All Rights of Respective Persons and Entities Reserved.
This document is not designed or intended to provide financial, investment, tax, legal, accounting or other professional advice as the provi-sion of same always requires consideration of individual circumstances. If any reader required professional advice in any of these areas, they
should seek the services of a professional advisor.
IRS Circular 230 Disclosure: Any discussion of US tax matters contained herein (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: avoiding penalties that may be imposed by the Internal Revenue Service; or promoting, market-
ing or recommending to another party any transaction or matter addressed herein.
AA CCoommppaarr iissoonn ooff ““AAttttrraacctt iivvee”” SSttaatteess’’ TTrruusstt LLaawwss
II .. IInnttrroodduuccttiioonn Since the 1990’s a trust law revolution has been underway. This revolution has been driven by a number of changes. Some have been common law based, such as the Restatement (Third) Prudent Investor Rule, but the majority has been statutorily based. Relative to the statutorily based changes, an elite group of states have tuned their trust laws to provide world-class trust law features.
II II .. CCeerrttaaiinn SSttaatteess DDeemmoonnssttrraattee TTrruusstt LLaaww LLeeaaddeerrsshhiipp In a recent article in Trusts & Estates, the authors, which included John P.C. Duncan, Esq., whose earlier work inspired this presentation, singled out Delaware, New Hampshire, South Dakota and Tennessee as having “demonstrated broad-ranging trust leadership in recent years…”2 In another work by Mr. Duncan,3 he sets forth a list of the changes that have been forthcoming during the recent “trust law revolution:
TTrruusstt LLaawwss Ø Prudent Investor Act—1991
New investment rules
Delegation authority
Statutory support for v Preemptive authority of trust provisions v Legitimate reasons to maintain concentrations
Ø Innovations beyond the Prudent Investor Act
Dynasty trusts, including dynasty purpose trusts
Modern Principal and Income Acts—Distributions flexibility
Statutory support for: v Asset protection trusts v Amending trust instruments in and out of court
v Flexible treatment of conflicts v Directed trustees, trust advisors and protectors
Ø Interstate personal trust services legitimated and facilitated (virtually non-existent be-fore the 1990s)
Trustees may act wherever family members or their assets are located
Dramatic variations in quality and flexibility of trust laws among states can de-termine if a family strategic plan succeeds or fails
Dramatic cross-state trust taxation variations mean vast amounts can be at stake
- 2 -
Ø Delegation to Affiliates; Affiliated Investments
Prohibitions gave way to disclosure and consent
Invaluable both to institutional and family-based trustees (individuals and private trust companies)
II II II .. MMoosstt SSoouugghhtt AAfftteerr SSttaattee TTrruusstt LLaaww FFeeaattuurreess In that same work, Mr. Duncan comprised a list of most sought after state trust law features.4 This author has added several items to Mr. Duncan’s, the combined list of which is:
Ø No trust income taxes
Ø Interstate trust offices authorized Ø Better than average statutory support for asset concentrations and allows a settlor to
relieve the duty to diversify Ø Broad and express authority to use affiliated advisors and investments, including pri-
vate investment funds Ø Dynasty trusts and dynasty purpose trusts
Ø Asset protection trusts Ø Statutory support for settlors’ choices in trust instrument
Ø Express authority to delegate Ø Explicit authority for, and protection of, directed trustees and other “excluded fiduciaries”
Ø Duty of co-fiduciaries (trustees, advisors, protectors) to communicate with one another Ø Requirement of beneficiaries to maintain confidential information regarding trust assets
Ø Non-judicial trust amendatory authority and settlement agreements Ø Power to adjust and/or power to convert to unitrust
Ø Protection of trustees from liability for trust owned life insurance investment deci-sions and relative to exercise of policy options
Ø Availability to curtail reports to all or certain beneficiaries (to have “quiet” trusts) In Mr. Duncan’s original work he included a table comparing these items on the list above for the states of Delaware, New Hampshire, South Dakota and Nevada. This author has taken the concept of the tabular presentation and:
Ø Added information for the state of Tennessee, dropping Nevada from the table, be-cause despite very recent improvements in Nevada’s trust laws, in the opinion of this author, its laws are still not in the class of those of the included states.
Ø Updated and flushed out the information contained in Mr. Duncan’s original table. Ø Added citations to the information provided.
- 3 -
IIVV.. FFlloorriiddaa TTrruusstt LLaaww FFeeaattuurreess AAddddeedd For a number of reasons, including the state’s proximity to Latin America, Florida trust law has significant impact on international wealth planning and structuring. In light of that im-pact, as well as the interests of the members of the Miami, Florida USA chapter of the Socie-ty of Trust and Estate Practitioners (STEP), these materials now include information for the state of Florida5
VV.. CCoommppaarriissoonn ooff LLaawwss PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE
Trust Income Tax – Resident/ Non-Resident
Yes/No, if the trust is a “non-resident trust”, except for Del-aware source income, or, whether a resident or non-resident trust, has non-resident beneficiaries. “non-resident trust” if it was not: (i) created by the will of a decedent who at the time of death was domiciled in DE; (ii) created by, or con-sisting of property of, a person domiciled in DE; or (iii) during more than ½ of any year more than ½ of the trustees are DE residents or, if an entity, have an office for the conduct of business in DE. However, in the case of (iii), above, in addition to any income distribution de-duction ratable to a non-DE resident beneficiary, DE allows a deduction from DE taxable income on accumulations rata-ble to all persons who both: (i) are not domiciled in DE; and (ii) do not maintain “an abode” in DE at which they reside an aggregate 183 days or more during a taxable year.7
No tax upon income shall be levied by the state. Section
Yes (5% on dividends & inter-est income of NH resident ben-eficiary’s share of trust) / None on nonresident beneficiaries.
taxable “dividends” or “inter-est” differs slightly from the
n-nessee law.8
None / None Yes (6% on dividends & inter-e-
ficiary’s share of trust) / None on nonresident beneficiaries 9
Permits Interstate Trust Offices
None 10 11
Permits Interstate Fiduciary Activities
13 14 15 16
Duty to Diversify Trust Investments/ Support for Concentrated Investment Positions
waive trustee’s duty to diversify by provisions of instrument). any fiduciary acting under a governing instrument shall not be liable to anyone whose inter-ests arise from that instrument for breach of fiduciary duty for the fiduciary’s good faith reli-ance on the express provisions of such instrument.17
administer the trust as a prudent person.
