West Virginia Code 44-5A-2 – Incorporation by reference of enumerated powers by testator; restriction on exercise of powers
(a) After June 30, 2011, by an intention of the testator expressed in a will, any or all of the powers or any portion of the powers enumerated in section three of this article, as they exist at the time of the signing of the will by the testator may be, by appropriate reference made thereto, incorporated in the will, with the same effect as though the language were set forth verbatim in the instrument. Incorporation of one or more of the powers contained in section three of this article by reference to that section is in addition to and not in limitation of the common law or statutory powers of the fiduciary.
Terms Used In West Virginia Code 44-5A-2
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Donor: The person who makes a gift.
- Fiduciary: A trustee, executor, or administrator.
- fiduciary: means the one or more executors of the estate of a decedent, or the one or more trustees of a testamentary or inter vivos trust estate, whichever in a particular case is appropriate. See West Virginia Code 44-5A-1
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Marital deduction: The deduction(s) that can be taken in the determination of gift and estate tax liabilities because of the existence of a marriage or marital relationship.
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- Testator: A male person who leaves a will at death.
(b) No power of authority conferred upon a fiduciary as provided in this article may be exercised by the fiduciary in a manner as, in the aggregate, to deprive the trust or the estate involved of an otherwise available tax exemption, deduction or credit, expressly including the marital deduction, or operate to impose a tax upon a donor or testator or other person as owner of any portion of the trust or estate involved. “Tax” includes, but is not limited to, any federal, state, or local income, gift, estate or inheritance tax.
(c) Nothing in this section prevents the incorporation of the powers enumerated in section three of this article in any other kind of instrument or agreement.