WEST VIRGINIA (LOOTPRESS) – There are some changes in the law that make headlines, and there are others that quietly change the way lawyers can plan for families for generations. West Virginia’s recent changes to the rule against perpetuities fall squarely into the second category.
If you went to law school, you probably remember the rule against perpetuities, although you may remember it with the same affection you have for the Rule in Shelley’s Case. If you did not go to law school, congratulations, because you were spared one of the more confusing exercises generations of law students have been forced to endure.
The rule is ancient, complicated, and built around a relatively simple public policy idea. The law historically did not want a person who died hundreds of years ago controlling property forever.
Under the traditional rule, certain future interests had to vest, if at all, within 21 years after the death of a person who was alive when the interest was created. West Virginia later operated under a statutory version of the rule that also provided a 90 year alternative period. In practical terms, there was a limit on how far into the future someone could reach through a trust or other property arrangement.
That matters a great deal in estate planning.
If I created a trust for my children, then their children, then their children, the law eventually said enough. At some point the property had to vest, the trust had to terminate, or the arrangement had to otherwise comply with the rule.
West Virginia has dramatically changed that equation.
From 90 Years to 1,000 Years
The Legislature began moving in this direction in 2023 with House Bill 3272, legislation that also created the West Virginia Private Trust Company Act. For qualifying trusts administered by a private trust company under that law, the Legislature substituted 1,000 yearsfor the traditional 90 year statutory period.
Think about that number for a moment.
One thousand years.
We are not really talking about creating a trust that somebody expects a trustee to be administering in the year 3026. The importance of the number is that, for practical estate planning purposes, it removes the old rule as a meaningful limitation on the planning horizon.
The Legislature went further in 2025.
House Bill 2711 expanded the 1,000 year rule to trusts created on or after July 1, 2025. The enacted statute says that, for those trusts, the references to 90 years in West Virginia’s statutory rule against perpetuities are replaced with 1,000 years, unless the trust itself expressly requires the beneficial interests to vest or terminate sooner.
The legislation passed during the 2025 Regular Session and became effective July 7, 2025.
For estate planners, that is a significant change.
Why Should a Normal Family Care?
At this point, somebody is probably thinking, “That is interesting, Brandon, but I am not a Rockefeller.”
Fair enough.
The phrase “dynasty trust” tends to conjure images of oil families, billionaires and people with buildings named after their grandparents. That is not necessarily what we are talking about.
Consider a reasonably successful West Virginia family.
Mom and Dad own a house, some land, retirement accounts, life insurance and perhaps a business. Over a lifetime they accumulate $1 million or $2 million in assets. That is not an outrageous number anymore, particularly when life insurance and retirement assets are included.
The traditional estate plan might leave everything to the surviving spouse, then divide everything equally among the children.
There is nothing inherently wrong with that, but there is another question we can now ask more seriously.
Why does the money necessarily need to come out of trust?
Suppose I leave $300,000 to my daughter outright. Once she receives it, it is hers. If she later gets divorced, has creditor problems, makes terrible financial decisions, develops a substance abuse problem, or simply spends it, the inheritance may disappear.
Now suppose instead that I establish a properly drafted trust for her benefit.
She can potentially benefit from the property without simply receiving a check. The trustee can invest it. The trust can purchase assets. Depending upon how the trust is structured and administered, it may provide meaningful protection against problems that I cannot possibly predict today.
Then, when my daughter dies, the remaining assets can continue for my grandchildren.
When they die, the property can potentially continue for their descendants.
That is where the change in West Virginia law becomes powerful.
We Can Plan for Problems We Cannot See Yet
Estate planning is fundamentally an exercise in predicting the future, and none of us is particularly good at predicting the future.
I can sit across the desk from a 55 year old client and talk intelligently about his children. He knows whether his son is responsible with money. He knows whether his daughter has a difficult marriage. He knows whether one child has special needs.
What neither of us knows is what his 4 year old granddaughter’s life will look like when she is 45.
We certainly do not know anything about the great grandchildren who have not been born.
Long term trusts allow us to stop pretending that we do.