736.1009 relieves a trustee who acts in reasonable reliance on the terms of a trust as ex-pressed in the trust instrument.
relieves a trustee from liability if the beneficiaries consent to the trustee's conduct.
several important “non-uniform provisions that give settlors flexibility relative to trustee’s duty to diversify and give sup-port for the holding of concen-trated investment positions (generally, a trustee is not liable for determining in good faith whether to diversify or not to diversify). Specifically, NH has modified
SD’s law was similar to a re-c-
tion describing in what form of assets a trustee may invest is titled “– ”
states: “may be made, regardless of any lack of diversification.”
support relative to the
several important “non-uniform provisions that give settlors flexibility relative to trustee’s duty to diversify and give sup-port for the holding of concen-trated investment positions. “reliance” on provi-sions of trust is sufficient to exculpate trustee from liability (i.e., the uniform “reasonable reliance”
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Duty to Diversify Trust Investments/ Support for Concentrated Investment Positions (Continued)
terms of a governing instrument (among other things) may ex-pand, restrict, eliminate, or otherwise vary the rights and interests of beneficiaries, in-cluding, but not limited to, the circumstances, if any, in which the fiduciary must diversify investments, and a fiduciary’s powers, duties, standard of care, rights of indemnification and liability to persons whose inter-ests arise from that instru-ment.18
“uniform” the extent the trustee acted in reasonable reliance on the pro-visions of the trust or court order or determined not to di-versify the investments of a trust in good faith in reliance on the express terms of the trust or a court order or pursuant to
-B:9-903 -B:9-
a-tion “unless the trustee reasona-bly determines that, because of special circumstances, the pur-poses of the trust are better served without diversifying.” -
n-guage, but the other special, non-uniform provisions of NH
x-press power to determine in good faith whether to diversify or not to diversify).19
lack of a duty to diversify and adding clear support for con-centrated investment positions was added with several very important amendments adopted
the amendments even more expressly relieve a trustee from the duty to diversify and sup-port a trustee’s holding of con-centrated positions under speci-fied circumstances. n-vestor rule was amended to state the following: “ u-dent investor rule may be ex-panded, restricted, eliminated, or otherwise altered by the terms of the trust instrument or court order. No trustee is liable to a beneficiary to the extent that the trustee acted in reliance on the provisions of the trust
“reasonable business judgment” standard from the rule. diversification of investments was amended to specifically permit a trustee not to diversify if the instrument or a court or-der provides for same: “ d-less of concentration or lack of diversification, the trustee need not diversify if the trust instru-ment … allows or directs reten-tion of assets forming part of the trust corpus.” section was further amended in
trustee from liability when act-ing in reliance (again, no rea-sonableness standard) on a pro-
particular investment or type of investment: “ u-
fiduciary to invest in a specific
– portfolio strategy, the word “shall,” as in, “ m-stances that a trustee shall con-sider” throughout “uniform”
“may.” “ m-stances that a trustee may con-sider…” the enumerated list of circum-stances somewhat more akin to guidance in determining the what is relevant for investing and managing trust assets. i-
that “the permissible invest--3- –
35-3-111” (the “legal list” in-vestments) remain permissible investments after adoption of
on-uniform sub-section (g) is not the exclusive standard of care relative to portfolio strate-
-14-104) are in addition to “the powers existing under other provisions of this code authorizing in-
seems to state that any pre-t-
egy that was deemed appropri-
with the freedom to deviate from the diversification re-
-14-105(b) and the life insurance investment liability exculpa-
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Duty to Diversify Trust Investments/ Support for Concentrated Investment Positions (Continued)
investment, type of investment, or investment concentration, no trustee is liable to a beneficiary to the extent that the trustee acted in reliance on the provi-sions of the trust instrument or court order.” for review of the activities of closely-held entities was re-moved if an instrument or court
d-
not limit its exculpation merely to review of assets upon ac-ceptance of trusteeship, alt-hough that is the title of the code section in which the amendment is placed. Query: Does the amendment just apply in such cases or to after-
-held entities? “closely-
held entities” is broad to in-clude any “entity” in which the following persons in aggregate
grandparents or their descend-ants, or any trust created by any of the above. e-cific provisions, SD has long had a provision that holds a trustee harmless for a trustee’s “reasonable and good faith” reliance on any express provi-sions of an instrument expand-ing, restricting, altering or elim-inating any provisions of the statutorily provided investment and management powers of fiduciaries.
30 giving further support for non-diversification /
b-section allows retention of as-sets with no liability that initial-ly come into a trust or are add-ed to it or that are acquired pursuant to proper authority, so long as the fiduciary in good faith and reasonable prudence considers it in the best interests of the trust & its beneficiaries or in the furtherance of the goals of the settlor as deter-mined by the terms of the in-
e-cifically includes in the defini-tion of these assets, closely held or “control” stock.
ons state that absent express provi-sions in instrument to contrary, insured, interest bearing depos-its in any financial institution, including that of the fiduciary
investment and reasonable amounts of non-interest bearing cash can be held for reasonable times for operations, pending distributions and investments.31 that pre-
u-tinely incorporated by reference
grant authority to retain without liability, investments that ini-tially come into the hands of the trustee so long as in the judgment of the fiduciary it is not clearly in the best interests of the trust and its beneficiaries
are not productive of income or are not investments the trustee would otherwise be authorized to make.
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Express Authority to Use Affiliates/Related Parties and/or Affiliated Delegates
33 of this analysis ranked DE as only “very good.” However, upon reading the current DE, NH & SD codes, this author can find very little difference among
fter its latest amendments, SD appears to be best in this area. difference in DE law vs. SD law is that under DE law, the code section describing “affili-ated investments” explicitly states they can be dealt with by a fiduciary: “Subject to the investment standards stated in
investor rule)34of this title, 35 while there is no such explicit
t-hough one could easily argue the DE language is merely for emphasis because all fiduciary investments are subject to their respective state’s prudent inves-tor rule.
