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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-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-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, §21.)...
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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-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-11
Section 19-3D-11 Decanting power under expanded distributive dicretion. (a) In this section
the following terms have the following meanings: (1) NONCONTINGENT RIGHT. A right that is
not subject to the exercise of discretion or the occurrence of a specified event that is not
certain to occur. The term does not include a right held by a beneficiary if any person has
discretion to distribute property subject to the right to any person other than the beneficiary
or the beneficiary's estate. (2) PRESUMPTIVE REMAINDER BENEFICIARY. A qualified beneficiary
other than a current beneficiary. (3) SUCCESSOR BENEFICIARY. A beneficiary that is not a qualified
beneficiary on the date the beneficiary's qualification is determined. The term does not include
a person that is a beneficiary only because the person holds a nongeneral power of appointment.
(4) VESTED INTEREST. (A) A right to a mandatory distribution that is a noncontingent right
as of the date of the exercise of the decanting power; (B) a...
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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-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-18
Section 19-3D-18 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. REMOVAL OR REPLACEMENT
OF AUTHORIZED FIDUCIARY. An authorized fiduciary may not exercise the decanting power to modify
a provision in a first-trust instrument granting another person power to remove or replace
the fiduciary unless: (1) the person holding the power consents to the modification in a signed
record and the modification applies only to the person; (2) the person holding the power and
the qualified beneficiaries of the second trust consent to the modification in a signed record
and the modification grants a substantially similar power to another person; or (3) the court
approves the modification and the modification grants a substantially similar power to another
person. (Act 2018-519, §18.)...
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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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