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19-3D-4
Section 19-3D-4 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. FIDUCIARY DUTY. (a)
In exercising the decanting power, an authorized fiduciary shall act in accordance with its
fiduciary duties, including the duty to act in accordance with the purposes of the first trust.
(b) This chapter does not create or imply a duty to consider or exercise the decanting power
or to inform beneficiaries about the applicability of this chapter. (c) Except as otherwise
provided in a first-trust instrument, for purposes of this chapter and Sections 19-3B-801
and 19-3B-802(a), the terms of the first trust are deemed to include the decanting power.
(Act 2018-519, ยง4.)...
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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-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-16
Section 19-3D-16 Change in compensation. (a) If a first-trust instrument specifies an authorized
fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the
fiduciary's compensation above the specified compensation unless: (1) all qualified beneficiaries
of the second trust consent to the increase in a signed record; or (2) the increase is approved
by the court. (b) If a first-trust instrument does not specify an authorized fiduciary's compensation,
the fiduciary may not exercise the decanting power to increase the fiduciary's compensation
above the compensation permitted by Chapter 3B (commencing with Section 19-3B-101) of this
title, unless: (1) all qualified beneficiaries of the second trust consent to the increase
in a signed record; or (2) the increase is approved by the court. (c) A change in an authorized
fiduciary's compensation which is incidental to other changes made by the exercise of the
decanting power is not an increase in the fiduciary's...
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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-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-17
Section 19-3D-17 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. RELIEF FROM LIABILITY
AND INDEMNIFICATION. (a) Except as otherwise provided in this section, a second-trust instrument
may not relieve an authorized fiduciary from liability for breach of trust to a greater extent
than the first-trust instrument. (b) A second-trust instrument may provide for indemnification
of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity
under the first trust for any liability or claim that would have been payable from the first
trust if the decanting power had not been exercised. (c) A second-trust instrument may not
reduce fiduciary liability in the aggregate. (d) Subject to subsection (c), a second-trust
instrument may divide and reallocate fiduciary powers among fiduciaries, including one or
more trustees, distribution advisors, investment advisors,...
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19-3A-103
Section 19-3A-103 Fiduciary duties; general principles. (a) In allocating receipts and disbursements
to or between principal and income, and with respect to any matter within the scope of Article
2 and Article 3, a fiduciary: (1) Shall administer a trust or decedent's estate in accordance
with the terms of the trust or the will, even if there is a different provision in this chapter;
(2) May administer a trust or decedent's estate by the exercise of a discretionary power of
administration given to the fiduciary by the terms of the trust or the will, even if the exercise
of the power produces a result different from a result required or permitted by this chapter;
(3) Subject to the provisions of Section 19-3A-104, shall administer a trust or decedent's
estate in accordance with this chapter if the terms of the trust or the will do not contain
a different provision or do not give the fiduciary a discretionary power of administration;
and (4) Shall add a receipt or charge a disbursement...
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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-22
Section 19-3D-22 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. SAVING PROVISION. (a)
If exercise of the decanting power would be effective under this chapter except that the second-trust
instrument in part does not comply with this chapter, the exercise of the power is effective
and the following rules apply with respect to the principal of the second trust attributable
to the exercise of the power: (1) A provision in the second-trust instrument which is not
permitted under this chapter is void to the extent necessary to comply with this chapter.
(2) A provision required by this chapter to be in the second-trust instrument which is not
contained in the instrument is deemed to be included in the instrument to the extent necessary
to comply with this chapter. (b) If a trustee or other fiduciary of a second trust determines
that subsection (a) applies to a prior exercise of the...
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