New to estate planning? You’re in the right place. A living trust is a legal document that holds your family’s assets so they pass directly to your loved ones — no probate court, no delays, no public record. That’s the core idea.
If you’re just starting to figure this out, I’d suggest reading Having the Estate Planning Talk with Your Parents first — it walks through the whole picture and how to get the conversation started. Then come back here for the Virginia-specific rules.
Already know the basics? Keep scrolling — everything below is specific to Virginia.
You’re not alone in this. As someone who went through the estate planning process with my own aging parents, I know the weight of these conversations — the awkwardness, the guilt, the fear that you’re not doing enough or doing it too late. Take a breath. You’ve found the right place, and Virginia has a feature that most families — and even some attorneys — don’t fully appreciate.
Here’s the headline: Virginia is one of the only states in America where married couples can move their assets into a living trust and keep the creditor protection of tenancy by the entirety. Under Va. Code § 55.1-136, property that was held as TBE retains its same immunity from the claims of separate creditors when it’s conveyed to a revocable or irrevocable trust — as long as both spouses remain married and are current beneficiaries. That means you get probate avoidance and creditor protection at the same time. In most states, you have to choose one or the other.
Virginia also has no estate tax, no inheritance tax, and no gift tax. The state enacted a Domestic Asset Protection Trust (DAPT) statute in 2012. And as of July 2024, Virginia allows 1,000-year dynasty trusts for personal property — a major expansion that puts the state in the same conversation as trust-friendly jurisdictions like South Dakota and Nevada.
Here’s everything you need to know about estate planning in Virginia — no legal jargon, just clear answers from a son who’s been through it.
Tenancy by the Entirety: Virginia’s Hidden Superpower for Married Couples
Most states that recognize tenancy by the entirety (TBE) only allow it for real property — the family home. Virginia goes much further. Under Va. Code § 55.1-136(A), Virginia spouses can hold real and personal property as tenants by the entirety — bank accounts, investment accounts, vehicles, everything.
But the real magic is in subsection (C).
The Trust Carryover Provision
Here’s the problem most married couples face: you want to put your assets in a living trust (to avoid probate and plan for incapacity), but the moment you retitle TBE property into the trust, you lose the creditor protection. One spouse’s creditors can now reach what was previously shielded.
Virginia solved this. Va. Code § 55.1-136(C) says that TBE property conveyed to either spouse’s revocable or irrevocable trust retains the same immunity from the claims of their separate creditors — as long as:
- The spouses remain married to each other
- The property continues to be held in the trust
- Both spouses are current beneficiaries of the trust (or each spouse is a beneficiary of a separate trust, and the two trusts together hold the entire property)
Even the proceeds from selling the trust-held TBE property retain the protection.
Why this matters: If one spouse is a doctor, business owner, or anyone exposed to professional liability, TBE property is generally shielded from that spouse’s individual creditors. In most states, funding a living trust destroys that protection. In Virginia, it doesn’t. This makes Virginia one of the most attractive states in America for married-couple estate planning.
Even better: Virginia allows TBE for personal property too — so your joint brokerage accounts, bank accounts, and other financial assets can all carry this dual benefit (trust probate avoidance + TBE creditor protection) simultaneously.
What TBE Protects Against (and What It Doesn’t)
| Creditor Type | Can They Reach TBE Property? |
|---|---|
| One spouse’s individual creditor | No — TBE property is shielded |
| Joint creditors of both spouses | Yes — joint debts can reach TBE property |
| Federal tax liens (IRS) | Yes — under federal law, IRS can reach TBE property |
| Mortgage lender (on the property) | Yes — consensual liens are enforceable |
Virginia Trust Law: More Powerful Than You Think
Virginia adopted the Uniform Trust Code (UTC) effective July 1, 2006 (Va. Code § 64.2-700 et seq.), providing a comprehensive framework for trust creation, administration, and modification. But the state has continued to modernize — and the recent changes are significant.
1,000-Year Dynasty Trusts (New — July 2024)
Virginia’s biggest recent change: HB 836 (effective July 1, 2024) extended the Rule Against Perpetuities from 90 years to 1,000 years for personal property held in trust. This means Virginia families can now create dynasty trusts that protect wealth for dozens of generations.
