§ 15-16-915 — Trust limitation on decanting

(1) An authorized fiduciary may
not exercise the decanting power to the extent the first-trust instrument expressly
prohibits exercise of:

(a) The decanting power; or

(b) 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.

(2) Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of:

(a) The decanting power; or

(b) 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.

(3) 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 interest does not preclude exercise of the decanting power.

(4) Subject to subsections (1) and (2) of this section, an authorized fiduciary
may exercise the decanting power under this part 9 even if the first-trust
instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part or all of the principal of the first trust to
another trust.

(5) If a first-trust instrument contains an express prohibition described in
subsection (1) of this section or an express restriction described in subsection (2) of
this section, the provision must be included in the second-trust instrument.

Legislative History

Source: L. 2016: Entire part added, (SB 16-085), ch. 228, p. 883, � 1, effective August 10.