Client Alert: Virginia Legislative Updates for Trust and Estate Litigation: 2025
Date: October 7, 2025
Standing for Legal Malpractice Claims Against Estate Planners Limited
The Virginia General Assembly altered the law relating to who can bring legal malpractice claims against estate planners. In the 2025 legislative session, the General Assembly passed SB1115/HB2174, which specifically provided that “an attorney does not owe a legal duty to any person other than the client in any engagement for the purpose of the client's estate planning.” Virginia Code § 64.2-520.1. This means that estate planning attorneys’ legal duty is to the client only and not to any beneficiaries of the estate. Thus, only the client (while the client is alive) or the client’s estate (after the client has passed) has standing to sue an estate planning attorney for legal malpractice.
The new law provides an exception whereby a client can enter into an agreement with the estate planning attorney to confer a benefit upon a third party. Such an agreement must be in writing, signed by the attorney and the client, and specifically reference the new code section. Unless these specific rules are followed, no third-party beneficiary will have standing to sue for legal malpractice.
Funeral Homes Now Have Additional Protection in Disposing of Remains Where There Is a Dispute Between the Next of Kin
In Virginia, unless a person prepares written directions pursuant to Virginia Code § 54.1-2825 for the disposition of their body upon their death, the next of kin become the decision-makers. Virginia law has a framework for resolving disputes between next of kin. Virginia Code § 54.1-2807.01 states that any next of kin can petition the circuit court where the loved one resided at the time of death to determine which next of kin should make the decisions regarding funeral services and burial/cremation. The statute charges the Court to look at the wishes of the loved one, the relationship between the next of kin and the loved one, and any other factor the court considers relevant. The Court will then enter an order appointing one of the next of kin with the authority. Where there is such a dispute, at least one of the next of kin is required to notify the funeral home of the dispute within 48 hours of the funeral home receiving the remains, after which the funeral home must immediately stop making arrangements for the funeral or disposition.
In this year’s legislative session, the Virginia General Assembly passed HB2246, which provided additional direction to funeral homes. The bill added to this statute, allowing funeral homes to continue with funeral and disposition arrangements if they have not received an agreement or court order regarding disposition within 30 days of being notified of the dispute. It also provided liability protection for the funeral home if it complied with the statute.
Revoking Transfer on Death Provisions in Deeds Simplified
A transfer on death provision in a deed results in an automatic transfer of the property to a certain named person or entity upon the owner’s death. Prior to the current legislative session, a person wishing to revoke a transfer-on-death provision in a deed needed to expressly revoke the provision in a subsequent deed. This created confusion when an owner created a transfer on death provision in one deed, but then transferred the property to another person in a subsequent deed without revoking the provision. In that instance, what is the effect of the transfer on the death provision because it was not expressly revoked in the new deed?
In 2025, the General Assembly passed HB1871 to avoid confusion. This bill altered the language of Virginia § 64.2-630(A)(1)(d), which now states that a subsequent deed conveying real property to another so that the transferor is no longer the owner at the time of the transferor’s death is effective to revoke the transfer on death deed without any specific language.
Amendments to the Uniform Trust Code
The General Assembly passed HB1770, which added the following definition of “Electronic” to the Uniform Trust Code: relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
It also passed SB1116/HB1605, which expands the definitions of "independent qualified trustee" and "qualified trustee" to authorize additional entities to serve as an independent qualified trustee or a qualified trustee of a qualified self-settled spendthrift trust.
Finally, it passed HB2243, which expands certain specific powers conferred to a trustee, including the power to guarantee loans, the power to pledge trust property to guarantee loans, the exercise of certain powers with respect to an interest in real property, and the exercise of certain powers relating to stocks and other securities.
Increases in Allowances for Surviving Heirs, Threshold for Notifications of Probate, Estate Expenses, and the Ceiling for Small Asset Estates and Uneconomic Trusts
The General Assembly increased the amounts for certain allowances to surviving heirs to reflect the change in the Consumer Price Index for urban consumers (HB1912). The changes are as follows:
- Family allowance for surviving spouse and minor children – Increased from $24,000 to $30,000 (or installments of $2,000, increased to $2,500)
- Exempt property allowance for surviving spouse (or minor children where there is no surviving spouse) – Increased from $20,000 to $25,000
- Homestead allowance for surviving spouse (or minor children where there is no surviving spouse) – Increased from $20,000 to $25,000
The bill also provided that beneficiaries of an estate receiving a bequest of less than $10,000 are not entitled to notice of probate under Virginia Code § 64.2-508 (as opposed to the previous $5,000).
The bill raised the amount under which an estate may be administered as a “small asset estate” to $75,000 (as opposed to the previous $50,000).
The bill also increased the threshold for determining that a trust is uneconomic and thus can be terminated without court approval from $100,000 worth of trust property to $250,000.
The bill also increased the amounts for funeral expenses and medical/hospital expenses that receive priority for payment from an estate and increased the threshold for the clerk of court to waive inventories and extend deadlines for accountings. Finally, it changed under what circumstances fiduciaries may qualify without security and made other various adjustments to fees and financial thresholds relating to estate planning and administration.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.