Key details:
- Personal property (financial assets, investments, entity interests): 1,000-year maximum trust duration
- Real property: Still subject to the traditional RAP (lives in being + 21 years, or 90-year wait-and-see)
- Entity interests (LLCs, corporations, partnerships): Treated as personal property — even if the entity owns real property
The LLC workaround: By holding real property inside an LLC, and then placing the LLC interest (personal property) into the dynasty trust, Virginia families can effectively shelter real estate for up to 1,000 years. This is the same structure used in other dynasty trust states.
Domestic Asset Protection Trust (DAPT)
Virginia enacted its DAPT statute in 2012 (Va. Code § 64.2-745.1 and § 64.2-745.2), making it the 13th state to authorize self-settled spendthrift trusts.
Requirements:
- The trust must be irrevocable
- A qualified independent trustee is required — either a Virginia resident or a Virginia-licensed trust company (cannot be the settlor’s spouse, parent, child, sibling, or a business where the settlor controls 30%+ of the vote)
- The settlor must not be rendered insolvent by the transfer
- At least one additional beneficiary besides the settlor
- The settlor cannot retain the right to disapprove distributions
- A spendthrift clause must be included
Creditor clawback period: 5 years from the date of each transfer. Creditors whose claims existed before the transfer can bring an action within this window.
Exceptions: The DAPT does not protect against federal or Virginia tax obligations or child support.
Virginia’s 5-year clawback is longer than some competing states (Nevada and South Dakota use 2 years), but having a home-state DAPT avoids the choice-of-law challenges that come with establishing a trust in another state.
Directed Trusts (Va. Code § 64.2-779.25 et seq.)
Virginia adopted the Uniform Directed Trust Act effective July 1, 2020, allowing families to appoint trust directors (investment advisors, distribution advisors, trust protectors) with specific powers. The directed trustee is not liable for following the director’s instructions within statutory limits.
Trust Decanting (Va. Code § 64.2-779.1 et seq.)
Virginia adopted the Uniform Trust Decanting Act effective July 1, 2017, allowing authorized fiduciaries to “pour” assets from one trust to another with different terms — no court approval required, but 60 days’ notice to qualified beneficiaries.
Virginia Rules at a Glance
| Feature | Virginia Rule |
|---|---|
| State estate tax | None (repealed July 1, 2007) |
| State inheritance tax | None |
| State gift tax | None |
| Probate court | Circuit Court (no separate probate court); Commissioner of Accounts oversight |
| Probate tax | $0.10 per $100 of estate value + local tax (up to 1/3 of state rate) |
| Small estate threshold | $75,000 personal property (affidavit, 60 days after death) |
| Tenancy by the entirety | Yes — real AND personal property; trust carryover (Va. Code § 55.1-136) |
| TOD deeds | Yes (since 2013, URPTODA, Va. Code § 64.2-621 et seq.) |
| Trust type | Common law — UTC adopted 2006 |
| DAPT | Yes (since 2012, 5-year clawback) |
| Dynasty trusts | 1,000 years for personal property (since July 2024); 90-year RAP for real property |
| Directed trusts | Yes (UDTA, since 2020) |
| Decanting | Yes (UTDA, since 2017) |
| Community property | No — equitable distribution state; no CP trust option |
| Homestead exemption | $50,000 (CPI adjustment starts April 2027) |
| Elective share | 50% of marital-property portion (sliding scale by length of marriage) |
| Medicaid estate recovery | Expanded — reaches beyond probate estate |
Expanded Medicaid recovery alert: Virginia uses the expanded definition of estate for Medicaid recovery (Va. Code § 32.1-326.1), meaning recovery can reach beyond the probate estate to assets in which the individual had any legal interest at death — including revocable trust assets. A revocable living trust alone does not protect assets from Medicaid recovery in Virginia. Irrevocable trust planning with a proper structure (and observance of the 5-year look-back) is needed for Medicaid asset protection.
How Virginia Probate Actually Works
Virginia probate is handled by the Circuit Court in the county or independent city where the decedent lived. There’s no separate probate court — the Clerk of the Circuit Court handles most routine matters, and a judge only gets involved if there’s a dispute.
The Commissioner of Accounts
Virginia has a unique feature: the Commissioner of Accounts — a lawyer appointed by the Circuit Court judge to oversee fiduciaries. Each Commissioner operates an independent office (funded by fees, not taxes) and reviews estate inventories and accountings. This adds a layer of accountability — but also means more paperwork and fees for the estate.
