and is not part of 10 party's estate. 11 12 MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP 13 At death of party, ownership passes to surviving parties. 14 15 MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND POD 16 (PAY ON DEATH) DESIGNATION 17 (Name One Or More Beneficiaries): 18 __________________ __________________ 19 At death of last surviving party, ownership passes to POD beneficiaries and is 20 not part of last surviving party's estate. 21 22 MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF SURVIVORSHIP 23 At death of party, deceased party's ownership passes as part of deceased party's 24 estate.
    • 338 1 AGENCY (POWER OF ATTORNEY) DESIGNATION [Optional] 2 Agents may make account transactions for parties but have no ownership or 3 rights at death unless named as POD beneficiaries. 4 (To Add Agency Designation To Account, Name One Or More Agents): 5 __________________ __________________ 6 (Select One And Initial): 7 ______AGENCY DESIGNATION SURVIVES DISABILITY OR 8 INCAPACITY OF PARTIES 9 10 ______AGENCY DESIGNATION TERMINATES ON DISABILITY OR 11 INCAPACITY OF PARTIES 12 (b) A contract of deposit that does not contain provisions in substantially the form 13 provided in subsection (a) is governed by the provisions of this part applicable to the type of 14 account that most nearly conforms to the depositor's intent. 15 §6-205. Designation Of Agent. 16 (a) By a writing signed by all parties, the parties may designate as agent of all 17 parties on an account a person other than a party. 18 (b) Unless the terms of an agency designation provide that the authority of the 19 agent terminates on disability or incapacity of a party, the agent's authority survives disability 20 and incapacity. The agent may act for a disabled or incapacitated party until the authority of 21 the agent is terminated. 22 (c) Death of the sole party or last surviving party terminates the authority of an 23 agent. 24
    • 339 1 §6-206. Applicability Of Part. 2 The provisions of Subpart 2 concerning beneficial ownership as between parties or as 3 between parties and beneficiaries apply only to controversies between those persons and their 4 creditors and other successors, and do not apply to the right of those persons to payment as 5 determined by the terms of the account. Subpart 3 governs the liability and set-off rights of 6 financial institutions that make payments pursuant to it. 7 Subpart 2. Ownership As Between Parties And Others 8 §6-211. Ownership During Lifetime. 9 (a) In this section, "net contribution" of a party means the sum of all deposits to 10 an account made by or for the party, less all payments from the account made to or for the 11 party which have not been paid to or applied to the use of another party and a proportionate 12 share of any charges deducted from the account, plus a proportionate share of any interest or 13 dividends earned, whether or not included in the current balance. The term includes deposit 14 life insurance proceeds added to the account by reason of death of the party whose net 15 contribution is in question. 16 (b) During the lifetime of all parties, an account belongs to the parties in 17 proportion to the net contribution of each to the sums on deposit, unless there is clear and 18 convincing evidence of a different intent. As between parties married to each other, in the 19 absence of proof otherwise, the net contribution of each is presumed to be an equal amount. 20 (c) A beneficiary in an account having a POD designation has no right to sums on 21 deposit during the lifetime of any party. 22 (d) An agent in an account with an agency designation has no beneficial right to 23 sums on deposit. 24
    • 340 1 §6-212. Rights At Death. 2 (a) Except as otherwise provided in this part, on death of a party sums on deposit 3 in a multiple-party account belong to the surviving party or parties. If two or more parties 4 survive and one is the surviving spouse of the decedent, the amount to which the decedent, 5 immediately before death, was beneficially entitled under section 6-211 belongs to the 6 surviving spouse. If two or more parties survive and none is the surviving spouse of the 7 decedent, the amount to which the decedent, immediately before death, was beneficially 8 entitled under section 6-211 belongs to the surviving parties in equal shares, and augments 9 the proportion to which each survivor, immediately before the decedent's death, was 10 beneficially entitled under Section 6-211, and the right of survivorship continues between the 11 surviving parties. 12 (b) In an account with a POD designation: 13 (1) On death of one of two or more parties, the rights in sums on deposit 14 are governed by subsection (a). 15 (2) On death of the sole party or the last survivor of two or more parties, 16 sums on deposit belong to the surviving beneficiary or beneficiaries. If two or more 17 beneficiaries survive, sums on deposit belong to them in equal and undivided shares, 18 and there is no right of survivorship in the event of death of a beneficiary thereafter. 19 If no beneficiary survives, sums on deposit belong to the estate of the last surviving 20 party. 21 (c) Sums on deposit in a single-party account without a POD designation, or in a 22 multiple-party account that, by the terms of the account, is without right of survivorship, are 23 not affected by death of a party, but the amount to which the decedent, immediately before 24 death, was beneficially entitled under section 6-211 is transferred as part of the decedent's
    • 341 1 estate. A POD designation in a multiple-party account without right of survivorship is 2 ineffective. For purposes of this section, designation of an account as a tenancy in common 3 establishes that the account is without right of survivorship. 4 (d) The ownership right of a surviving party or beneficiary, or of the decedent's 5 estate, in sums on deposit is subject to requests for payment made by a party before the 6 party's death, whether paid by the financial institution before or after death, or unpaid. The 7 surviving party or beneficiary, or the decedent's estate, is liable to the payee of an unpaid 8 request for payment. The liability is limited to a proportionate share of the amount 9 transferred under this section, to the extent necessary to discharge the request for payment. 10 §6-213. Alteration Of Rights. 11 (a) Rights at death of a party under section 6-212 are determined by the terms of 12 the account at the death of the party. A party may alter the terms of the account by a notice 13 signed by the party and given to the financial institution to change the terms of the account or 14 to stop or vary payment under the terms of the account. To be effective the notice must be 15 received by the financial institution during the party's lifetime. 16 (b) A right of survivorship arising from the express terms of the account, section 17 6-212, or a POD designation, may not be altered by will. 18 §6-214. Accounts And Transfers Nontestamentary. 19 Except as provided in Part 2 of Article II (elective share of surviving spouse) or as a 20 consequence of, and to the extent directed by, section 6-215, a transfer resulting from the 21 application of section 6-212 is effective by reason of the terms of the account involved and 22 this part and is not testamentary or subject to Articles I through IV (estate administration). 23 §6-215. [Reserved]. 24