Excellent – although not as specific as SD law as to what comprises an “affiliated in-vestment” or an “affiliated transaction,” tatute does not specifically provide for private investment partnerships, etc., operated by affiliates of the
sense, the NH law is more like the DE law.36
Perhaps the current “gold standard.” b-ing the investments in which a trustee may invest, it expressly authorizes the use of “affiliated investments.”37 entire section that describes in detail what constitutes “affiliat-ed investments.”38 n-clude all possible types of in-vestments, including private placements and hedge funds that are offered by direct or indirect affiliates of the trustee.
trustee to effect securities trans-actions, carry out brokerage, earn management and perfor-mance fees through, and obtain expense reimbursements from,
disclosure, not less often than annually, of the above fees to
a SD definition, because SD is
Excellent, a combination of provisions similar to DE & NH law.
-- Quite
fiduciary and affiliates specifi-cally allowed39 investment in affiliate invest-ment company and investment trust provided by law.40 of this presentation, this is one
compared. However, the author believes that a settlor, using talented legal counsel, can compensate for any statutory shortfalls through competent
why the author believes this, please see the comments made
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Express Authority to Use Affiliates/Related Parties and/or Affiliated Delegates (Continued)
particularly fallen behind SD, and to a lesser extent NH.
Express Authority to Invest in Affiliates/ Authority to Invest in Private Investment Funds
See comments above about the original author ranking DE as only “very good, .”41 and this author’s thoughts of its position relative to SD (particularly) and NH – DE specifically provides for investment in affiliate pri-vate investments.
d-ess
excellent in this area. While both states offer excellent law in this category, in the opinion of this author, SD has an edge in this category.
Perhaps the current “gold standard.” – See comments under the provision above.
See comments under the cate-gory “
” above
o-ry authority to invest in affili-ates, and to invest in private investment funds.
Dynasty Trusts Authorized
Yes – r-sonalty.43 interests in real estate. Howev-er, DE provides that a new 110-year period begins each time a limited power of appointment relative to the real estate is ex-ercised.44 can always convert realty to personalty by putting into an entity and putting the entity into trust.
Yes45 creating the perpetual interest
statute, which reads:
Perpetuities. against perpetuities shall not apply to any disposition of property or interest therein, created after the effective date of this section, if: disposition or creating the inter-est contains a provision which expressly exempts the instru-ment from the application of the rule against perpetuities; and r-son to whom the power is properly granted or delegated, has the power under the govern-ing instrument, applicable stat-ute, or common law, to sell, mortgage, or lease property for any period of time beyond the
interest created under the gov-erning instrument to vest in order to be valid under the rule against perpetuities.
Yes
force in SD.46 certain restraints on the absolute power of alienation: - “alienation may not be suspend-ed by any limitation or condi-tion whatever for a longer peri-od than during the continuance of the lives of persons in being plus a period of thirty years at the creation of the limitation or condition, except in the single case mentioned in §43-9-5 re-lating to contingent fee remain-der on a prior fee remainder.”47 - “Every future interest is void which suspends the abso-lute power of alienation for a longer period than is prescribed
a-tion is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed.”48 - “a term of years cannot be sus-pended for a longer period than the absolute power of alienation can be suspended in respect to a fee.”49
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Dynasty Trusts Authorized (Continued)
o apply to a trust or a trustee of a trust
-
- “power to alienate the subject of a trust is a suspension of the power of alienation. However, there is no suspension of the power of alienation by a trust or
trust if the trustee has power to sell, either expressed or im-plied, or if there is an unlimited power to terminate in one or more persons in being.”50 - “is created by exercise of a pow-er of appointment, the permis-sible period is computed from the time the power is exercised if the power is a general power including a testamentary gen-eral power or from the time the power is created if the power is not a general power.”51 - “period in which any instrument or any provision thereof created by a trust or other legal rela-tionship is not to be rendered invalid by the provisions of this chapter measured by actual, rather than possible, events, any of the assets which have not by the terms of the instrument become distributable or vested shall then be distributed as the court having jurisdiction di-rects, giving effect to the gen-eral intent of the creator of the trust or other instrument.” - None of these limitations regarding restraints on aliena-tion apply to: “ trust, for charitable purposes; corporations; corporation, society or associa-
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Dynasty Trusts Authorized (Continued)
tion; or (4) Employees’ trusts created as part of a pension, retirement, insurance, savings, stock bonus, profit sharing or similar plan established by an employer for the benefit of employees eligi-ble to participate.”53
Purpose Trust Authorized / Can they be Perpetual?
Yes / Yes, limited in the case of trusts for animals. 54
736.0408-
on death of animal. 736.0409- Non chari-table trust without an ascertain-able beneficiary may not be
years.
Yes / Yes, limited in the case of trusts for pets. 55
Yes / Yes, limited in the case of trusts for pets. 56
Yes, limited to 90 years, and otherwise limited in the case of pets.57
Trustee Decanting Power Yes – Broad 58 736.04117- if trustee has “absolute power” to invade principal that is not limited to specific or ascertainable pur-poses, such as health, educa-tion, maintenance and support.
Yes – Broad59 Yes – Broad, but trustee must decide that decanting is “neces-sary or desirable.”60
Yes – and most liberal in the US61 authors of another state’s stat-ute was concerned it might cause issues for less knowl-edgeable and less experienced attorneys…
Very Strong 3d-party Beneficiary Spendthrift Trust Protection
On its statutory face as strong as SD, however there are case law exceptions. creditor of a spendthrift trust only such rights to trust proper-ty as the terms of the instrument establishing the trust give the creditor. n-guage of the statute, the DE courts have recognized an ex-ception from the protection of the spendthrift provisions for obligations to support a spouse.
theory that the wife was not a
and was not bound by the spendthrift provisions of the trust from reaching those assets.
spendthrift trust income in the hands of the bank as trustee was
- a creditor or assignee of the beneficiary may not reach the interest on a dis-tribution by the trustee before receipt of the interest or distri-bution by the beneficiary. 736.00503 -Exceptions to spendthrift provision. a beneficiary's child, spouse or former spouse who has a
the beneficiary for support or maintenance. a judgment creditor who has provided service for the protec-tion of a beneficiary's intent in the trust. However, for purposes of the foregoing, “only as a last resort upon an initial showing that traditional methods of en-forcing the claim are insuffi-cient”.
