Virginia Living Trust
The Virginia rules that shape the document: the Code Section 55.1-136 tenancy-by-the-entirety immunity, permissive execution under the Virginia Trust Code, and the 2024 perpetuities amendment.
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Introduction
A Virginia living trust needs no notary, witness, or will formality to create; Virginia Code Section 64.2-720 asks only for a capable settlor, indicated intent, a definite beneficiary, and a trustee with duties to perform, and Section 64.2-725 will even enforce a purely oral trust on clear and convincing evidence. But creating the trust is not the same as funding it, and only assets you actually retitle into the trustee's name avoid Virginia probate; anything left in your own name still goes through it. Virginia also gives married couples a funding-stage protection almost no other state offers: Code Section 55.1-136 lets tenancy-by-the-entirety property move into a joint or separate revocable trust without losing the creditor immunity that entireties ownership carries, an exception to the ordinary rule that a settlor's own creditors can reach revocable trust assets during life.
Key Things to Know
- 1
Virginia lets married couples keep a valuable protection that funding a trust would otherwise destroy. Property held as tenants by the entirety normally loses its immunity from each spouse's separate creditors once it is deeded to a trustee, but Code Section 55.1-136(C)-(D) preserves that immunity for entireties property conveyed into a couple's joint or separate revocable trusts, as long as the spouses stay married and the property stays in trust. This overrides the general rule in Section 64.2-747 that a settlor's own creditors can reach revocable trust property.
- 2
No notary, witness, or will formality is required to create a Virginia living trust. Section 64.2-720 lists only settlor capacity, indicated intent, a definite beneficiary, and trustee duties, and Section 64.2-725 permits a purely oral trust proven by clear and convincing evidence. Notarization becomes necessary only at the funding step: the deed that transfers real property to your trustee must be acknowledged before a notary or proved by two witnesses under Code Section 55.1-600, and title companies and banks generally insist on it regardless.
- 3
Deeding your home into a Virginia trust is exempt from the state recordation tax. Code Section 58.1-811(A)(11) excuses a deed conveying property to the trustee of a revocable inter vivos trust from the grantor's and grantee's recordation taxes, so long as the grantors in the deed and the trust beneficiaries are the same people and no consideration passes between them. Record the deed with the circuit court clerk for the city or county where the land sits; many localities apply a matching local recordation tax exemption.
- 4
Virginia's Title 34 householder exemption protects $5,000 of real or personal property, $10,000 if you are 65 or older, plus up to $50,000 for your principal residence, secured by recording a homestead deed under Section 34-6. These base figures adjust, so confirm the current amount before relying on it. Whether that protection survives once you deed your home into a revocable trust is not addressed by any Virginia statute or regulation; treat it as unresolved and ask a Virginia attorney before moving a home you are counting on the exemption for.
- 5
A Virginia living trust cannot be used to cut your spouse below the statutory floor. Section 64.2-308.1 treats your retained power to revoke the trust as a presently exercisable general power of appointment, which pulls trust assets into your augmented estate, and your spouse can claim 50 percent of the marital-property share of that augmented estate under Sections 64.2-308.4 to 64.2-308.8, computed on a marriage-length sliding scale.
- 6
A 2024 amendment moved Virginia much closer to a dynasty-trust state, but only for personal property. Section 55.1-124(F) substitutes 1,000 years for the old 90-year wait-and-see period, for nonvested interests in personal property held in trust created on or after July 1, 2024, which covers a typical funded revocable trust's investment and bank accounts. Real property held in trust stays on the older cap: vesting within 21 years after the death of someone alive at creation, or within 90 years of creation.
- 7
A revocable Virginia living trust gives you no protection from your own creditors while you are alive. Section 64.2-747(A) exposes all revocable trust property to the settlor's creditors during life without limit, and after death trust assets remain reachable for the settlor's debts if a written demand is made within a hard two-year outer limit. Readers who want actual asset protection need a separate, irrevocable vehicle: Virginia's qualified self-settled spendthrift trust under Sections 64.2-745.1 and 64.2-745.2, which is not the revocable trust this page describes.
Key decisions before you file
Before you file a Living Trust in Virginia, a few decisions shape the document: which option to choose and what each one means. The Living Trust guide walks through them.
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Virginia Requirements for Living Trust
Virginia No Notary or Witness Required to Create the Trust
Section 64.2-720 requires only settlor capacity, indicated intent, a definite beneficiary, and trustee duties. Section 64.2-725 enforces even a purely oral trust on clear and convincing evidence. Notarization is required only for the deed that funds real property into the trust.
Virginia Tenancy-by-the-Entirety Immunity Preserved in Trust
Code Section 55.1-136(C)-(D) preserves the creditor immunity of tenancy-by-the-entirety property when spouses convey it into their joint or separate revocable trusts, so long as they remain married and the property stays in trust, overriding the general settlor-creditor-exposure rule of Section 64.2-747.
Virginia Recordation Tax Exemption for Trust Funding Deeds
Section 58.1-811(A)(11) exempts a deed conveying property to the trustee of a revocable inter vivos trust from the state recordation tax where the grantors and the trust beneficiaries are the same persons and no consideration passes between them.
Virginia Elective Share Reaches Revocable Trust Assets
Section 64.2-308.1 treats a settlor's retained power to revoke as a presently exercisable general power of appointment, pulling trust assets into the augmented estate. A surviving spouse can claim 50 percent of the marital-property share under Sections 64.2-308.4 to 64.2-308.8.
Virginia 2024 Perpetuities Amendment for Personal Property
Section 55.1-124(F) substitutes 1,000 years for the former 90-year wait-and-see period for nonvested interests in personal property held in trust created on or after July 1, 2024. Real property held in trust remains on the 21-years-after-death-plus-90-year cap.
Virginia No Lifetime Creditor Protection for a Revocable Trust
Section 64.2-747(A) exposes all revocable trust property to the settlor's own creditors during life without limit. Actual asset protection requires a separate, irrevocable qualified self-settled spendthrift trust under Sections 64.2-745.1 and 64.2-745.2, not the revocable trust described on this page.