72-39-203. Notice -- exercise of decanting power. (1) In this section, a notice period begins on the day notice is given under subsection (3) and ends 60 days after the day notice is given.
(2) 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.
(3) Except as otherwise provided in subsection (6), an authorized fiduciary shall give notice in a record of the intended exercise of the decanting power not later than 60 days, exclusive of the day notice is given, before the exercise to:
(a) each settlor of the first trust, if living or then in existence;
(b) each qualified beneficiary of the first trust;
(c) each holder of a presently exercisable power of appointment over any part or all of the first trust;
(d) each person that currently has the right to remove or replace the authorized fiduciary;
(e) each other fiduciary of the first trust;
(f) each fiduciary of the second trust; and
(g) the attorney general, if 72-39-210(2) applies.
(4) An authorized fiduciary is not required to give notice under subsection (3) to a person that is not known to the fiduciary or is known to the fiduciary but cannot be located by the fiduciary after reasonable diligence.
(5) A notice under subsection (3) must:
(a) specify the manner in which the authorized fiduciary intends to exercise the decanting power;
(b) specify the proposed effective date for exercise of the power;
(c) include a copy of the first-trust instrument; and
(d) include a copy of all second-trust instruments.
(6) The decanting power may be exercised before expiration of the notice period under subsection (1) if all persons entitled to receive notice waive the period in a signed record.
(7) The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under 72-39-205 asserting that:
(a) an attempted exercise of the decanting power is ineffective because it did not comply with this chapter or was an abuse of discretion or breach of fiduciary duty; or
(b) 72-39-218 applies to the exercise of the decanting power.
(8) An exercise of the decanting power is not ineffective because of the failure to give notice to one or more persons under subsection (3) if the authorized fiduciary acted with reasonable care to comply with subsection (3).
History: En. Sec. 7, Ch. 177, L. 2021.