DE HB 103

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Description

Section 1 of this Act amends§ 3301(d) of Title 12 by adding to the definition of “fiduciary” enforcers of purpose trusts under § 3556 of Title 12 that are acting in a fiduciary capacity, by adding to the definition of "nonfiduciary" enforcers of purpose trusts under § 3556 of Title 12 that are not acting in a fiduciary capacity, and by clarifying that others that are not acting in a fiduciary capacity are also nonfiduciaries. Section 2 of this Act amends § 3315(b) of Title 12 so that the statute now states expressly the practical effect of a discretionary interest in a trust merely being an expectancy, which is that a beneficiary of such an interest cannot compel a distribution from the trust. The statute continues to provide, however, that the standard of review under § 3315(a) of Title 12 applies in a suit by a beneficiary for abuse of discretion. Section 2 of this Act also deletes in 2 instances the use of the word “trustee” as being redundant because “fiduciary,” as defined in § 3301 of Title 12, already includes a trustee. Section 3 of this Act amends § 3326 of Title 12 to state expressly within the statute that a modification of a trust by consent while the trustor is living (under§ 3342 of Title 12) may be used to effectuate the resignation of a trustee or other officeholder. Section 3 of this Act also amends § 3326 to state expressly within the statute that a nonjudicial settlement agreement (under§ 3338 of Title 12) may be used to effectuate the resignation of a trustee or other officeholder where the trust’s governing instrument is silent concerning both resignation and the appointment of successor trustees or other officeholders. It is intended that these express statements in § 3326 of Title 12 will reduce the need to resort to a court petition to effectuate the resignation and resulting appointment. Section 4 of this Act amends § 3556 of Title 12 so that the statute: (1) Expressly states that a person is not deemed to be a beneficiary of a purpose trust solely by virtue of receiving disbursements from the purpose trust. (2) Defines the term “enforcer” and permits the governing instrument of a purpose trust to grant the enforcer or some other person exclusive standing to enforce the terms of a purpose trust. (3) Provides that an enforcer will serve as a fiduciary of the purpose trust unless the governing instrument provides otherwise. (4) States that a person that accepts an appointment as enforcer submits to personal jurisdiction in Delaware. (5) If there are no identifiable beneficiaries of the purpose trust, authorizes the enforcer to act as an “interested person” in the context of a nonjudicial settlement agreement under§ 3338 of Title 12 or a nonjudicial modification under§ 3342 of Title 12. The changes in Section 4 of this Act were made to update Delaware law consistent with modern purpose trust statutes in other jurisdictions. Section 5 of this Act amends § 3580 of Title 12 to add to the definition of “trustee” for purposes of Subchapter VII of Chapter 35 of Title 12 by expressly including enforcers of purpose trusts under§ 3556 of Title 12. Section 6 of this Act amends § 1513 of Title 13 to address an ambiguity inherent in the situation where one spouse makes a gift in trust for the other spouse. This Section clarifies that in such circumstance, the donee’s interest in the trust is not marital property unless the trust agreement provides otherwise. Section 7 of this Act provides an effective date.