§ 564-B:8-802 — Duty of Loyalty

New Hampshire § 564-B:8-802

• Jurisdiction: New Hampshire
• Title LVI: PROBATE COURTS AND DECEDENTS' ESTATES
• Ch. 564-B: NEW HAMPSHIRE TRUST CODE
• Subdivision: ARTICLE 8DUTIES AND POWERS OF TRUSTEE

Text

(a) A trustee shall administer, invest and manage the trust and distribute the trust property solely in the interests of the beneficiaries.
(b) Subject to the rights of persons dealing with or assisting the trustee as provided in RSA 564-B:10-1012, a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or which is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:
(1) the transaction was authorized by the terms of the trust;
(2) the transaction was approved by the court;
(3) the beneficiary did not commence a judicial proceeding within the time allowed by RSA 564-B:10-1005;
(4) the beneficiary consented to the trustee's conduct, ratified the transaction, or released the trustee in compliance with RSA 564-B:10-1009; or
(5) the transaction involves a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee.
(c) A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with:
(1) the trustee's spouse;
(2) the trustee's descendants, siblings, parents, or their spouses;
(3) an agent or attorney of the trustee; or
(4) a corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee's best judgment.
(d) A transaction between a trustee and a beneficiary that does not concern trust property but that occurs during the existence of the trust or while the trustee retains significant influence over the beneficiary and from which the trustee obtains an advantage is voidable by the beneficiary unless the trustee establishes that the transaction was fair to the beneficiary.
(e) A transaction not concerning trust property in which the trustee engages in the trustee's individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust.
(f) The following transactions, if fairly priced and in accordance with the interest of the beneficiaries and the purposes of the trust, are not presumed to be affected by a conflict between the trustee's personal and fiduciary interest provided that any investment made pursuant to the transaction otherwise complies with the prudent investor rule of article 9:
(1) an investment by a trustee in securities of an investment company or investment trust to which the trustee, or its affiliate, provides services in a capacity other than as trustee;
(2) the placing of securities transactions by a trustee through a securities broker that is a part of the same company as the trustee, is owned by the trustee, or is affiliated with the trustee;
(3) any loan from the trustee or its affiliate; or
(4) an investment in an insurance contract purchased from an insurance agency owned by, or affiliated with, the trustee, or any of its affiliates.
(g) If compensation, in addition to the trustee's fees charged to the trust is paid, to the trustee, its affiliate, or associated entity for any transaction or for the provision of services described in subsection (f) the trustee shall at least annually notify the persons that would be entitled under RSA 564-B:8-813 to receive a copy of the trustee's annual report of the rate or method by which the compensation was determined.
(h) In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.
(i) The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee.
(j) This section does not preclude any of the following transactions to the extent that the transaction is fair to the beneficiaries:
(1) An agreement between a trustee and a beneficiary relating to the appointment of the trustee or any of its affiliates;
(2) An agreement between a trustee and a beneficiary relating to the compensation of the trustee or any of its affiliates;
(3) Payment of reasonable compensation to the trustee or any of its affiliates;
(4) A transaction between a trust and any of the following:
(A) Another trust of which the trustee is a trustee, trust advisor, or trust protector or in which a beneficiary has an interest;
(B) A decedent's estate of which the trustee is an executor or other fiduciary or in which a beneficiary has an interest;
(C) A conservatorship of which the trustee is a conservator or in which a beneficiary has an interest; or
(D) A guardianship of which the trustee is a guardian or in which a beneficiary has an interest;
(5) A deposit of trust money in a regulated financial-service institution operated by the trustee or any of its affiliates;
(6) An advance of money by the trustee or any of its affiliates for the protection of the trust;
(7) A delegation by a trustee to an agent that is affiliated or associated with the trustee; or
(8) A transaction made pursuant to a delegation by a trustee to an agent that is affiliated or associated with the trustee.

Legislative History

2004, 130:1. 2005, 270:20, 21. 2006, 320:61, eff. Aug. 19, 2006. 2017, 257:25, 26, eff. July 18, 2017.