    • 342 1 §6-216. Community Property And Tenancy By The Entireties. 2 (a) A deposit of community property in an account does not alter the community 3 character of the property or community rights in the property, but a right of survivorship 4 between parties married to each other arising from the express terms of the account or 5 Section 6-212 may not be altered by will. 6 (b) This part does not affect the law governing tenancy by the entireties. 7 Subpart 3. Protection of Financial Institutions 8 §6-221. Authority Of Financial Institution. 9 A financial institution may enter into a contract of deposit for a multiple-party 10 account to the same extent it may enter into a contract of deposit for a single-party account, 11 and may provide for a POD designation and an agency designation in either a single-party 12 account or a multiple-party account. A financial institution need not inquire as to the source 13 of a deposit to an account or as to the proposed application of a payment from an account. 14 §6-222. Payment On Multiple-Party Account. 15 A financial institution, on request, may pay sums on deposit in a multiple-party 16 account to: 17 (1) one or more of the parties, whether or not another party is disabled, 18 incapacitated, or deceased when payment is requested and whether or not the party making 19 the request survives another party; or 20 (2) the personal representative, if any, or, if there is none, the heirs or devisees of 21 a deceased party if proof of death is presented to the financial institution showing that the 22 deceased party was the survivor of all other persons named on the account either as a party or 23 beneficiary, unless the account is without right of survivorship under Section 6-212. 24
    • 343 1 §6-223. Payment On POD Designation. 2 A financial institution, on request, may pay sums on deposit in an account with a 3 POD designation to: 4 (1) one or more of the parties, whether or not another party is disabled, 5 incapacitated, or deceased when the payment is requested and whether or not a party survives 6 another party; 7 (2) the beneficiary or beneficiaries, if proof of death is presented to the financial 8 institution showing that the beneficiary or beneficiaries survived all persons named as 9 parties; or 10 (3) the personal representative, if any, or, if there is none, the heirs or devisees of 11 a deceased party, if proof of death is presented to the financial institution showing that the 12 deceased party was the survivor of all other persons named on the account either as a party or 13 beneficiary. 14 §6-224. Payment To Designated Agent. 15 A financial institution, on request of an agent under an agency designation for an 16 account, may pay to the agent sums on deposit in the account, whether or not a party is 17 disabled, incapacitated, or deceased when the request is made or received, and whether or not 18 the authority of the agent terminates on the disability or incapacity of a party. 19 §6-225. Payment To Minor. 20 If a financial institution is required or permitted to make payment pursuant to this part 21 to a minor designated as a beneficiary, payment may be made pursuant to the Uniform 22 Transfers to Minors Act. 23 §6-226. Discharge. 24 (a) Payment made pursuant to this part in accordance with the terms of the
    • 344 1 account discharges the financial institution from all claims for amounts so paid, whether or 2 not the payment is consistent with the beneficial ownership of the account as between parties, 3 beneficiaries, or their successors. Payment may be made whether or not a party, beneficiary, 4 or agent is disabled, incapacitated, or deceased when payment is requested, received, or 5 made. 6 (b) Protection under this section does not extend to payments made after a 7 financial institution has received written notice from a party, or from the personal 8 representative, surviving spouse, or heir or devisee of a deceased party, to the effect that 9 payments in accordance with the terms of the account, including one having an agency 10 designation, should not be permitted, and the financial institution has had a reasonable 11 opportunity to act on it when the payment is made. Unless the notice is withdrawn by the 12 person giving it, the successor of any deceased party must concur in a request for payment if 13 the financial institution is to be protected under this section. Unless a financial institution has 14 been served with process in an action or proceeding, no other notice or other information 15 shown to have been available to the financial institution affects its right to protection under 16 this section. 17 (c) A financial institution that receives written notice pursuant to this section or 18 otherwise has reason to believe that a dispute exists as to the rights of the parties may refuse, 19 without liability, to make payments in accordance with the terms of the account. 20 (d) Protection of a financial institution under this section does not affect the rights 21 of parties in disputes between themselves or their successors concerning the beneficial 22 ownership of sums on deposit in accounts or payments made from accounts. 23 §6-227. Set-Off. 24 Without qualifying any other statutory right to set off or lien and subject to any
    • 345 1 contractual provision, if a party is indebted to a financial institution, the financial institution 2 has a right to set-off against the account. The amount of the account subject to set-off is the 3 proportion to which the party is, or immediately before death was, beneficially entitled under 4 section 6-211 or, in the absence of proof of that proportion, an equal share with all parties. 5 PART 3 6 UNIFORM TOD SECURITY REGISTRATION ACT 7 §6-301. Definitions. 8 In this part: 9 (1) "Beneficiary form" means a registration of a security which indicates the 10 present owner of the security and the intention of the owner regarding the person who will 11 become the owner of the security upon the death of the owner. 12 (2) "Register," including its derivatives, means to issue a certificate showing the 13 ownership of a certificated security or, in the case of an uncertificated security, to initiate or 14 transfer an account showing ownership of securities. 15 (3) "Registering entity" means a person who originates or transfers a security title 16 by registration, and includes a broker maintaining security accounts for customers and a 17 transfer agent or other person acting for or as an issuer of securities. 18 (4) "Security" means a share, participation, or other interest in property, in a 19 business, or in an obligation of an enterprise or other issuer, and includes a certificated 20 security, an uncertificated security, and a security account. 21 (5) “Security account" means (i) a reinvestment account associated with a 22 security, a securities account with a broker, a cash balance in a brokerage account, cash, 23 interest, earnings, or dividends earned or declared on a security in an account, a reinvestment 24 account, or a brokerage account, whether or not credited to the account before the owner's