Filing Deadlines
- Inventory: Within 4 months of qualification
- First accounting: Within 16 months of qualification
- Subsequent accountings: Every 16 months until the estate is settled
What Probate Costs in Virginia
| Cost | Approximate Amount |
|---|---|
| State probate tax | $0.10 per $100 of estate value (estates under $15K exempt) |
| Local probate tax | Up to $0.033 per $100 (1/3 of state rate) |
| Court filing fees | ~$50 – $100 (varies by county) |
| Executor commission | ~5% of first $400K, declining to ~2% over $1M |
| Attorney fees | No statutory schedule; typically $3,000 – $10,000+ |
| Commissioner of Accounts fees | Varies; paid by estate |
Example — $500,000 estate through probate:
- State + local probate tax: ~$670
- Executor commission: ~$22,000 – $25,000 (guideline)
- Attorney fees: ~$5,000 – $8,000
- Court and Commissioner fees: ~$500 – $1,000
- Total: approximately $28,000 – $35,000 (5.5% – 7% of estate)
Small Estate Shortcuts
Small estate affidavit (Va. Code § 64.2-601): If the total personal probate estate is $75,000 or less, all known successors can sign an affidavit at least 60 days after death — no probate needed.
Payment without affidavit (Va. Code § 64.2-602): For individual small assets valued at $35,000 or less, holders can release assets directly to successors at least 60 days after death.
Living Trust vs. Probate in Virginia
| Feature | Living Trust | Probate | Why It Matters |
|---|---|---|---|
| Timeline | Days to weeks | 6 – 18 months typical | Your family waits months (or longer) while the estate winds through Circuit Court |
| Cost | $2,000 – $5,000 one-time | $28,000 – $35,000+ on a $500K estate | The trust pays for itself many times over |
| Privacy | Completely private | Public record — will, inventory, and accounts filed with Circuit Court | Asset values and distributions become public |
| Court involvement | None | Circuit Court + Commissioner of Accounts oversight | The Commissioner adds accountability but also cost and paperwork |
| Incapacity protection | Successor trustee steps in seamlessly | Court-supervised guardianship/conservatorship | Guardianship is public, expensive, and emotionally difficult |
| Creditor protection (married) | TBE carryover preserves protection in trust | TBE property passes by survivorship but loses protection at second death | Virginia’s TBE trust carryover is a nationally distinctive advantage |
| Out-of-state property | No ancillary probate needed | Separate probate in each state | Critical for families with property in DC, Maryland, or other states |
Virginia’s Elective Share: What Married Couples Need to Know
Virginia replaced its old one-third/one-half elective share system in 2017 with a modern augmented estate approach modeled on the Uniform Probate Code (Va. Code § 64.2-308.1 et seq.).
How It Works
The surviving spouse can elect 50% of the marital-property portion of the augmented estate. The “marital-property portion” increases based on the length of the marriage:
| Length of Marriage | Marital Property % | Effective Elective Share |
|---|---|---|
| Less than 1 year | 3% | 1.5% |
| 1 – 5 years | 6% – 24% | 3% – 12% |
| 5 – 10 years | 30% – 54% | 15% – 27% |
| 10 – 15 years | 60% – 92% | 30% – 46% |
| 15+ years | 100% | 50% |
Critical for blended families: The augmented estate reaches into revocable trusts, TOD/POD designations, and joint accounts. A living trust does not defeat the elective share — so blended families need to plan around this with prenuptial or postnuptial agreements.
In addition to the elective share, the surviving spouse may claim:
- Family allowance: Up to $30,000 lump sum or $2,500/month for 12 months
- Exempt property: Up to $25,000 in household items, vehicles, and personal effects
- Homestead allowance: $25,000
Estate Planning Readiness Checklist for Virginia
Estate Planning Readiness Checklist — Virginia
Check each item you feel confident about. Your progress is saved automatically.
Most families begin exactly where you are. Here are the best next steps:
- What Is a Living Trust? — the complete beginner's guide
- Having the Estate Planning Talk — how to start the conversation
- How to Avoid Probate — why this matters
You have a solid foundation. Fill in the remaining gaps:
- Funding Your Trust — how to retitle assets
- The 5 Documents Every Family Needs
- Estate Tax & Gift Tax Guide
You understand the fundamentals and you're prepared to work with a professional. The next step is finding an estate planning attorney who knows Virginia law.