Slightly stronger protection than “uniform”
spouses and former spouses remain exception creditors. However, in the case of spouses and former spouses, they can only reach assets subject to a spendthrift clause if such person “has a judgment or court order against the beneficiary for ali-mony but only for and to the extent that such judgment or court order expressly specifies the alimony amount attributable to the most basic food, shelter and medical needs of the spouse or former spouse.”65 NH also explicitly states that the Uni-
(or similar act) applies against a spendthrift trust66
Exceedingly strong. party beneficiaries into three categories: (i) “mandatory;” (ii) “support;” and (iii) discretion-ary; based on the language de-scribing the terms of the distri-
a-tions determine the rights a beneficiary has to force a poten-tial distribution. r-ests, the spendthrift statute states: “spendthrift provision, no credi-tor may reach present or future mandatory distributions from the trust at the trust level.
trustee to distribute past due mandatory distributions directly to a creditor.”68 and support interests in a spend-
Extremely strong. second only to SD due to sub-stantial modifications to “uni-form”
protection against creditors offered by “uniform” by removing virtually all ex-ception creditors for non-discretionary trusts that contain a spendthrift provision.71 only creditor that can reach the assets of a non-discretionary spendthrift trust is the state of
stated exception in favor of the
reason the author ranks SD higher here, as it’s statutes contain no obvious exemptions to spendthrift trust protection.
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Very Strong 3d-party Beneficiary Spendthrift Trust Protection (Continued)
also not an attachment within
63 reaching the interest of a bene-ficiary even when that benefi-ciary commits a willful tort.64
a claim of the state or the United States.
that are exception creditors in the case of spendthrift trusts exception creditors in the case of discretionary trusts.67
thrift trust, the code states: [N]o creditor may force a distribu-tion with regard to a mandatory or support interest. No creditor may reach present or future support distributions with re-gard to a mandatory or support interest. (Note there are no ex-ception creditors listed here).
i-ciary has any outstanding credi-tor, a trustee of a mandatory or a support interest may directly pay any expense on behalf of such beneficiary. No trustee is liable to any creditor for paying the expenses of a beneficiary of a mandatory or support inter-est.69 interests, the code states that they are neither property inter-ests nor enforceable rights, but mere expectancies. “No creditor may force a distribution with regard to a discretionary inter-
trustee to exercise the trustee’s discretion to make a distribution with regard to a discretionary interest…”70
- However, the author cannot find any statute that specifically
breach a spendthrift trust. 36-5-904 and 67-1-
i-sions for collection against “ ” by the state for tax liens and liens resulting from child support
e-ficiary’s interest in a trust is an “ ” no case law on point, and the statutes are not clear, leaving this an area for potential litiga-tion. - should not be a problem for non-
will not be liable (unless they
. - support (alimony) are a more
-5-904 provides that: “where there is an arrearage of child or spousal support in a
-D child support case or in which a lien arises pursuant
-5-901, the department is authorized, without further order of a court, to secure the assets of the obligor to satisfy the current obligations and the arrearage by ......forcing the sale
a-ble interest in property and by the distribution of the proceeds of the sale.” -
-D claim under reciprocity.73
-D cases typically are s-
see against a father in cases in which the mother is receiving
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Very Strong 3d-party Beneficiary Spendthrift Trust Protection (Continued)
state benefits, including wel-fare, food stamps, and health benefits, but any parent can
-D case regard-less of income and whether state benefits were paid.
period of child support is 18
upon the income of both par-ents, but the parent with the higher income pays the other parent based upon the differ-ence in income and the parent-ing time of each.
- -4- nnessee
Section 3)a)1)xi) states that trust income is included as income for the purposes of child support calculations.
- -4-07 g), which provides that when the presumptive child support order exceeds the amount found by multiplying a net income of ten thousand dollars ($10,000.00) per month by the percentages set out below, then the parent seeking child support in excess of the amount below must prove by a preponderance of the evidence that more child support is reasonably necessary to provide for the needs of the
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Very Strong 3d-party Beneficiary Spendthrift Trust Protection (Continued)
sand one hundred dollars ($
-six percent (46%), [or four thou-sand six hundred dollars ($
re children =
n-eficiary’s interest that is subject to distribution at the discretion of the trustee, regardless of whether the trust does or does not contain a spendthrift provi-sion¸ no creditor can compel a
literal reading of this statute leads one to believe there are no exceptions to this protection, not even in favor of the state of
74 Asset Protection Trusts Permitted
Yes75 x-ception for certain pre-existing
apply: “suffers death, personal injury or property damage on or before
i-tion by a transferor, which death, personal injury or prop-erty damage is at any time de-termined to have been caused in whole or in part by the tortious act or omission of either such transferor or by another person for whom such transferor is or was vicariously liable but only to the extent of such claim against such transferor or other person for whom such transfer-or is or was vicariously lia-ble.”76 - any medical professional who
736.0505(1)(b)- Self settled spendthrift trusts are not recog-
However, a settlor may fund a revocable trust with a life insurance policy and the policy and the death proceeds thereof will be protected from the claims of the settlor's creditors.
733.808(4)
Yes79 pre-
c-tion does not apply: “person who suffers death, per-sonal injury, or property dam-age on or before the date of a
osition by a trans-feror, which death, personal injury, or property damage is at any time determined to have been caused in whole or in part by the act or omission of either such transferor or by another person for whom such transfer-or is or was vicariously lia-ble.”80 - any medical professional who does procedures on minors because in certain cases the statute of limitations period on a minor’s tort claim doesn’t begin to run until they reach the age of majority.