    • 346 1 death, or (ii) a cash balance or other property held for or due to the owner of a security as a 2 replacement for or product of an account security, whether or not credited to the account 3 before the owner's death. 4 §6-302. Registration In Beneficiary Form; Sole Or Joint Tenancy Ownership. 5 Only individuals whose registration of a security shows sole ownership by one 6 individual or multiple ownership by two or more with right of survivorship, rather than as 7 tenants in common, may obtain registration in beneficiary form. Multiple owners of a 8 security registered in beneficiary form hold as joint tenants with right of survivorship, as 9 tenants by the entireties, or as owners of community property held in survivorship form, and 10 not as tenants in common. 11 §6-303. Registration In Beneficiary Form; Applicable Law. 12 A security may be registered in beneficiary form if the form is authorized by this or a 13 similar statute of the state of organization of the issuer or registering entity, the location of 14 the registering entity's principal office, the office of its transfer agent or its office making the 15 registration, or by this or a similar statute of the law of the state listed as the owner's address 16 at the time of registration. A registration governed by the law of a jurisdiction in which this 17 or similar legislation is not in force or was not in force when a registration in beneficiary 18 form was made is nevertheless presumed to be valid and authorized as a matter of contract 19 law. 20 §6-304. Origination Of Registration In Beneficiary Form. 21 A security, whether evidenced by certificate or account, is registered in beneficiary 22 form when the registration includes a designation of a beneficiary to take the ownership at 23 the death of the owner or the deaths of all multiple owners. 24
    • 347 1 §6-305. Form Of Registration In Beneficiary Form. 2 Registration in beneficiary form may be shown by the words "transfer on death" or 3 the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the 4 name of the registered owner and before the name of a beneficiary. 5 §6-306. Effect Of Registration In Beneficiary Form. 6 The designation of a TOD beneficiary on a registration in beneficiary form has no 7 effect on ownership until the owner's death. A registration of a security in beneficiary form 8 may be canceled or changed at any time by the sole owner or all then surviving owners 9 without the consent of the beneficiary. 10 §6-307. Ownership On Death Of Owner. 11 On death of a sole owner or the last to die of all multiple owners, ownership of 12 securities registered in beneficiary form passes to the beneficiary or beneficiaries who 13 survive all owners. On proof of death of all owners and compliance with any applicable 14 requirements of the registering entity, a security registered in beneficiary form may be 15 reregistered in the name of the beneficiary or beneficiaries who survive the death of all 16 owners. Until division of the security after the death of all owners, multiple beneficiaries 17 surviving the death of all owners hold their interests as tenants in common. If no beneficiary 18 survives the death of all owners, the security belongs to the estate of the deceased sole owner 19 or the estate of the last to die of all multiple owners. 20 §6-308. Protection Of Registering Entity. 21 (a) A registering entity is not required to offer or to accept a request for security 22 registration in beneficiary form. If a registration in beneficiary form is offered by a 23 registering entity, the owner requesting registration in beneficiary form assents to the 24 protections given to the registering entity by this part.
    • 348 1 (b) By accepting a request for registration of a security in beneficiary form, the 2 registering entity agrees that the registration will be implemented on death of the deceased 3 owner as provided in this part. 4 (c) A registering entity is discharged from all claims to a security by the estate, 5 creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in 6 accordance with Section 6-307 and does so in good faith reliance (i) on the registration, (ii) 7 on this part, (iii) on information provided to it by affidavit of the personal representative of 8 the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's 9 representatives, or other information available to the registering entity. The protections of 10 this part do not extend to a reregistration or payment made after a registering entity has 11 received written notice from any claimant to any interest in the security objecting to 12 implementation of a registration in beneficiary form. No other notice or other information 13 available to the registering entity affects its right to protection under this part. 14 (d) The protection provided by this part to the registering entity of a security does 15 not affect the rights of beneficiaries in disputes between themselves and other claimants to 16 ownership of the security transferred or its value or proceeds. 17 §6-309. Nontestamentary Transfer On Death. 18 A transfer on death resulting from a registration in beneficiary form is effective by 19 reason of the contract regarding the registration between the owner and the registering entity 20 and this Act and is not testamentary. 21 §6-310. Terms, Conditions, And Forms For Registration. 22 (a) A registering entity offering to accept registrations in beneficiary form may 23 establish the terms and conditions under which it will receive requests (i) for registrations in 24 beneficiary form, and (ii) for implementation of registrations in beneficiary form, including
    • 349 1 requests for cancellation of previously registered TOD beneficiary designations and requests 2 for reregistration to effect a change of beneficiary. The terms and conditions so established 3 may provide for proving death, avoiding or resolving any problems concerning fractional 4 shares, designating primary and contingent beneficiaries, and substituting a named 5 beneficiary's descendants to take in the place of the named beneficiary in the event of the 6 beneficiary's death. Substitution may be indicated by appending to the name of the primary 7 beneficiary the letters LDPS, standing for "lineal descendants per stripes." This designation 8 substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who 9 fails to so survive, the descendants to be identified and to share in accordance with the law of 10 the beneficiary's domicile at the owner's death governing inheritance by descendants of an 11 intestate. Other forms of identifying beneficiaries who are to take on one or more 12 contingencies, and rules for providing proofs and assurances needed to satisfy reasonable 13 concerns by registering entities regarding conditions and identities relevant to accurate 14 implementation of registrations in beneficiary form, may be contained in a registering entity's 15 terms and conditions. 16 (b) The following are illustrations of registrations in beneficiary form which a 17 registering entity may authorize: 18 (1) Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. 19 Brown Jr. 20 (2) Multiple owners-sole beneficiary: John S. Brown, Mary B. Brown JT 21 TEN TOD John S. Brown Jr. 22 (3) Multiple owners-primary and secondary (substituted) beneficiaries: 23 John S. Brown Mary B. Brown JT TEN TOD John S. Brown Jr. SUB BENE Peter Q. 24 Brown or John S. Brown Mary B. Brown JT TEN TOD John S. Brown Jr. LDPS.
