Wills, Trusts & Estates

Wills, Trusts & Estates

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Introduction

The 2020 Virginia General Assembly addressed a wide variety of matters affecting wills, trusts, and estates, ranging from a new article of the Virginia Uniform Trust Code and an expanded partition procedure to a $2 increase in the circuit court clerk’s recordation fees. Among the most helpful were new rules that clarify and expand the powers and responsibilities of non-trustees who may direct the trustee on certain issues and a revised procedure for partitioning real property while protecting the rights and interests of co-owners. The legislature also dealt with fiduciary issues, including express authorization for multiple-party bank accounts, additional duties for children’s guardians ad litem, relationships that may disqualify a lawyer as guardian or conservator, protections against suspected financial abuse of adults, reliance on qualification certificates, and requirements for certain fiduciaries’ accounts. The General Assembly also authorized beneficiary designations for ABLE savings accounts, allowed the substitution of a bank for a related trust company in multiple fiduciary roles, broadened disclosure rules for certain gifts to state colleges and universities, expanded the list of documents a notary may accept as identification, and allowed transfer on death (“T.O.D.”) designations for motor vehicles with multiple owners.

J. William Gray, Jr. *
Katherine E. Ramsey **

 * Senior Counsel, Whiteford Taylor & Preston LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Member, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

 

 

Taxation

Taxation

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Introduction

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact their clients. However, it does not address many of the numerous minor, locality-specific, or technical legislative changes to Title 58.1 of the Virginia Code, which covers taxation. 

Craig D. Bell *
Michael H. Brady **

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. 

** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, The University of Texas School of Law; B.S., 2006, Liberty University. Following law school, Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009–2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011–2014, joining McGuireWoods LLP in 2014.

 

 

Employment Law

Employment Law

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Introduction

Against the backdrop of a year that saw the COVID-19 pandemic alter the American workplace in an unprecedented way, the employment law landscape in Virginia also underwent a recent sea change. Historically considered an employer-friendly state, the General Assembly shifted away from tradition by enacting several significant pieces of employee-friendly legislation, which will surely have a long-lasting impact on Virginia employees, businesses, and Virginia’s economy at large. This Article highlights these critical developments in Virginia employment law. It does not provide an in-depth analysis of every development but highlights the most significant changes affecting employers and employees in the Commonwealth. Part I of this Article provides a brief overview of the added employee protections from the federal legislation passed pursuant to the COVID-19 pandemic and discusses Virginia’s efforts in creating the nation’s first COVID-19 workplace safety mandate. Part II briefly highlights legislation enacted in 2019, which set the stage for the General Assembly’s activism in 2020, and then discusses in detail Virginia’s new employment laws. Part III then addresses two recent landmark employment law decisions from the Supreme Court of the United States of which employees and employers alike should be aware.

D. Paul Holdsworth*

* Associate, Jackson Lewis P.C., Richmond, Virginia. J.D., 2015, University of Richmond School of Law; B.A., 2012, Brigham Young University

 

Criminal Law & Procedure

Criminal Law & Procedure

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Introduction

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Brittany A. Dunn-Pirio*
Timothy J. Huffstutter **
Sharon M. Carr ***
Mason D. Williams ****

 * Assistant Commonwealth’s Attorney, Special Victims Unit, Loudoun County Commonwealth’s Attorney’s Office, Commonwealth of Virginia. J.D., 2016, Washington & Lee University School of Law; B.A., 2013, University of Notre Dame.
** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2012, William & Mary School of Law; B.A., 2007, College of William & Mary.
*** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2011, William & Mary School of Law; B.A., 2008, George Mason University.
**** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2017, Washington & Lee University School of Law; B.A., 2014, Transylvania University. 

 

Civil Practice & Procedure

Civil Practice & Procedure

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Introduction

This Article analyzes the past year of Supreme Court of Virginia opinions, revisions to the Virginia Code, and Rules of the Supreme Court of Virginia affecting Virginia civil procedure. It is not fully comprehensive but does endeavor to highlight changes and relevant analysis regarding Virginia civil procedure. The summarized cases do not reflect all changes in Virginia jurisprudence on civil procedure and, at times, focus on emphasized reminders from the court on issues it analyzed. The Article first addresses opinions of the supreme court, then new legislation enacted during the 2019 General Assembly Session, and, finally, approved revisions to the Rules of the Supreme Court of Virginia.

