19-3D-21
Section 19-3D-21 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. NEED TO DISTRIBUTE NOT REQUIRED. An authorized fiduciary may exercise the decanting power whether or not under the first trust's discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of the exercise. (Act 2018-519, ยง21.)...
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19-3D-2
Section 19-3D-2 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. DEFINITIONS. In this chapter the following terms have the following meanings: (1) APPOINTIVE PROPERTY. The property or property interest subject to a power of appointment. (2) ASCERTAINABLE STANDARD. A standard relating to an individual's health, education, support, or maintenance within the meaning of 26 U.S.C. Section 2041(b)(1)(A), as amended, or 26 U.S.C. Section 2514(c)(1), as amended, and any applicable regulations. (3) AUTHORIZED FIDUCIARY. (A) A trustee or other fiduciary, other than a settlor, that has the discretion to distribute or direct a trustee to distribute part or all of the principal of the first trust to one or more current beneficiaries; (B) a special fiduciary appointed under Section 19-3D-9; or (C) a special-needs fiduciary under Section 19-3D-13. (4) BENEFICIARY. A person that: (A) has a present or...
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19-3D-12
Section 19-3D-12 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. DECANTING POWER UNDER LIMITED DISTRIBUTIVE DISCRETION. (a) In this section, "limited distributive discretion" means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard. (b) An authorized fiduciary that has limited distributive discretion over the principal of the first trust for the benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust. If an authorized fiduciary has limited distributive discretion over part but not all of the principal of a first trust, the fiduciary may exercise the decanting power over that part of the principal over which the authorized fiduciary has limited distributive discretion. (c) Under this section and subject to Section 19-3D-14, a second trust may be created or...
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19-3D-15
Section 19-3D-15 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. TRUST LIMITATION ON DECANTING. (a) An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of: (1) the decanting power; or (2) a power granted by state law to the fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust. (b) Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of: (1) the decanting power; or (2) a power granted by state law to a fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust. (c) A general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiary's...
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19-3D-13
Section 19-3D-13 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. TRUST FOR BENEFICIARY WITH DISABILITY. (a) In this section the following terms have the following meanings: (1) BENEFICIARY WITH A DISABILITY. A beneficiary of a first trust who the authorized fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been adjudicated incompetent or incapacitated. (2) GOVERNMENTAL BENEFITS. Financial aid or services from a state, federal, or other public agency. (3) SPECIAL-NEEDS FIDUCIARY. With respect to a trust that has a beneficiary with a disability: (A) a trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the principal of a first trust to one or more current beneficiaries; (B) if no trustee or fiduciary has discretion under...
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19-3D-26
Section 19-3D-26 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. LATER-DISCOVERED PROPERTY. (a) Except as otherwise provided in subsection (c), if exercise of the decanting power was intended to distribute all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust and property paid to or acquired by the first trust after the exercise of the power is part of the trust estate of the second trust or trusts. (b) Except as otherwise provided in subsection (c), if exercise of the decanting power was intended to distribute less than all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power remains part of the trust estate of the first trust. (c) An authorized fiduciary may provide in an...
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19-3D-14
Section 19-3D-14 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. PROTECTION OF CHARITABLE INTEREST. (a) In this section the following terms have the following meanings: (1) DETERMINABLE CHARITABLE INTEREST. A charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event, or after the passage of a specified time, and which is unconditional or will be held solely for charitable purposes. (2) UNCONDITIONAL. Not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the United States Internal Revenue Code of 1986, as amended, on the date of the distribution, if the charitable organization meets the requirement on the date of determination. (b) If a first trust...
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19-3D-19
Section 19-3D-19 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. TAX-RELATED LIMITATIONS. (a) In this section the following terms have the following meanings: (1) GRANTOR TRUST. A trust as to which a settlor of a first trust is considered the owner under 26 U.S.C. Sections 671 through 677, as amended, or 26 U.S.C. Section 679, as amended. (2) INTERNAL REVENUE CODE. The United States Internal Revenue Code of 1986, as amended. (3) NONGRANTOR TRUST. A trust that is not a grantor trust. (4) QUALIFIED BENEFITS PROPERTY. Property subject to the minimum distribution requirements of 26 U.S.C. Section 401(a)(9), as amended, and any applicable regulations, or to any similar requirements that refer to 26 U.S.C. Section 401(a)(9) or the regulations. (b) An exercise of the decanting power is subject to the following limitations: (1) If a first trust contains property that qualified, or would have...
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19-3D-7
Section 19-3D-7 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. NOTICE; EXERCISE OF DECANTING POWER. (a) In this section, a notice period begins on the day notice is given under subsection (c) and ends 59 days after the day notice is given. (b) Except as otherwise provided in this chapter, an authorized fiduciary may exercise the decanting power without the consent of any person and without court approval. (c) Except as otherwise provided in subsection (f), an authorized fiduciary shall not exercise the decanting power prior to 60 days after giving record notice of the intended exercise of the decanting power to: (1) each settlor of the first trust, if living or then in existence; (2) each qualified beneficiary of the first trust; (3) each holder of a presently exercisable power of appointment over any part or all of the first trust; (4) each person that currently has the right to...
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19-3D-9
Section 19-3D-9 THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER IN THE 2018 REGULAR SESSION, EFFECTIVE JANUARY 1, 2019. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. COURT INVOLVEMENT. (a) On application of an authorized fiduciary, a person entitled to notice under Section 19-3D-7 (c), a beneficiary, or with respect to a charitable interest that is not entirely held by or for the benefit of one or more identified and existing charitable organizations, the Attorney General or other person that has standing to enforce the charitable interest, the court may: (1) provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under this chapter and consistent with the fiduciary duties of the authorized fiduciary; (2) appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under this chapter and to exercise the decanting power; (3) approve an exercise of the...
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