    • 350 1 §6-311. Application Of Part. 2 This part applies to registrations of securities in beneficiary form made before or after 3 effective date, by decedents dying on or after effective date. 4 ARTICLE VII 5 TRUST ADMINISTRATION 6 RESERVED 7 UNIFORM PRUDENT MANAGEMENT OF INSTITUTIONAL FUNDS ACT 8 9 ARTICLE VIII 10 UNIFORM PRUDENT MANAGEMENT OF INSTITUTIONAL FUNDS ACT 11 §8-101 SHORT TITLE. This article may be cited as the Uniform Prudent Management of 12 Institutional Funds Act. 13 §8-102 . DEFINITIONS. In this article 14 (1) “Charitable purpose” means the relief of poverty, the advancement of 15 education or religion, the promotion of health, the promotion of a governmental purpose, or 16 any other purpose the achievement of which is beneficial to the community. 17 (2) “Endowment fund” means an institutional fund or part thereof that, under the 18 terms of a gift instrument, is not wholly expendable by the institution on a current basis. The 19 term does not include assets that an institution designates as an endowment fund for its own 20 use. 21 (3) “Gift instrument” means a record or records, including an institutional 22 solicitation, under which property is granted to, transferred to, or held by an institution as an 23 institutional fund. 24 (4) “Institution” means:
    • 351 1 (A) a person, other than an individual, organized and operated exclusively 2 for charitable purposes; 3 (B) a government or governmental subdivision, agency, or instrumentality, 4 to the extent that it holds funds exclusively for a charitable purpose; or 5 (C) a trust that had both charitable and noncharitable interests, after all 6 noncharitable interests have terminated. 7 (5) “Institutional fund” means a fund held by an institution exclusively for 8 charitable purposes. The term does not include: 9 (A) program-related assets; 10 (B) a fund held for an institution by a trustee that is not an institution; or 11 (C) a fund in which a beneficiary that is not an institution has an interest, 12 other than an interest that could arise upon violation or failure of the purposes of the 13 fund. 14 (6) “Other law” means law other than any provision in this article. 15 (7) “Person” means an individual, corporation, business trust, estate, trust, 16 partnership, limited liability company, association, joint venture, public corporation, 17 government or governmental subdivision, agency, or instrumentality, or any other legal or 18 commercial entity. 19 (8) “Program-related asset” means an asset held by an institution primarily to 20 accomplish a charitable purpose of the institution and not primarily for investment. 21 (9) “Record” means information that is inscribed on a tangible medium or that is 22 stored in an electronic or other medium and is retrievable in perceivable form. 23 24
    • 352 1 2 §8-103. STANDARD OF CONDUCT IN MANAGING AND INVESTING 3 INSTITUTIONAL FUND. 4 (a) Subject to the intent of a donor expressed in a gift instrument, an institution, in 5 managing and investing an institutional fund, shall consider the charitable purposes of the 6 institution and the purposes of the institutional fund. 7 (b) In addition to complying with the duty of loyalty imposed by law other than 8 this article, each person responsible for managing and investing an institutional fund shall 9 manage and invest the fund in good faith and with the care an ordinarily prudent person in a 10 like position would exercise under similar circumstances. 11 (c) In managing and investing an institutional fund, an institution: 12 (1) may incur only costs that are appropriate and reasonable in relation to 13 the assets, the purposes of the institution, and the skills available to the institution; 14 and 15 (2) shall make a reasonable effort to verify facts relevant to the 16 management and investment of the fund. 17 (d) An institution may pool two or more institutional funds for purposes of 18 management and investment. 19 (e) Except as otherwise provided by a gift instrument, the following rules apply: 20 (1) In managing and investing an institutional fund, the following factors, 21 if relevant, must be considered: 22 (A) general economic conditions; 23 (B) the possible effect of inflation or deflation;
    • 353 1 (C) the expected tax consequences, if any, of investment decisions 2 or strategies; 3 (D) the role that each investment or course of action plays within 4 the overall investment portfolio of the fund; 5 (E) the expected total return from income and the appreciation of 6 investments; 7 (F) other resources of the institution; 8 (G) the needs of the institution and the fund to make distributions 9 and to preserve capital; and 10 (H) an asset’s special relationship or special value, if any, to the 11 charitable purposes of the institution. 12 (2) Management and investment decisions about an individual asset must 13 be made not in isolation but rather in the context of the institutional fund’s portfolio 14 of investments as a whole and as a part of an overall investment strategy having risk 15 and return objectives reasonably suited to the fund and to the institution. 16 (3) Except as otherwise provided by other law, an institution may invest in 17 any kind of property or type of investment consistent with this section. 18 (4) An institution shall diversify the investments of an institutional fund 19 unless the institution reasonably determines that, because of special circumstances, 20 the purposes of the fund are better served without diversification. 21 (5) Within a reasonable time after receiving property, an institution shall 22 make and carry out decisions concerning the retention or disposition of the property 23 or to rebalance a portfolio, in order to bring the institutional fund into compliance
    • 354 1 with the purposes, terms, and distribution requirements of the institution as necessary 2 to meet other circumstances of the institution and the requirements of this article. 3 (6) A person that has special skills or expertise, or is selected in reliance 4 upon the person’s representation that the person has special skills or expertise, has a 5 duty to use those skills or that expertise in managing and investing institutional funds. 6 §8-104 APPROPRIATION FOR EXPENDITURE OR ACCUMULATION OF 7 ENDOWMENT FUND; RULES OF CONSTRUCTION. 8 (a) Subject to the intent of a donor expressed in the gift instrument and to 9 subsection (d), an institution may appropriate for expenditure or accumulate so much of an 10 endowment fund as the institution determines is prudent for the uses, benefits, purposes, and 11 duration for which the endowment fund is established. Unless stated otherwise in the gift 12 instrument, the assets in an endowment fund are donor-restricted assets until appropriated for 13 expenditure by the institution. In making a determination to appropriate or accumulate, the 14 institution shall act in good faith, with the care that an ordinarily prudent person in a like 15 position would exercise under similar circumstances, and shall consider, if relevant, the 16 following factors: 17 (1) the duration and preservation of the endowment fund; 18 (2) the purposes of the institution and the endowment fund; 19 (3) general economic conditions; 20 (4) the possible effect of inflation or deflation; 21 (5) the expected total return from income and the appreciation of 22 investments; 23 (6) other resources of the institution; and 24 (7) the investment policy of the institution.