Yes83 vs. 4 years for others). p-tion for certain pre-existing tort
p-ply: “death, personal injury, or prop-erty damage on or before the
by a transferor, which death, personal injury, or property damage is at any time deter-mined to have been caused in whole or in part by the act or omission of either such trans-feror or by another person for whom such transferor is or was vicariously liable.”84 - any medical professional who does procedures on minors because in certain cases the statute of limitations period on
Yes,87 unless the shortest “tail” period is your most important criteria, arguably the best
states. no exception for pre-existing tort claimants. alimony or marital property division must pass all of the following hurdles before reach-ing trust: - reduced to a final non-appealable order of a court; - subject of the claim is past due; and - reasonable attempts to collect the item that is the subject of the claim from other sources of the grantor or that further at-tempts to do so would be futile.
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Asset Protection Trusts Permitted (Continued)
does procedures on minors because in certain cases the statute of limitations period on a minor’s tort claim doesn’t begin to run until they reach the age of majority. settlor was married before the transfer as well as child support claims can be levied directly against the trust with no express pre-conditions.77 has a specific provision cover-ing forced heirship and legitime that would be beneficial when dealing with clients from many
i-“Paragraph (1)
[the paragraph making spouses and child support claimants
section shall not apply to any claim for forced heirship, le-gitime or elective share.78
settlor was married before the transfer as well as child support claims can be levied directly against the trust with no express pre-conditions.81 e-cific provisions covering forced heirship and legitime that would be beneficial when dealing with clients from many civil law
“
any claim for forced heirship or legitime or the elective share of the transferor’s surviving spouse, unless the transferor
for the purpose of defeating the surviving spouse’s elective share rights.”
a minor’s tort claim doesn’t begin to run until they reach the age of majority. settlor was married before the transfer as well as child support claims can be levied directly against the trust with no express pre-conditions.85 a specific provision covering forced heirship and legitime that would be beneficial when dealing with clients from many civil law i-
“ i-
shay it is ineffective against certain spousal claims and those
any claim for forced heirship or legitime.”86
have no effect and are statutori-ly excluded from having any
Beneficial with dealing with clients from many civil law
Statutory Support for Settlor’s Choices in Trust Instrument, Even When Those Choices Conflict with Default State Law
Yes – overriding conflicting default state laws, see the comments under the heading “Duty to Diversify
n-vestment Positions. choices over non-investment related aspects of trust admin-
heading “e-
ficiaries,” below.
736.0105, 736.0108 Yes – Excellent overriding conflicting default state laws, see the comments under the heading “Duty to
n-vestment Positions.” choices over non-investment related aspects of trust admin-istration: “uniform”
of and makes subject to the settlor’s wishes the standards of
irements for: -Whether or not a non-charitable irrevocable trust can be modified or terminated with-out court involvement and in certain circumstances, the court determining that the continua-
Yes – overriding conflicting default state laws, see the comments under the heading “Duty to
n-vestment Positions.” choices over non-investment related aspects of trust admin-istration, SD is not generally a “uniform” law state when it comes to trust law, although
law provisions as modified by progressive “uniform” states lthat, SD has statutes that are
intent: -”
Yes – Excellent overriding conflicting default state laws, see the comments under the heading “Duty to
n-vestment Positions. choices over non-investment related aspects of trust admin-istration: “uniform”
of and makes subject to the settlor’s wishes the standards of
s for: - “ ” and only re-
c-cordance with the terms and purposed of the trust and the interests of the beneficiaries;94 -
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Statutory Support for Settlor’s Choices in Trust Instrument, Even When Those Choices Conflict with Default State Law (Continued)
tion of the trust is not necessary to achieve any material purpose of the trust.88 -
age of the trust and certain other data concerning it;89 and - e-
for various reports and infor-mation.90
purposes of the trust as declared t-
ly amended, and must follow all the directions of the trustor given at that time, except as modified by the consent of all parties interested, and upon approval by the court.”91 - s-tee from all liability for breach of trust other than bad faith or as a result of gross negligence. - s-
l-
of age of the trust and certain other data concerning it and the
i-ous reports and information. “Qualified beneficiaries” are defined in the notice statute.93
age of the trust and certain other data concerning it;95 and - e-
for various reports and infor-mation.96
Express Authority to Delegate
ary standard (“investment” and “manage-ment” functions)97 - “Such agents may be hired to assist in the performance of such fiduciary’s administrative duties, whether discretionary or ministerial…”98 -”advice, if the fiduciary reason-ably believes in the exercise of its discretion that such an ar-rangement is in the best inter-ests of all interested persons and will improve the invest-ment performance or the effi-ciency of the administration of the fiduciary fund.”99 -seems somewhat confusing as to the liability of a trustee relative to the engagement of agents: “such agency relationship nor the
Excellent (“investment and management functions”). adds language to cover its ex-plicit provisions for delegation to affiliates.103
(“responsibilities of trustee-ship”).104 may seek the prior approval for the delega-tion from all known beneficiar-ies of the trust or from the
in writing by all known benefi-ciaries or by the court, the trus-tee is not liable for the acts of the person to whom the authori-ty is delegated except in the cases of gross misconduct or gross negligence by the delegat-ing trustee in the selection or monitoring of the agent.105
Excellent (“investment and management functions”).106 adds language to exculpate the trustee for acts performed or omitted pursuant to “written directions” to cover one of
well, presumably, to cover a trustee acting under written directions from the settlor of a revocable trust as provided for
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Express Authority to Delegate (Continued)
performance of such agent shall diminish, increase or otherwise affect the standard by which the performance of the fiduciary is governed.” paragraph by: “shall be liable for abusing its discretion in hiring such agent, for negligently hiring such agent, or for negligently continuing the agency relationship, but shall not otherwise be liable for the con-duct of such agent.”100 trustee relative to “directed” trusts is found under the DE directed trust section.101
Trust Protectors & Advisors Statutorily Recognized / Default Powers and Duties Defined
Yes / Yes107 “trust adviser” includes a “trust protector” under DE law.108 “Where 1 or more persons are given authority by the terms of a governing instrument to direct, consent to or disapprove a fiduciary’s actual or proposed investment decisions, distribu-tion decisions or other decision of the fiduciary, such persons shall be considered to be advis-ers and fiduciaries when exer-cising such authority unless the governing instrument otherwise provides.”109
Yes / Yes110 - adds
u-torily recognizes trust protec-tors and advisors and describes in detail their powers and du-ties. - e-
-B:- - -Unless a protector or advisor is also a beneficiary, they are explicitly stated to be fiduciar-
-B:- -However, subsection (b) of that section also states they are an “excluded fiduciary” (i.e., owe no duties), to the extent a power is granted or reserved to a fidu-ciary other than that protector or advisor. -subject to NH state court juris-
-B:- -
- -B:- -that “excluded fiduciaries” have no duty to review the actions any non-excluded fiduciary, i.e., a trustee, trust advisor or trust protector who holds a power to act.
