West Virginia Code 44D-1-103 – Definitions
In this chapter:
Terms Used In West Virginia Code 44D-1-103
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Grantor: The person who establishes a trust and places property into it.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- 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.
- Trustee: A person or institution holding and administering property in trust.
- Venue: The geographical location in which a case is tried.
(a) “Action”, with respect to an act of a trustee, includes a failure to act.
(b) “Ascertainable standard” means a standard relating to an individual’s health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code.
(c) “Beneficiary” means a person that:
(1) Has a present or future beneficial interest in a trust, vested or contingent;
(2) In a capacity other than that of trustee, holds a power of appointment over trust property; or
(3) A charitable organization that is expressly designated in the terms of the trust instrument to receive distributions.
(d) “Charitable trust” means a trust, or portion of a trust, created for a charitable purpose described in § 44D-4-405 of this code.
(e) “Conservator” means a person appointed by the court to administer the estate and financial affairs of a protected person.
(f) “Court” means a court of this state having proper jurisdiction under § 44D-2-203 of this code, and venue under § 44D-2-204 of this code.
(g) “Current beneficiary” means a beneficiary that, on the date the beneficiary’s qualification is determined, is a distributee or permissible distributee of trust income or principal.
(h) “Environmental law” means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.
(i) “Grantor” means a person, including a testator, who creates, or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a grantor of the portion of the trust property attributable to that person’s contribution except to the extent another person has the power to revoke or withdraw that portion.
(j) “Guardian” means a person appointed by the court who is responsible for the personal affairs of a protected person or a parent to make decisions regarding the support, care, education, health, and welfare of a minor. The term does not include a guardian ad litem.
(k) “Interested person” means heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust or the property in a trust. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved, in any proceeding.
(l) “Interests of the beneficiaries” means the beneficial interests provided in the terms of the trust.
(m) “Internal Revenue Code” or “Internal Revenue Code of 1986” has the same meaning as when used in a comparable context in the laws of the United States then in effect relating to income, estate, generation-skipping transfer and other taxes including all amendments made to the laws of the United States and amendments which have been adopted and incorporated into West Virginia law by the West Virginia Legislature in § 11-21-9 of this code.
(n) “Jurisdiction” with respect to a geographic area, includes a state or country.
(o) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, unincorporated nonprofit association, charitable organization, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(p) “Power of withdrawal” means a presently exercisable general power of appointment other than a power:
(1) Exercisable by a trustee and limited by an ascertainable standard; or
(2) Exercisable by another person only upon consent of the trustee or a person holding an adverse interest.
(q) “Property” means anything that may be the subject of ownership, whether real or personal, legal or equitable or any interest therein.
(r) “Qualified beneficiary” means a beneficiary who, on the date the beneficiary’s qualification is determined:
(1) Is a distributee or permissible distributee of trust income or principal;
(2) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (1) of this subdivision terminated on that date without causing the trust to terminate; or
(3) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
(s) “Revocable”, as applied to a trust, means revocable by the grantor without the consent of the trustee or a person holding an adverse interest.
(t) “Spendthrift provision” means a term of a trust which restrains both voluntary and involuntary transfer of a beneficiary’s interest.
(u) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.
(v) “Terms of a trust” means:
(1) Except as otherwise provided in subparagraph (2); and the manifestation of the grantor’s intent regarding a trust’s provisions as:
(A) Expressed in the trust instrument; or
(B) Established by other evidence that would be admissible in a judicial proceeding; or
(2) The trust’s provisions as established, determined, or amended by:
(i) A trustee or trust director in accordance with applicable law;
(ii) A court order; or
(iii) A nonjudicial settlement agreement under § 44D-1-111 of this code.
(w) “Trust instrument” means a writing, including a will, executed by the grantor that contains terms of the trust, including any amendments thereto.
(x) “Trustee” includes an original, additional, successor trustee and a cotrustee.
(y) “Writing” or “written instrument” does not include an electronic record or electronic signature as provided in §39A-1-1 et seq. of this code.