    • 355 1 (b) To limit the authority to appropriate for expenditure or accumulate under 2 subsection (a), a gift instrument must specifically state the limitation. 3 (c) Terms in a gift instrument designating a gift as an endowment, or a direction 4 or authorization in the gift instrument to use only “income”, “interest”, “dividends”, or 5 “rents, issues, or profits”, or “to preserve the principal intact”, or words of similar import: 6 (1) create an endowment fund of permanent duration unless other 7 language in the gift instrument limits the duration or purpose of the fund; and 8 (2) do not otherwise limit the authority to appropriate for expenditure or 9 accumulate under subsection (a). 10 (d) The appropriation for expenditure in any year of an amount greater than seven 11 percent of the fair market value of an endowment fund, calculated on the basis of market 12 values determined at least quarterly and averaged over a period of not less than three years 13 immediately preceding the year in which the appropriation for expenditure is made, creates a 14 rebuttable presumption of imprudence. For an endowment fund in existence for fewer than 15 three years, the fair market value of the endowment fund must be calculated for the period 16 the endowment fund has been in existence. This subsection does not: 17 (1) apply to an appropriation for expenditure permitted under other law or 18 by the gift instrument; or 19 (2) create a presumption of prudence for an appropriation for expenditure 20 of an amount less than or equal to seven percent of the fair market value of the 21 endowment fund. 22 §8-105 DELEGATION OF MANAGEMENT AND INVESTMENT FUNCTIONS. 23 (a) Subject to any specific limitation set forth in a gift instrument or in other law, 24 an institution may delegate to an external agent the management and investment of an
    • 356 1 institutional fund to the extent that an institution could prudently delegate under the 2 circumstances. An institution shall act in good faith, with the care that an ordinarily prudent 3 person in a like position would exercise under similar circumstances, in: 4 (1) selecting an agent; 5 (2) establishing the scope and terms of the delegation, consistent with the 6 purposes of the institution and the institutional fund; and 7 (3) periodically reviewing the agent’s actions in order to monitor the 8 agent’s performance and compliance with the scope and terms of the delegation. 9 (b) In performing a delegated function, an agent owes a duty to the institution to 10 exercise reasonable care to comply with the scope and terms of the delegation. 11 (c) An institution that complies with subsection (a) is not liable for the decisions 12 or actions of an agent to which the function was delegated. 13 (d) By accepting delegation of a management or investment function from an 14 institution that is subject to the laws of the Virgin Islands, an agent submits to the jurisdiction 15 of the courts of the Virgin Islands in all proceedings arising from or related to the delegation 16 or the performance of the delegated function. 17 (e) An institution may delegate management and investment functions to its 18 committees, officers, or employees as authorized by other law of the Virgin Islands. 19 §8-106. Release or Modification of Restrictions on Management, Investment, or 20 Purpose. 21 (a) If the donor consents in a record, an institution may release or modify, in 22 whole or in part, a restriction contained in a gift instrument on the management, investment, 23 or purpose of an institutional fund. A release or modification may not allow a fund to be 24 used for a purpose other than a charitable purpose of the institution.
    • 357 1 (b) The court, upon application of an institution, may modify a restriction 2 contained in a gift instrument regarding the management or investment of an institutional 3 fund if the restriction has become impracticable or wasteful, if it impairs the management or 4 investment of the fund, or if, because of circumstances not anticipated by the donor, a 5 modification of a restriction will further the purposes of the fund. The institution shall notify 6 the Attorney General of the application, and the Attorney General must be given an 7 opportunity to be heard. To the extent practicable, any modification must be made in 8 accordance with the donor’s probable intention. 9 (c) If a particular charitable purpose or a restriction contained in a gift instrument 10 on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or 11 wasteful, the court, upon application of an institution, may modify the purpose of the fund or 12 the restriction on the use of the fund in a manner consistent with the charitable purposes 13 expressed in the gift instrument. The institution shall notify the Attorney General of the 14 application, and the Attorney General must be given an opportunity to be heard. 15 (d) If an institution determines that a restriction contained in a gift instrument on 16 the management, investment, or purpose of an institutional fund is unlawful, impracticable, 17 impossible to achieve, or wasteful, the institution, 60 days after notification to the Attorney 18 General, may release or modify the restriction, in whole or part, if: 19 (1) the institutional fund subject to the restriction has a total value of less 20 than $25,000; 21 (2) more than 20 years have elapsed since the fund was established; and 22 (3) the institution uses the property in a manner consistent with the 23 charitable purposes expressed in the gift instrument.
    • 358 1 §8-107. REVIEWING COMPLIANCE. Compliance with this article is determined in 2 light of the facts and circumstances existing at the time a decision is made or action is taken, 3 and not by hindsight. 4 §8-108. APPLICATION TO EXISTING INSTITUTIONAL FUNDS. This article 5 applies to institutional funds existing on or established after the effective date of this article. 6 As applied to institutional funds existing on the effective date of this article this article 7 governs only decisions made or actions taken on or after that date. 8 §8-201 RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND 9 NATIONAL COMMERCE ACT. This article modifies, limits, and supersedes the 10 Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., 11 but does not modify, limit, or supersede Section 101 of that act, 15 U.S.C. Section 7001(a), 12 or authorize electronic delivery of any of the notices described in Section 103 of that act, 15 13 U.S.C. Section 7003(b). 14 15 §8-202 UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and 16 construing this uniform act, consideration must be given to the need to promote uniformity of 17 the law with respect to its subject matter among states that enact it. 18 (b) The Court has full power to make orders, judgments and decrees and take all 19 other action necessary and proper to administer justice in the matters which come before it. 20 (c) The Court has jurisdiction over protective proceedings and guardianship 21 proceedings. 22 (d) If both guardianship and protective proceedings as to the same person are 23 commenced or pending in the same court, the proceedings may be consolidated.
    • 359 1 §8-203. Venue; Multiple Proceedings; Transfer. 2 (a) Where a proceeding under this title could be maintained in more than one 3 place in the Virgin Islands, the Court in which the proceeding is first commenced has the 4 exclusive right to proceed. 5 (b) If proceedings concerning the same estate, protected person, ward, or trust are 6 commenced in more than one Court of the Virgin Islands, the Court in which the proceeding 7 was first commenced shall continue to hear the matter, and the other courts shall hold the 8 matter in abeyance until the question of venue is decided, and if the ruling Court determines 9 that venue is properly in another Court, it shall transfer the proceeding to the other Court. 10 (c) If a Court finds that in the interest of justice a proceeding or a file should be 11 located in another Court of the Virgin Islands, the Court making the finding may transfer the 12 proceeding or file to the other Court. 13 14 §8-204. Practice in Court. 15 Unless specifically provided to the contrary in this Code or unless inconsistent with 16 its provisions, the rules of civil procedure including the rules concerning vacation of orders 17 and appellate review govern formal proceedings under this Code. 18 §8-205. Records and Certified Copies. 19 The Clerk of Court shall keep a record for each decedent, ward, protected person or 20 trust involved in any document which may be filed with the Court under this Code, including 21 petitions and applications, demands for notices or bonds, trust registrations, and of any orders 22 or responses relating thereto by the Registrar or Court, and establish and maintain a system 23 for indexing, filing or recording which is sufficient to enable users of the records to obtain 24 adequate information. Upon payment of the fees required by law the clerk must issue
    • 360 1 certified copies of any probated wills, letters issued to personal representatives, or any other 2 record or paper filed or recorded. Certificates relating to probated wills must indicate 3 whether the decedent was domiciled in the Virgin Islands, and whether the probate was 4 formal or informal. Certificates relating to letters must show the date of appointment. 5 ARTICLE 9 6 RESERVED 7 ARTICLE 10 8 UNIFORM CUSTODIAL TRUST ACT 9 PART 1 10 §10-101. Short title. This Article may be cited as the Virgin Islands uniform Custodial 11 Trust Act. 12 §10-101a DEFINITIONS. As used in this article: 13 (1) "Adult" means an individual who is at least 18 years of age. 14 (2) "Beneficiary" means an individual for whom property has been transferred to 15 or held under a declaration of trust by a custodial trustee for the individual's use and benefit 16 under this article. 17 (3) "Conservator" means a person appointed or qualified by a court to manage the 18 estate of an individual or a person legally authorized to perform substantially the same 19 functions. 20 (4) "Court" means the Superior Court of the Virgin Islands. 21 (5) "Custodial trust property" means an interest in property transferred to or held 22 under a declaration of trust by a custodial trustee under this article and the income from and 23 proceeds of that interest.