Yes / Yes (narrow default defi-nitions) “trust protector” is a “fidu-ciary”.113 appointed, the excluded fiduci-ary (the fiduciary other than the protector) is not liable for ac-tions taken on the protector’s direction.114 c-tor are as provided in the gov-erning instrument and are to be discretionary and binding on
powers, which are couched in the language “may include the following.”115 any agreements to the contrary, all trust protectors and advisors automatically consent to the jurisdiction of SD.116
Yes / Yes117 non-
s-tee to act in accordance with the directions of a trust protector or advisor without having to con-sider whether “the attempted exercise is manifestly contrary to the terms of the trust or the trustee knows the attempted exercise would constitute a serious breach of a fiduciary duty that the person holding the power owes to the beneficiaries of the trust” “uniform” 808. b-section to expressly state that a trustee following directions
t-ed from liability as provided in
it clear that anyone holding a power to direct is a “presump-tive fiduciary.”118 -uniform initial section to pre-
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Trust Protectors & Advisors Statutorily Recognized / Default Powers and Duties Defined (Continued)
-uniform
trustee to act in accordance with the directions of a trust protec-tor or advisor without having to consider whether “the attempt-ed exercise is manifestly contra-ry to the terms of the trust or the trustee knows the attempted exercise would constitute a serious breach of a fiduciary duty that the person holding the power owes to the beneficiaries of the trust” “uniform” 808.111
conform to the NH trust advisor provisions found in NH’s added
that anyone investing assets of a trust pursuant to an agency agreement, or under a delega-tion, just as much a fiduciary as would be the trustee if the trus-tee were managing trust as-sets.119
this chapter, unless the context
(1) “ ” means a will, deed, agency agreement, or trust instrument;
(2) “ ” means any fiduci-ary relationship created by a governing instrument; and (3) “ ” includes all trustees, guardians, and other fiduciaries.
sabove language subjects all persons to at least the “full” fiduciary swho are investing assets pursu-ant to a discretionary agency agreement (e.g., a registered investment adviser’s fully dis-cretionary investment manage-ment contract), whether or not they are assets of a trust—and
UP
Directed Trustee’s or Excluded Fiduciary’s Exculpated from Liability for Other Fiduciaries’ Acts / Omissions
s-conduct or in some cases, gross negligence) “ t provides that a fiduciary is to follow the direction of an ad-viser, and the fiduciary acts in accordance with such a direc-tion, then except in cases of willful misconduct on the part of the fiduciary so directed, the fiduciary shall not be liable for
Excellent – “Excluded fiduciar-ies” are not liable for the action or inaction of a trustee, trust advisor or trust protector, or for “any loss that results from the failure of a trustee, trust advi-sor, or trust protector to take any action proposed by the excluded fiduciary where such
of the trustee, trust advisor, or trust protector, provided that an
Excellent – Excluded fiduciar-ies are not liable for any of the following: compliance with a direction of the trust advisor, custodial ac-count owner, or authorized designee of a custodial account owner. failure to take any action pro-posed by an excluded fiduciary
Excellent, since 1987 a-ble statutes states: “fiduciaries for losses. Whenever an instrument under which a fiduciary is acting re-serves to the settlor or vests an advisory or investment commit-tee or in any other person or persons including one (1) or more other fiduciaries, to the exclusion of the fiduciary or to
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Directed Trustee’s or Excluded Fiduciary’s Exculpated from Liability for Other Fiduciaries’ Acts / Omissions (Continued)
any loss resulting directly or indirectly from any such act.” “provides that a fiduciary is to make decisions with the consent of an adviser, then except in cases of willful misconduct or gross negligence on the part of the fiduciary, the fiduciary shall not be liable for any loss result-ing directly or indirectly from any act taken or omitted as a result of such adviser’s failure to provide such consent after
by the fiduciary.” to direction by an adviser or protector has no duty to monitor or advise the adviser or protec-tor, or to communicate with beneficiaries regarding disa-greements relative to the actions of the adviser or protector: “Whenever a governing instru-ment provides that a fiduciary is to follow the direction of an adviser with respect to invest-ment decisions, distribution decisions, or other decisions of the fiduciary, then, except to the extent that the governing in-strument provides otherwise, the fiduciary shall have no duty to: adviser; d-viser or consult with the advis-er; or warn or apprise any beneficiary or third party concerning in-stances in which the fiduciary would or might have exercised the fiduciary’s own discretion in a manner different from the manner directed by the adviser.
excluded fiduciary who had a duty to propose such action timely sought but failed to ob-tain the authorization.” e-
-B:- -under the provision immediate-ly above. “excluded fiduciary” can not be held liable for things for which they have no duty (e.g., items
-B:- -
a-tion of the trust advisor if that excluded fiduciary timely sought but failed to obtain that authorization. any action or inaction, except for gross negligence or willful misconduct, when an excluded
to the trust agreement or any other reason, to assume the role of trust advisor, trust protector, investment trust advisor, or distribution trust advisor. also relieved from any obliga-tion to perform investment or
investigations or to make rec-ommendations or evaluations with respect to any investments to the extent the trust advisor, custodial account owner, or authorized designee of a custo-dial account owner had authori-
s-position, or retention of any such investment. t protector is appointed, the excluded fiduci-ary is not liable for actions tak-en on the protector’s direc-tion.
the exclusion of one (1) or more of several fiduciaries, authority to direct the making or retention of any investment, or to perform any other act in the management or administra-tion of the fiduciary account, the excluded fiduciary or fidu-ciaries shall not be liable, either individually or as a fiduciary, for any loss resulting from the making or retention of any investment or other act pursu-ant to that direction.” “ -- upon written directions. irrevocable or testamentary trust is not liable to any benefi-ciary for any act performed or omitted pursuant to written directions from the person holding the power to revoke, terminate or amend the trust.
irrevocable or testamentary trust is not liable for any in-vestment action performed or omitted pursuant to written directions from the person to whom the power to direct the investment or management of the account is delegated by the trustor.”