Rather than trying to predict every problem, we can build a structure designed to adapt to problems as they arise. We can give trustees discretion, establish standards for distributions, provide mechanisms for replacing trustees, grant appropriate powers of appointment, and allow future generations some flexibility while still preserving the basic protective structure.
The 2025 legislation also addresses powers of appointment, including situations where one power is exercised to create another. Under the new provisions, future interests created through chains of certain non general or testamentary powers are treated as having been created when the first such power was created.
That sounds painfully academic, and it is, but the practical point is easier to understand. The Legislature gave estate planners a very long runway, while still establishing rules for where that runway begins.
This Is Not About Controlling Your Family From the Grave
There is an important distinction between protecting wealth and controlling descendants.
I generally do not like trusts that try to micromanage somebody’s life from a cemetery.
“You get $10,000 if you graduate from college, unless you major in philosophy, you get another $20,000 if you marry somebody Grandpa would have liked, and you get nothing if you buy a Ford.”
We can draft provisions like that, but that does not mean we should.
Good estate planning is not about exercising maximum control. It is about creating useful protection while leaving enough flexibility for people living decades from now to deal with circumstances we cannot anticipate.
The best long term trust is usually not the one with the most rules. It is the one with the right rules.
The Compounding Effect Matters Too
There is another part of this discussion that is easy to overlook.
Money compounds.
If a family leaves $500,000 in trust and that money is prudently invested, distributed responsibly, and allowed to continue growing over generations, we are no longer simply talking about preserving the original $500,000.
We are talking about preserving a pool of family capital.
That capital might help educate grandchildren. It might provide the down payment on a home. It might help start a business. It might provide support for a disabled descendant. It might protect a family member during a financial catastrophe.
More importantly, every generation does not necessarily have to start over.
Families spend enormous amounts of time creating wealth, then often use estate plans designed primarily to distribute it as quickly as possible. West Virginia law now gives us considerably more room to ask whether immediate distribution is really the best objective.
Sometimes it is.
Sometimes it absolutely is not.
West Virginia Is Becoming a Trust Planning State
There is a broader policy issue here as well.
States compete for trust business.
For years, sophisticated estate planning attorneys have looked toward jurisdictions such as South Dakota, Nevada and Delaware when designing certain long term trusts. Their legislatures deliberately created favorable trust laws because trusts bring assets, professional services, financial institutions and economic activity into a state.
West Virginia’s recent legislation shows that we are beginning to think along those same lines.
The 2023 Private Trust Company Act created a framework for private trust companies and paired that legislation with the 1,000 year rule for trusts administered through them. The 2025 legislation then expanded the 1,000 year treatment to trusts generally created on or after July 1, 2025.
That means West Virginians no longer necessarily need to look outside West Virginia simply because they want to engage in serious multigenerational trust planning.
We can do much more of that planning here at home.
What This Changes in the Estate Planning Conversation
For me, the biggest effect is not that I am suddenly drafting 1,000 year trusts.
The change is that the conversation with a client is different.
Instead of asking only, “Who gets your property when you die?” we can ask, “What do you want this property to accomplish?”
Those are very different questions.
Do you want to give your children an inheritance, or do you want to create something that may benefit your family for generations?
Do you want your child to own inherited assets outright, or would you rather build protections around those assets?
What happens if your child divorces?
What happens if a future descendant is disabled?
What happens if someone develops a creditor problem?
What happens if the family business becomes substantially more valuable 30 years from now?
What happens if the $500,000 we are planning around today becomes several million dollars over the next two generations?
The law now gives us a much larger canvas on which to answer those questions.
That does not mean every family needs an elaborate dynasty trust, and it certainly does not mean every dollar should remain locked in trust forever. Estate planning should fit the family, the assets and the client’s objectives.
What it does mean is that an old legal limitation that once dictated part of the answer has largely ceased to dictate the answer for new West Virginia trusts.
A thousand years is, for any practical human purpose, forever.
The interesting question is no longer how long West Virginia law will let us plan.
The interesting question is what we should do with the opportunity.