Common Estate Planning Mistakes in Virginia
A trust only avoids probate for assets that have been retitled into it. An unfunded trust is just an expensive stack of paper. Real estate, bank accounts, and investments all need to be moved into the trust’s name.
A will does not avoid probate — it goes through it. A will tells the probate court what you want, but the court still controls the process. Only a trust, joint ownership, beneficiary designations, and certain deeds bypass probate entirely.
Retirement accounts (401k, IRA) and life insurance pass by beneficiary designation — not by your will or trust. Outdated designations (like a former spouse) override everything else in your estate plan.
A trust handles what happens after death, but a durable power of attorney and healthcare directive handle what happens if you become incapacitated. Without these, your family may need an expensive court-supervised guardianship.
There is no perfect time to plan your estate. Every day without a plan is a day your family is unprotected. The best time to start is right now — even if you begin with just the basics.
The best way to avoid these mistakes? Work with an estate planning attorney who knows Virginia law. A qualified attorney will catch the state-specific issues that generic online advice misses.
Other Important Planning Tools in Virginia
Healthcare Directives (Va. Code § 54.1-2981 et seq.)
Virginia’s Health Care Decisions Act provides a single combined document that includes both a living will and a healthcare power of attorney (agent designation). This simplifies execution — one document, one signing.
- Living will — directs treatment preferences if terminally ill or permanently unconscious
- Healthcare agent — names someone to make healthcare decisions when you cannot
- Statutory form available — Va. Code § 54.1-2984 provides a suggested form
Execution requirements: Must be in writing and witnessed. The declarant must notify their attending physician.
Virginia also uses POST (Physician Orders for Scope of Treatment) — a medical order form for patients with serious illness. POST forms are portable across care settings including EMS.
Virginia Advance Health Care Directive Registry: The Virginia Department of Health maintains a free electronic registry for advance directives, healthcare POAs, and anatomical gift declarations. Medical providers and emergency responders can access stored directives when needed. Register at vdh.virginia.gov.
Learn more about healthcare directives →
Durable Power of Attorney (Va. Code § 64.2-1600 et seq.)
Virginia adopted the Uniform Power of Attorney Act effective July 1, 2010. Key features:
- POAs are durable by default — they survive incapacity unless the document says otherwise
- Springing POA allowed — can be triggered by incapacity, confirmed by two physicians (or physician + psychologist)
- Must be signed and either notarized or witnessed by two witnesses
- Financial institutions must accept properly executed POAs within a reasonable time or face liability
Learn more about powers of attorney →
Long-Term Care & Medicaid Considerations
Virginia Medicaid has a 5-year (60-month) look-back period for transfers. And here’s the critical point: Virginia uses expanded estate recovery (Va. Code § 32.1-326.1), meaning the state can pursue assets beyond the probate estate — including revocable trust assets and certain other property in which the individual had a legal interest at death.
This means a revocable living trust alone does not protect your home or other assets from Medicaid recovery in Virginia. For Medicaid asset protection, you need irrevocable trust planning with proper structure, well in advance of the 5-year look-back window.
Recovery is deferred while a surviving spouse is alive or while there’s a child under 21 or a blind/disabled child.
Learn more about long-term care planning →
Military Families and Federal Employees
Virginia has one of the largest military and federal employee populations in the nation — Hampton Roads/Norfolk, Quantico, Fort Belvoir, the Pentagon, and dozens of other installations and agencies. Special considerations include:
- Federal benefits coordination: TSP (Thrift Savings Plan), FEGLI (Federal Employees Group Life Insurance), FERS/CSRS survivor benefits, and VA disability payments are governed by federal law, not Virginia trust law. Beneficiary designations on these accounts override wills and trusts — they must be reviewed and updated separately.
- Military wills: Wills executed under 10 U.S.C. § 1044a are valid in Virginia.
- SCRA protections: The Servicemembers Civil Relief Act provides active-duty members with stays of legal proceedings and other protections that interact with estate administration.
- Frequent relocations: Military families need portable estate plans. A Virginia revocable trust is generally valid in other states, but powers of attorney and healthcare directives should be reviewed after each PCS move.
- Deployment planning: Springing POAs and advance directives are especially critical before deployment.