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Directed Trustee’s or Excluded Fiduciary’s Exculpated from Liability for Other Fiduciaries’ Acts / Omissions (Continued)
evidence to the contrary, the actions of the fiduciary pertain-ing to matters within the scope of the adviser’s authority (such as confirming that the adviser’s directions have been carried out and recording and reporting actions taken at the adviser’s direction), shall be presumed to be administrative actions taken by the fiduciary solely to allow the fiduciary to perform those duties assigned to the fiduciary under the governing instrument and such administrative actions shall not be deemed to consti-tute an undertaking by the fidu-ciary to monitor the adviser or otherwise participate in actions within the scope of the advis-er’s authority.”
-Duty of Co-Fiduciaries (Trustees, Advisors, Protec-tors) to Communicate with One Another
e-u-
ciary duty to keep all other fiduciaries reasonably informed about the administration of the trust with respect to any duty or function being performed by that fiduciary to the extent rea-sonably necessary for the other fiduciaries to perform their duties. However, any fiduciary
and receiving any such information shall have no to: monitor the conduct of the fiduciary providing the infor-mation; provide advice to or consult with the fiduciary providing the information; or communicate with or warn or apprise any beneficiary or third party concerning instances in which the fiduciary receiving the information would or might have exercised the fiduciary's own discretion in a manner different from the manner in
Yes No statutory duty. However, as they are clearly fiduciaries such a duty may possibly be implied
No statutory duty. However, as they are clearly fiduciaries such a duty may possibly be implied
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE -Duty of Co-Fiduciaries (Trustees, Advisors, Protec-tors) to Communicate with One Another (Continued)
which such discretion was actu-ally exercised by the fiduciary providing the information.
Beneficiaries May Be Required to Maintain Confidential Information Regarding Trust Assets
No No Yes, under certain circumstanc-es. “written confidentiality re-strictions with respect to an asset of a trust, a trustee may
who is eligible to receive in-formation pursuant to this sec-tion about such asset shall agree in writing to be bound by the confidentiality restrictions that bind the trustee before receiving such information from the trus-tee.” 130
Yes, under certain circumstanc-es. duty of confidentiality with respect to a trust or its assets, a
beneficiary who is eligible to receive information pursuant to this section be bound by the duty of confidentiality that binds the trustee before receiv-ing such information from the trustee.131
Yes, under certain circumstanc-es. “written confidentiality re-strictions with respect to an asset of a trust, a trustee may
who is eligible to receive in-formation pursuant to this sec-tion about such asset shall agree in writing to be bound by the confidentiality restrictions that bind the trustee before receiv-ing such information from the trustee.”
Non-Judicial Settlement Agreements
No – statutory reference to same. However, DE does allow virtual representation in court proceed-ings, and unlike under the “uni-form” a-tion will be allowed “to the extent there is no material con-flict of interest.” “uniform”
“no conflict of interest.”
Yes “uniform” with several differences: -Unlike the uniform version of this section, the settlor is excluded from the class of “in-terested persons.”133 -list in the statute of matters that can be resolved by non-judicial settlement includes without limitation… “uniform” is not meant to be exhaustive,
explicitly state this is the case. -one item to the list of reasons for settlement / agreement: “the termination or modification of a trust.”134 However. under NH
it generally (if not always)
agreed upon termination or mod-ification.135
Yes,136 and virtual representa-tion is available.137
Yes138 n-clude a non-judicial settlement agreement than does “uniform”
-Unlike the uniform version of this section only the trustee
as opposed to the trustee and all “interested persons” (those persons whose consent would
a binding settlement in court). - t-ute of matters that can be re-solved by non-judicial settle-ment include but are not limited to… to the list. obtain virtual representation than under the “uniform” or in NH or SD, because it does
“no conflict of interest” be-tween those representing and
Trustee Liability for Trust Owned Life Insurance Investment Decisions & Relative to Exercise of Policy Options
No146 tutes is not as broad as
liability only arises if insurance is on life of grantor or on gran-
notice provisions be followed. Statute is written in very clear terms. - “Notwithstanding the foregoing provisions of this section, a trustee who discloses the application of this subsec-tion and the limitation of the trustee’s duties thereunder ei-ther in the governing instrument or in a separate writing deliv-ered to each insured at the in-ception of a contract of life insurance or thereafter if prior to an event giving rise to a
or retain a contract of life insur-ance upon the life of the trustor or the trustor’s spouse, or both, without liability for a loss aris-ing from the trustee’s failure to: (1) Determine whether the contract is or remains a proper investment; strength or changes in the fi-nancial strength of the life in-surance company; whether to exercise any policy option available under the con-tract;
of prudent investor rules. – No exculpa-
tion found – No exculpa-
tion found No147 grantor or on grantor & any of grantor’s: spouse, children, grandchildren or parents. Stat-ute is written in very clear, approaching blunt, terms. - “trustee regardi i-tion, retention or ownership of a contract of insurance on the life of [the above stated classes
duty to: contract of life insurance in the
trust, is or remains a proper investment; r-ance contract; the insurance company; (iii) Or otherwise. (B) Diversify the invest-ment; or options, rights, or privileges available under any contract of life insurance in the trust, in-cluding any right to borrow the cash value or reserve of the
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Trustee Liability for Trust Owned Life Insurance Investment Decisions & Relative to Exercise of Policy Options (Continued)
whether to diversify such con-tracts relative to 1 another or to other assets, if any, adminis-tered by the trustee; or the health or financial condition of the insured or insureds rela-tive to any such contract.”