    • 361 1 (6) "Custodial trustee" means a person designated as trustee of a custodial trust 2 under this article or a substitute or successor to the person designated. 3 (7) "Guardian" means a person appointed or qualified by a court as a guardian of 4 an individual, including a limited guardian, but not a person who is only a guardian ad litem. 5 (8) "Incapacitated" means lacking the ability to manage property and business 6 affairs effectively by reason of mental illness, mental deficiency, physical illness or 7 disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign 8 power, disappearance, minority, or other disabling cause. 9 (9) "Legal representative" means a personal representative or conservator. 10 (10) "Member of the beneficiary's family" means a beneficiary's spouse, 11 descendant, stepchild, parent, stepparent, grandparent, brother, sister, uncle, or aunt, whether 12 of the whole or half blood or by adoption. 13 (11) "Person" means an individual, corporation, business trust, estate, trust, 14 partnership, joint venture, association, or any other legal or commercial entity. 15 (12) "Personal representative" means an executor, administrator, or special 16 administrator of a decedent's estate, a person legally authorized to perform substantially the 17 same functions, or a successor to any of them. 18 (13) "State" means a state, territory, or possession of the United States, the District 19 of Columbia, including the Commonwealth of Puerto Rico and the Virgin Islands. 20 (14) "Transferor" means a person who creates a custodial trust by transfer or 21 declaration. 22 (15) "Trust company" means a financial institution, corporation, or other legal 23 entity, authorized to exercise general trust powers. 24 §1-102. CUSTODIAL TRUST; GENERAL.
    • 362 1 (a) A person may create a custodial trust of property by a written transfer of the 2 property to another person, evidenced by registration or by other instrument of transfer, 3 executed in any lawful manner, naming as beneficiary, an individual who may be the 4 transferor, in which the transferee is designated, in substance, as custodial trustee under the 5 Virgin Islands Uniform Custodial Trust Act. 6 (b) A person may create a custodial trust of property by a written declaration, 7 evidenced by registration of the property or by other instrument of declaration executed in 8 any lawful manner, describing the property and naming as beneficiary an individual other 9 than the declarant, in which the declarant as titleholder is designated, in substance, as 10 custodial trustee under the Virgin Islands Uniform Custodial Trust Act. A registration or 11 other declaration of trust for the sole benefit of the declarant is not a custodial trust under this 12 article. 13 (c) Title to custodial trust property is in the custodial trustee and the beneficial 14 interest is in the beneficiary. 15 (d) Except as provided in subsection (e), a transferor may not terminate a 16 custodial trust. 17 (e) The beneficiary, if not incapacitated, or the conservator of an incapacitated 18 beneficiary, may terminate a custodial trust by delivering to the custodial trustee a writing 19 signed by the beneficiary or conservator declaring the termination. If not previously 20 terminated, the custodial trust terminates on the death of the beneficiary. 21 (f) Any person may augment existing custodial trust property by the addition of 22 other property pursuant to this article. 23 (g) The transferor may designate, or authorize the designation of, a successor 24 custodial trustee in the trust instrument.
    • 363 1 (h) This article does not displace or restrict other means of creating trusts. A trust 2 whose terms do not conform to this article may be enforceable according to its terms under 3 other law. 4 §10-103. CUSTODIAL TRUSTEE FOR FUTURE PAYMENT OR TRANSFER. 5 (a) A person having the right to designate the recipient of property payable or 6 transferable upon a future event may create a custodial trust upon the occurrence of the future 7 event by designating in writing the recipient, followed in substance by: "as custodial trustee 8 for _______________ (name of beneficiary) under the Virgin Islands Uniform Custodial 9 Trust Act." 10 (b) Persons may be designated as substitute or successor custodial trustees to 11 whom the property must be paid or transferred in the order named if the first designated 12 custodial trustee is unable or unwilling to serve. 13 (c) A designation under this section may be made in a will, a trust, a deed, a 14 multiple-party account, an insurance policy, an instrument exercising a power of 15 appointment, or a writing designating a beneficiary of contractual rights. Otherwise, to be 16 effective, the designation must be registered with or delivered to the fiduciary, payor, issuer, 17 or obligor of the future right. 18 §10-104. FORM AND EFFECT OF RECEIPT AND ACCEPTANCE BY CUSTODIAL 19 TRUSTEE, JURISDICTION. 20 (a) Obligations of a custodial trustee, including the obligation to follow directions 21 of the beneficiary, arise under this article upon the custodial trustee's acceptance, express or 22 implied, of the custodial trust property. 23 (b) The custodial trustee's acceptance may be evidenced by a writing stating in 24 substance:
    • 364 1 CUSTODIAL TRUSTEE'S RECEIPT AND ACCEPTANCE 2 I, _______________ (name of custodial trustee) acknowledge receipt of the custodial trust 3 property described below or in the attached instrument and accept the custodial trust as 4 custodial trustee for _______________ (name of beneficiary) under the Virgin Islands 5 Uniform Custodial Trust Act. I undertake to administer and distribute the custodial trust 6 property pursuant to the Virgin Islands Uniform Custodial Trust Act. My obligations as 7 custodial trustee are subject to the directions of the beneficiary unless the beneficiary is 8 designated as, is, or becomes incapacitated. The custodial trust property consists of 9 ________________________________. 10 Dated:__________________________ 11 ________________________________ 12 (Signature of Custodial Trustee) 13 (c) Upon accepting custodial trust property, a person designated as custodial 14 trustee under this article is subject to personal jurisdiction of the court with respect to any 15 matter relating to the custodial trust. 16 §10-105. TRANSFER TO CUSTODIAL TRUSTEE BY FIDUCIARY OR OBLIGOR; 17 FACILITY OF PAYMENT. 18 (a) Unless otherwise directed by an instrument designating a custodial trustee 19 pursuant to section 10-103, a person, including a fiduciary other than a custodial trustee, who 20 holds property of or owes a debt to an incapacitated individual not having a conservator may 21 make a transfer to an adult member of the beneficiary's family or to a trust company as