DC-Maryland Cross-Border Issues
Northern Virginia families living in the DC metro corridor face unique multi-jurisdictional challenges:
- DC has an estate tax (~$4.99M exemption in 2026) — owning real property in DC means potential estate tax exposure and ancillary probate
- Maryland has both an estate tax ($5M exemption) and an inheritance tax (10% on non-lineal heirs) — owning Maryland property creates dual-tax exposure
- Ancillary probate: Without a living trust, families with property in Virginia and DC or Maryland face separate probate proceedings in each jurisdiction
- Choice of law: Trust documents should specify Virginia law to preserve TBE carryover benefits
A Virginia revocable living trust that holds out-of-state property can eliminate ancillary probate in DC and Maryland — one of the strongest practical arguments for trust planning in the NoVA corridor.
Find a Virginia Estate Planning Attorney
Find a Virginia Estate Planning Attorney
Virginia’s TBE trust carryover, new dynasty trust rules, and DAPT statute create real planning opportunities — especially for married couples and families in the DC-Maryland corridor. Whether you’re protecting assets from professional liability while keeping them in trust, coordinating federal employee benefits with your estate plan, or navigating property in multiple jurisdictions, professional guidance is how you get this right.
Use the directories below to find a qualified estate planning attorney in your area, or email us and we’ll point you in the right direction.
Where are you in this journey?
- My parents are getting older — just starting to think about this
- We need a plan now — ready to take action
- Settling an estate — dealing with a parent’s passing
Virginia attorney directories:
- Virginia Lawyer Referral Service
- American College of Trust and Estate Counsel (ACTEC) — Find a Fellow
- National Academy of Elder Law Attorneys (NAELA)
Questions to Ask Before You Hire a Virginia Estate Planning Attorney
- How many estate plans do you create per year, and what percentage of your practice is trust and estate work?
- Should we title our assets as TBE and fund a joint trust to take advantage of Va. Code § 55.1-136 — and how exactly do we structure that?
- Is a Virginia DAPT appropriate for our situation, given the 5-year clawback period?
- We’re a blended family — how does Virginia’s augmented estate elective share affect our planning?
- We own property in [DC / Maryland / other state] — how do you handle ancillary probate avoidance?
- My spouse is a federal employee — how do we coordinate TSP, FEGLI, and FERS beneficiary designations with our trust?
- What’s included in your flat fee (trust, pour-over will, POA, healthcare directive, trust funding)?
Recent Virginia Updates
- 2024 — HB 836 (Effective July 1, 2024): Extended the Rule Against Perpetuities from 90 years to 1,000 years for personal property held in trust. Entity interests (LLCs, corporations) are treated as personal property. Real property remains subject to 90-year RAP. Major change enabling dynasty trust planning in Virginia.
- 2025 — HB 1871 (Effective July 1, 2025): Clarified that an inter vivos deed effectively revokes a TOD deed if the transferor is no longer the owner at death — no express revocation language needed.
- 2025 — Exempt Property Update: Personal property exempt from probate increased to $25,000 (from $20,000).
- 2027 — Homestead CPI Adjustment: First automatic consumer price index adjustment to the $50,000 homestead exemption scheduled for April 1, 2027, and every 3 years thereafter.
Last reviewed: February 2026
Last updated: February 2026. I review Virginia’s estate planning rules quarterly and update this page whenever laws change. Bookmark it.
Go Deeper: Estate Planning Guides
| Guide | What You’ll Learn |
|---|---|
| Living Trusts: The Complete Guide | What a living trust is, how it works, and whether your family needs one — the foundation |
| How to Avoid Probate | Every method to keep your family out of court — trusts, TOD accounts, joint tenancy, and more |
| Having the Estate Planning Talk | How to start the hardest conversation your family will ever have — with scripts and strategies |
| Estate Tax Planning | Federal and state estate taxes, gift tax exclusions, and the step-up in basis explained |
| How to Fund Your Trust | The step everyone forgets — how to actually move your assets into your trust |
| The 5 Documents Every Family Needs | Trust, will, powers of attorney, healthcare directive — the complete package |
| Protecting Your Parents’ Legacy | Long-term care, Medicaid, blended families, and the threats nobody warns you about |
| Compare State Estate Planning Rules | See how your state compares on probate costs, estate taxes, and trust-friendly features |