§ 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 current and noncontingent right, annually or more frequently, to a mandatory distribution of income, a specified dollar amount, or a percentage of value of some or all of the trust property;
(C) a current and noncontingent right, annually or more frequently, to withdraw income, a specified dollar amount, or a percentage of value of some or all of the trust property;
(D) a presently exercisable general power of appointment; or
(E) a right to receive an ascertainable part of the trust property on the trust’s termination which is not subject to the exercise of discretion or to the occurrence of a specified event that is not certain to occur.
(b) Subject to subsection (c) and Section 19-3D-14:
(1) an authorized fiduciary that has expanded distributive discretion over the entire principal of a first trust for the benefit of one or more current beneficiaries may exercise the decanting power over the entire principal of the first trust; and
(2) an authorized fiduciary that has expanded distributive discretion over part but not all of the principal of a first trust may exercise the decanting power over that part of the principal over which the authorized fiduciary has expanded distributive discretion.
(c) Subject to Section 19-3D-13, in an exercise of the decanting power under this section, a second trust may not:
(1) include as a current beneficiary a person that is not a current beneficiary of the first trust, except as otherwise provided in subsection (d);
(2) include as a presumptive remainder beneficiary or successor beneficiary a person that is not a current beneficiary, presumptive remainder beneficiary, or successor beneficiary of the first trust, except as otherwise provided in subsection (d); or
(3) reduce or eliminate a vested interest.
(d) Subject to subsection (c)(3) and Section 19-3D-14, in an exercise of the decanting power under this section, a second trust may be a trust created or administered under the law of any jurisdiction and may:
(1) retain a power of appointment granted in the first trust;
(2) omit a power of appointment granted in the first trust, other than a presently exercisable general power of appointment;
(3) create or modify a power of appointment if the powerholder is a current beneficiary of the first trust and the authorized fiduciary has expanded distributive discretion to distribute principal to the beneficiary; and
(4) create or modify a power of appointment if the powerholder is a presumptive remainder beneficiary or successor beneficiary of the first trust, but the exercise of the power may take effect only after the powerholder becomes, or would have become if then living, a current beneficiary.
(e) A power of appointment described in subsection (d) may be general or nongeneral. The class of permissible appointees in favor of which the power may be exercised may be broader than or different from the beneficiaries of the first trust.

Legislative History

(Act 2018-519, §11.)