Christopher S. Dadak*

*Associate, Guynn, Waddell, Carroll, & Lockaby, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University.

 

Annual Survey 2020: Foreword, Senator Jennifer L. McClellan

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Foreword

Senator Jennifer L. McClellan*

It seems cliché at this point to say 2020 was an unprecedented year. If 2020 were a movie, critics would have found the plot too far-fetched and with more twists than Game of Thrones. With a global pandemic, resulting economic crisis, the murder of George Floyd and resulting summer of civil unrest, the reckoning of 401 years of racial inequity, and one of the most consequential and contentious presidential elections in our nation’s history—the world seemed to turn upside down multiple times. But before COVID-19 hit Virginia, a seismic political shift hit the Virginia General Assembly that rippled far and wide across the Virginia legal landscape.

Politically, the New Year dawned in the aftershock of regime change. The blue wave that started in 2017 culminated in 2019 with the trifecta of Democratic control of the Executive Branch, House of Delegates, and Senate for the first time since 1993—when I was an undergrad at the University of Richmond interning in the Governor’s Policy Office. Elections matter.

With the shift in partisan control, hundreds of bills on just about every issue imaginable that had been bottled up in committees passed and became law. During the General Assembly’s 2020 Session, nearly 4000 bills were introduced. I introduced forty-nine of them myself (not counting commending and memorial resolutions). One reporter assumed my heavy workload was because I might have been eyeing higher office, but the overwhelming majority were bills that I had introduced before, only to see them never make it out of committee. Why wouldn’t I introduce them again now that I was in the majority for the first time in my fifteen sessions? Indeed, thirty-six of them became law, either as my own bill, as part of the budget, or through a House companion that I helped shepherd through the Senate. In short, persistence pays off.

In total, close to 1300 bills passed. And transformative legislation passed on just about every issue, including: (1) climate change and environmental justice; (2) criminal justice reform; (3) workers’ rights, such as minimum wage, wage theft, and collective bargaining for local government workers; (4) reproductive health; (5) an overhaul and expansion of antidiscrimination laws for housing, employment, and public accommodations; (6) gun safety measures; (7) repealing vestiges of Jim Crow; (8) major health-insurance policy, such as creating a state-based insurance exchange and balanced-billing reform; (9) expanding access to voting; (10) ratifying the Equal Rights Amendment; and (11) redistricting reform.

I do not envy the University of Richmond Law Review editors, trying to fit everything into an Annual Survey of Virginia Law shorter than War and Peace—but everyone loves a challenge.

The partisan realignment is only one part of the story of the seismic shift 2020 represented in Virginia public policy and law.

One hundred fifty years after the first African American men were sworn into the General Assembly,1 the 2020 General Assembly was the most diverse in its 401-year history. Glass ceilings were shattered as the House of Delegates elected Eileen Filler-Corn the first woman and first Jewish Speaker of the House and Suzette Denslow the first woman Clerk. The Senate elected Louise Lucas to be the first woman and African American President pro tempore. The House Majority Leader and Senate Democratic Caucus Chair were also African American women. The General Assembly now has forty-one women, twenty-one African Americans, four Asians, four Hispanics, and one multiracial member. Diversity matters.

We have heard since we were in elementary school that American democracy is a government “of the people, by the people, for the people,” and Abraham Lincoln etched that phrase in our collective memory in the Gettysburg Address. However, we are rarely taught just how many people were shut out of the process from the beginning. Indeed, the first Virginia Constitution adopted in 1776 restricted the right to vote to white men who owned property. The story of our Commonwealth and nation over the past 244 years has been expanding “the people” who participate in government to reflect the full diversity of those who are governed.

In my nearly fifteen years as a legislator, I have observed that the life experiences and perspectives of policymakers impact the policies and laws they produce. Expanding those experiences and perspectives ensures the government will reflect the needs, desires, and expectations of more of the governed. The General Assembly’s 2020 Session and Special Session reflect this point through a number of transformative laws passed. Here, I present two examples.

 

* Virginia State Senator, District 9. J.D., 1997, University of Virginia; B.A., 1994, University of Richmond.

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