    • 365 1 custodial trustee for the use and benefit of the incapacitated individual. If the value of the 2 property or the debt exceeds $20,000, the transfer is not effective unless authorized by the 3 court. 4 (b) A written acknowledgment of delivery, signed by a custodial trustee, is a 5 sufficient receipt and discharge for property transferred to the custodial trustee pursuant to 6 this section. 7 §10-106. MULTIPLE BENEFICIARIES; SEPARATE CUSTODIAL TRUSTS; 8 SURVIVORSHIP. 9 (a) Beneficial interests in a custodial trust created for multiple beneficiaries are 10 deemed to be separate custodial trusts of equal undivided interests for each beneficiary. 11 Except in a transfer or declaration for use and benefit of husband and wife, for whom 12 survivorship is presumed, a right of survivorship does not exist unless the instrument creating 13 the custodial trust specifically provides for survivorship. 14 (b) Custodial trust property held under this [Act] by the same custodial trustee for 15 the use and benefit of the same beneficiary may be administered as a single custodial trust. 16 (c) A custodial trustee of custodial trust property held for more than one 17 beneficiary shall separately account to each beneficiary pursuant to sections 10-7 and 10-15 18 for the administration of the custodial trust. 19 §10- 107. GENERAL DUTIES OF CUSTODIAL TRUSTEE. 20 (a) If appropriate, a custodial trustee shall register or record the instrument 21 vesting title to custodial trust property. 22 (b) If the beneficiary is not incapacitated, a custodial trustee shall follow the 23 directions of the beneficiary in the management, control, investment, or retention of the 24 custodial trust property. In the absence of effective contrary direction by the beneficiary
    • 366 1 while not incapacitated, the custodial trustee shall observe the standard of care that would be 2 observed by a prudent person dealing with property of another and is not limited by any other 3 law restricting investments by fiduciaries. However, a custodial trustee, in the custodial 4 trustee's discretion, may retain any custodial trust property received from the transferor. If a 5 custodial trustee has a special skill or expertise or is named custodial trustee on the basis of 6 representation of a special skill or expertise, the custodial trustee shall use that skill or 7 expertise. 8 (c) Subject to subsection (b), a custodial trustee shall take control of and collect, 9 hold, manage, invest, and reinvest custodial trust property. 10 (d) A custodial trustee at all times shall keep custodial trust property of which the 11 custodial trustee has control, separate from all other property in a manner sufficient to 12 identify it clearly as custodial trust property of the beneficiary. Custodial trust property, the 13 title to which is subject to recordation, is so identified if an appropriate instrument so 14 identifying the property is recorded, and custodial trust property subject to registration is so 15 identified if it is registered, or held in an account in the name of the custodial trustee, 16 designated in substance: "as custodial trustee for _______________ (name of beneficiary) 17 under the Virgin Islands Uniform Custodial Trust Act." 18 (e) A custodial trustee shall keep records of all transactions with respect to 19 custodial trust property, including information necessary for the preparation of tax returns, 20 and shall make the records and information available at reasonable times to the beneficiary or 21 legal representative of the beneficiary. 22 (f) The exercise of a durable power of attorney for an incapacitated beneficiary is 23 not effective to terminate or direct the administration or distribution of a custodial trust. 24 §10-108. GENERAL POWERS OF CUSTODIAL TRUSTEE.
    • 367 1 (a) A custodial trustee, acting in a fiduciary capacity, has all the rights and 2 powers over custodial trust property which an unmarried adult owner has over individually 3 owned property, but a custodial trustee may exercise those rights and powers in a fiduciary 4 capacity only. 5 (b) This section does not relieve a custodial trustee from liability for a violation of 6 section 10-107. 7 §10-109. USE OF CUSTODIAL TRUST PROPERTY. 8 (a) A custodial trustee shall pay to the beneficiary or expend for the beneficiary's 9 use and benefit so much or all of the custodial trust property as the beneficiary while not 10 incapacitated may direct from time to time. 11 (b) If the beneficiary is incapacitated, the custodial trustee shall expend so much 12 or all of the custodial trust property as the custodial trustee considers advisable for the use 13 and benefit of the beneficiary and individuals who were supported by the beneficiary when 14 the beneficiary became incapacitated, or who are legally entitled to support by the 15 beneficiary. Expenditures may be made in the manner, when, and to the extent that the 16 custodial trustee determines suitable and proper, without court order and without regard to 17 other support, income, or property of the beneficiary. 18 (c) A custodial trustee may establish checking, savings, or other similar accounts 19 of reasonable amounts under which either the custodial trustee or the beneficiary may 20 withdraw funds from, or draw checks against, the accounts. Funds withdrawn from, or 21 checks written against, the account by the beneficiary are distributions of custodial trust 22 property by the custodial trustee to the beneficiary. 23 §10-110. DETERMINATION OF INCAPACITY; EFFECT.
