After over a decade of discussion, review and deliberation by the Virgin Islands bench and bar as well as the Law Revision Commission and several Legislatures, on February 8, 2010, U.S. Virgin Islands Governor John P. deJongh signed into law sweeping reforms of the Territory’s probate practice and procedure.

This new legislation reduces needless expense and delay in the administration of estates and trusts, enhances protections for those under guardianship and increases uniformity with other states and territories. This summary highlights five areas of important reforms enacted by the new legislation.

1. Informal Probate and Appointment Proceedings. The U.S. Virgin Islands Uniform Probate Code offers an alternative, streamlined approach to the formal probate procedure required under existing territorial law. The new informal procedure provides for less intrusive involvement by the courts where the probate filing is, as in the overwhelming majority of estates, uncontested. Informal probate shortens the length of time it takes to appoint an estate administrator to as little as seven days after the decedent’s death. Additionally, inventories and accounts are no longer required to be filed with the court and need only be provided to the parties interested in the estate. Interested parties retain the ability to petition the court to institute formal proceedings should increased oversight by the court become necessary.

2. End to Court Supervision of Testamentary Trusts. Similarly, in the area of testamentary trusts, the new legislation limits court involvement in uncontested matters. The prior requirement that trusts established under a decedent’s will render quarterly accounts to the court has been replaced with the duty of trustees to account to the beneficiaries. Only upon the petition of an interested party will the court become further involved. This reform eliminates what has in the past been a strong incentive to utilize inter vivos or living trusts in order to avoid the inefficiency of continuing court oversight.

3. Guardianship and Conservatorship. Unlike the changes regarding estate and trust administration, the reforms governing guardianship and conservatorship provide for enhanced court supervision in order to achieve increased protection of incapacitated individuals. Notably, this new legislation requires reports be rendered to the court at least annually on the condition of the incapacitated person and the status of all assets. Other highlights include:  (i) affording incapacitated individuals enhanced procedural protections, including the right to counsel, the right to be present at any hearing in person and the right to present evidence and cross examine witnesses; (ii) strongly supporting an individual’s right to nominate their own guardian and conservator by an advance directive; and (iii) updating antiquated terminology.

4. Separate Writing Disposing of Tangible Personal Property. The new legislation provides additional testamentary flexibility by giving binding effect to a signed written statement or list disposing of the testator’s items of tangible personal property not otherwise disposed of under their will. The writing may be referred to as one to be in existence at the time of death, may be prepared before or after the execution of the will, and may be altered by the testator after its initial preparation.

5. Default Rules. Default rules operate to govern succession, interpretation and validity of wills where a contingency (including the death of the decedent) has occurred that the decedent has not provided for. The default rules under the U.S. Virgin Islands Uniform Probate Code attempt to more closely reflect the testamentary scheme chosen under similar circumstances where decedents have addressed the issues at hand. Noteworthy revisions of default rules include:

  • Intestate Succession. The surviving spouse receives the entire estate if all children of the decedent and all children of the surviving spouse are children of both.
  • Descendants of Different Generations. Property passes per capita at each generation, resulting in members of the same generation receiving an equal share of the estate.
  • Premarital Will. A will made prior to the testator’s marriage is not automatically revoked. Instead, the surviving spouse takes an intestate share of so much of the estate as is not devised to a child of the testator (or descendant of such child) who was born before the testator married the surviving spouse and who is not a child of the surviving spouse.
  • Omitted Children. A child born after the execution of the will receives an intestate share of the decedent’s estate unless the child’s other parent is receiving substantially all of the estate. Additionally, if the testator had at least one child living at the time the will was executed to whom the testator devised property, the amount passing to the omitted child is limited to a proportionate share of that portion of the testator’s estate devised to the testator’s other children.
  • Effect of Divorce. Existing U.S. Virgin Islands law which revokes a prior will provision in favor of a decedent’s former spouse is extended to cover any disposition of property, grant of a power of appointment or fiduciary nomination in favor of the decedent’s former spouse or a relative of the former spouse under any governing instrument, including beneficiary designations, executed by the decedent prior to the divorce.

These reforms provide for enhanced estate planning flexibility by removing an overriding concern for the excessive expense and delay that has historically accompanied the administration of estates and testamentary trusts in the U.S. Virgin Islands. Individuals are encouraged to consult with trusts and estates counsel to develop an effective estate plan that takes advantage of these advancements in U.S. Virgin Islands law.