Availability of Non-Judicial Modification / Termination of Trust by Consent
Other than the ability of corpo-rate trustees to terminate “small” trusts,148 apparently not. who view this as a benefit of DE law—as a way to be more certain that the settlor’s wishes
of this concept, see: - Perpet-ual Dynasty Trusts: Tax Plan-ning and Jurisdiction Selec-tion149 - Conditional Love: Incentive Trusts And The Inflexibility Problem 150
Sort of – Even while settlor is alive, a “non-judicial” modifi-cation or termination of a trust can only occur if consented to by all beneficiaries (not just
only if court concludes modifi-cation / continuance is not in-consistent with, or necessary to, achieve any material purpose of trust.151
Similar to “uniform” p-tions. whether or not you still have to have a court “affirm” the action.
ates: “Upon petition by a trustor, trustee, or beneficiary, upon a finding that the provisions of [the non-judicial modification
been met, the court shall affirm the proposed modification or termination of the trust.”
while settlor alive.153 t-ed by trustee with consent of all
comprise a smaller group than under the “uniform” 154) if the settlor does not object after receiving notice of proposed modification / termina-tion(which must be provided to settlor 60 days before proposed modification / termination), even if modification / termina-tion is inconsistent with a mate-rial purpose of trust. similar to NH’s except only
beneficiaries155. Ability to Curtail Reports to All or Certain Beneficiaries
Yes156 DE gives broad powers to a settlor to override default law in this area. Pertinent portions of the relevant statute state: “Not-withstanding any other provi-
the terms of a governing in-strument may expand, restrict, eliminate, or otherwise vary the rights and interests of benefi-ciaries, including, but not lim-ited to, the right to be informed of the beneficiary’s interest for a period of time, the grounds for removal of a fiduciary, … and a fiduciary’s powers, du-ties, standard of care, rights of indemnification and liability to persons whose interests arise
representative. Yes
“uniform”
which would otherwise make mandatory: (i) “the duty under
an irrevocable trust who have
existence of the trust, of the identity of the trustee, and of
reports; and (ii) the duty under Section 813(a) to respond to the
i-ciary of an irrevocable trust for trustee’s reports and other in-formation reasonably related to the administration of a trust.”157 “uni-form” 3 extensively to con-
Yes159 “ ” (as de-
fined in the statute) beneficiar-ies who are normally entitled to
the following statutory lan-guage: “Except as otherwise provided by the terms of an irrevocable trust or otherwise directed by the settlor, distribu-tion advisor, or trust protector, the trustee shall… [provide the
”
Yes “uniform”
which would otherwise make mandatory: (i) “the duty under
an irrevocable trust who have
existence of the trust, of the identity of the trustee, and of
reports; and (ii) the duty under Section 813(a) to respond to the
i-ciary of an irrevocable trust for trustee’s reports and other in-formation reasonably related to the administration of a trust.”160
PROVISIONS DELAWARE FLORIDA6 NEW HAMPSHIRE SOUTH DAKOTA TENNESSEE Ability to Curtail Reports to All or Certain Beneficiaries (Continued)
rule that statutes in derogation of the common law are to be strictly construed shall have no
the policy of this section to give maximum effect to the principle of freedom of disposition and to the enforceability of governing instruments.”
form it to NH’s protector and
also provides more details than “uniform”
lifies as the provision of e-p-iar-
ies. i-ciaries who must receive notic-
158
duty to inform established by “uniform” applies to those beneficiaries “who are current mandatory or permissible distributees of trust income or principal, or both,” instead of all “ i-ciaries.”161 Similarly, the duty to respond to a beneficiary’s
owed to qualified beneficiaries, who must reimburse the trustee for any reasonable expenses incurred in responding to such
duties set forth above, including the duty to inform certain bene-ficiaries of the trustee’s ac-ceptance of the trust and pro-vide those beneficiaries with either an abstract of, or a copy of, the trust can be eliminated by instructions of the settlor either in original instrument or in a later writing delivered to trustee163
All Assets In Irrevocable Special Needs Trusts Exempt From Creditors Without the Necessity of Following the Requirements of DAPT Statute
Unsure Yes – Yes – Yes – Extremely broad defini-tion of what constitutes a “Spe-
.”
Ability to Adopt Tax Benefits of Community Property Ownership In a Non-Community Property State Simply by Placing Property In a Trust
No No No Yes –
1 Significant portions of these materials were originally presented as Tennessee – The Best Place for Your Trust: A Comparison of “Attractive” States’ Trust Laws
with pupdated Janua resentation. Multi-Participant Trusts Need a Coordinator
(a member of partnership that includes a professional corporation), whose earlier work inspired this presentation. 3 Challenges & Trends In Serving Ultra-High Net Worth Families 4 Supra at endnote 3.
13 380. 14 15 -5- -5- -5-9 and, according to a telephone conversation between the author and legal counsel at the South Dakota Division of Banking, thauthorized to do tru -5-4, does not apply 16 -50-107, 45- -1010 & 45- - 17 18 19 -B:9-901.
-15-110(18). 33 hese materials. 34 e. 35 36 N.H. -B:8- 37 Supra at endnote . 38 - -9.1. 39 Supra at endnote 31Error! Bookmark not defined.. 40 -15- 41 Supra at endnote 34.
43-5-6. 53 43-5-7. 54 “a trust for a declared purpose that is not impossible of attainment is valid notwithstanding that the trust might not be deemed to be for charitable purposes”4 (and rela-
“the trustor’s death and covered by the terms of the trust.”). 55 N.H. -B:4-409, which provides “ itely ascertainable beneficiary or for a noncharitable but otherwise valid purpose.” (and relative to the lives of pets, N.H. -B:4-408, which provides that, “animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.”). 56 -1- - 55-1- -1- “ 55-1- -1-or for lawful noncharitable purposes to be selected by the trustee.” (relative to the lives of pets, the trust terminates when no living animal is covered by the trust). 57 -15-409,which provides “ ritable but otherwise valid purpose to be selected
” -15-408, which provides that, “ i-mal alive the care of more than one (1) animal alive during the settlor’s lifetime, upon the death of the last surviving animal.). 58 59 N.H. -B:4-418. 60 - -15 & 55- - 61 -15-
63 Garretson v. Garretson 64 Parsons v. Mumford Gibson v. Speegle, 65 N.H. 564-B:5- 66 N.H. 564-B:5-503(d). 67 N.H. 564-B:5-504. 68 -1-41. 69 -1- 70 -1-43(1) and 55-1- 71 -15-501 –35-15-503.