    • 368 1 (a) The custodial trustee shall administer the custodial trust as for an 2 incapacitated beneficiary if 3 (1) the custodial trust was created under section10-105, 4 (2) the transferor has so directed in the instrument creating the custodial 5 trust, or 6 (3) the custodial trustee has determined that the beneficiary is 7 incapacitated. 8 (b) A custodial trustee may determine that the beneficiary is incapacitated in 9 reliance upon: 10 (1) previous direction or authority given by the beneficiary while not 11 incapacitated, including direction or authority pursuant to a durable power of 12 attorney, 13 (2) the certificate of the beneficiary's physician, or 14 (3) other persuasive evidence. 15 (c) If a custodial trustee for an incapacitated beneficiary reasonably concludes 16 that the beneficiary's incapacity has ceased, or that circumstances concerning the 17 beneficiary's ability to manage property and business affairs have changed since the creation 18 of a custodial trust directing administration as for an incapacitated beneficiary, the custodial 19 trustee may administer the trust as for a beneficiary who is not incapacitated. 20 (d) On petition of the beneficiary, the custodial trustee, or other person interested 21 in the custodial trust property or the welfare of the beneficiary, the court shall determine 22 whether the beneficiary is incapacitated. 23 (e) Absent determination of incapacity of the beneficiary under subsection (b) or 24 (d), a custodial trustee who has reason to believe that the beneficiary is incapacitated shall
    • 369 1 administer the custodial trust in accordance with the provisions of this article applicable to an 2 incapacitated beneficiary. 3 (f) Incapacity of a beneficiary does not terminate 4 (1) the custodial trust, 5 (2) any designation of a successor custodial trustee, 6 (3) rights or powers of the custodial trustee, or 7 (4) any immunities of third persons acting on instructions of the custodial 8 trustee. 9 §10-111. EXEMPTION OF THIRD PERSON FROM LIABILITY. A third person in 10 good faith and without a court order may act on instructions of, or otherwise deal with, a 11 person purporting to make a transfer as, or purporting to act in the capacity of, a custodial 12 trustee. In the absence of knowledge to the contrary, the third person is not responsible for 13 determining: 14 (1) the validity of the purported custodial trustee's designation; 15 (2) the propriety of, or the authority under this article for, any action of the 16 purported custodial trustee; 17 (3) the validity or propriety of an instrument executed or instruction given 18 pursuant to this article either by the person purporting to make a transfer or declaration or by 19 the purported custodial trustee; or 20 (4) the propriety of the application of property vested in the purported custodial 21 trustee. 22 §10-112. LIABILITY TO THIRD PERSON. 23 (a) A claim based on a contract entered into by a custodial trustee acting in a 24 fiduciary capacity, an obligation arising from the ownership or control of custodial trust
    • 370 1 property, or a tort committed in the course of administering the custodial trust, may be 2 asserted by a third person against the custodial trust property by proceeding against the 3 custodial trustee in a fiduciary capacity, whether or not the custodial trustee or the 4 beneficiary is personally liable. 5 (b) A custodial trustee is not personally liable to a third person: 6 (1) on a contract properly entered into in a fiduciary capacity unless the 7 custodial trustee fails to reveal that capacity or to identify the custodial trust in the 8 contract; or 9 (2) for an obligation arising from control of custodial trust property or for 10 a tort committed in the course of the administration of the custodial trust unless the 11 custodial trustee is personally at fault. 12 (c) A beneficiary is not personally liable to a third person for an obligation arising 13 from beneficial ownership of custodial trust property or for a tort committed in the course of 14 administration of the custodial trust unless the beneficiary is personally in possession of the 15 custodial trust property giving rise to the liability or is personally at fault. 16 (d) Subsections (b) and (c) do not preclude actions or proceedings to establish 17 liability of the custodial trustee or beneficiary to the extent the person sued is protected as the 18 insured by liability insurance. 19 §10-113. DECLINATION, RESIGNATION, INCAPACITY, DEATH, OR REMOVAL 20 OF CUSTODIAL TRUSTEE, DESIGNATION OF SUCCESSOR CUSTODIAL 21 TRUSTEE. 22 (a) Before accepting the custodial trust property, a person designated as custodial 23 trustee may decline to serve by notifying the person who made the designation, the 24 transferor, or the transferor's legal representative. If an event giving rise to a transfer has not
    • 371 1 occurred, the substitute custodial trustee designated under section 10-103 becomes the 2 custodial trustee, or, if a substitute custodial trustee has not been designated, the person who 3 made the designation may designate a substitute custodial trustee pursuant to section 10-103. 4 In other cases, the transferor or the transferor's legal representative may designate a substitute 5 custodial trustee. 6 (b) A custodial trustee who has accepted the custodial trust property may resign 7 by 8 (1) delivering written notice to a successor custodial trustee, if any, the 9 beneficiary and, if the beneficiary is incapacitated, to the beneficiary's conservator, if any, 10 and 11 (2) transferring or registering, or recording an appropriate instrument relating to, 12 the custodial trust property, in the name of, and delivering the records to, the successor 13 custodial trustee identified under subsection (c). 14 (c) If a custodial trustee or successor custodial trustee is ineligible, resigns, dies, 15 or becomes incapacitated, the successor designated under section 10-102(g) or 10-103 16 becomes custodial trustee. If there is no effective provision for a successor, the beneficiary, 17 if not incapacitated, may designate a successor custodial trustee. If the beneficiary is 18 incapacitated, or fails to act within 90 days after the ineligibility, resignation, death, or 19 incapacity of the custodial trustee, the beneficiary's conservator becomes successor custodial 20 trustee. If the beneficiary does not have a conservator or the conservator fails to act, the 21 resigning custodial trustee may designate a successor custodial trustee. 22 (d) If a successor custodial trustee is not designated pursuant to subsection (c), the 23 transferor, the legal representative of the transferor or of the custodial trustee, an adult 24 member of the beneficiary's family, the guardian of the beneficiary, a person interested in the
    • 372 1 custodial trust property, or a person interested in the welfare of the beneficiary, may petition 2 the court to designate a successor custodial trustee. 3 (e) A custodial trustee who declines to serve or resigns, or the legal representative 4 of a deceased or incapacitated custodial trustee, as soon as practicable, shall put the custodial 5 trust property and records in the possession and control of the successor custodial trustee. 6 The successor custodial trustee may enforce the obligation to deliver custodial trust property 7 and records and becomes responsible for each item as received. 8 (f) A beneficiary, the beneficiary's conservator, an adult member of the 9 beneficiary's family, a guardian of the person of the beneficiary, a person interested in the 10 custodial trust property, or a person interested in the welfare of the beneficiary, may petition 11 the court to remove the custodial trustee for cause and designate a successor custodial trustee, 12 to require the custodial trustee to furnish a bond or other security for the faithful performance 13 of fiduciary duties, or for other appropriate relief. 14 15 16 §10-114. EXPENSES, COMPENSATION, AND BOND OF CUSTODIAL TRUSTEE. 17 Except as otherwise provided in the instrument creating the custodial trust, in an agreement 18 with the beneficiary, or by court order, a custodial trustee: 19 (1) is entitled to reimbursement from custodial trust property for reasonable 20 expenses incurred in the performance of fiduciary services; 21 (2) has a noncumulative election, to be made no later than six months after the 22 end of each calendar year, to charge a reasonable compensation for fiduciary services 23 performed during that year; and
    • 373 1 (3) need not furnish a bond or other security for the faithful performance of 2 fiduciary duties. 3 §10-115. REPORTING AND ACCOUNTING BY CUSTODIAL TRUSTEE; 4 DETERMINATION OF LIABILITY OF CUSTODIAL TRUSTEE. 5 (a) Upon the acceptance of custodia