Delaware General Assembly

Signed 8/30/17

The General Assembly has ended, the current status is the final status.

5/10/17

B. Short

Reps. Lynn, M. Smith
Sen. Bushweller, Hansen, Townsend

Reps. Q. Johnson, Keeley, Paradee, Ramone
Sen. Delcollo, Sokola

AN ACT TO AMEND TITLES 12,25 AND 30 OF THE DELAWARE CODE RELATING TO DECEDENTS’ ESTATES AND FIDUCIARY RELATIONS, PROPERTY AND STATE TAXES.

Section 1 of the Act (i) clarifies that the defined term “agents”, as used in chapter 33 of title 12, consistent with common usage of the term, includes all agents defined as such by the general law of agency; (ii) modifies section 3312 to provide that the rules of that section, permitting certain investments and transactions with affiliates, apply in cases where the investment or counterparty to the transaction is affiliated with an agent having discretionary investment authority over a fund either by reason of a delegation to the agent by a fiduciary or by reason of a direct grant of such discretion to the agent; (iii) adds a new section 3313A, patterned upon section 3313, regarding the duties and liability of a trustee in cases where the trust instrument grants another co-trustee exclusive authority to take specified actions on behalf of the trust; (iv) grants trustees the general power to indemnify lenders as customary commercial loan documents sometimes require such indemnities; (v) clarifies the circumstances in which a trustee may merge trusts pursuant to section 3325(29); (vi) corrects typographical errors in sections 3332 and 3333; (vii) clarifies the circumstances in which certain trust beneficiaries may appoint a successor trustee pursuant to section 3336; (viii) makes section 3338 regarding nonjudicial settlement agreements available to charitable trusts and noncharitable purpose trusts subject to certain limitations described therein; (ix) revises section 3341 to address how a trust merger affects a power of appointment exercisable over property of a trust merged with and into another trust; and (x) revises section 3342 to make certain stylistic changes and address the power of an agent or guardian to consent to a trust modification on behalf of a trustor. Section 2 of the Act (i) revises section 3528 to incorporate a provision, appearing in the recently promulgated Uniform Trust Decanting Act, permitting trustees to effect a trust decanting without creating a new separate trust; (ii) modifies the wording but not the substantive terms of section 3541; (iii) clarifies section 3545 regarding the execution requirements for certain trusts; (iv) corrects a typographical error in section 3546; (v) clarifies that a sale or exchange for full and adequate consideration is not a “disposition” for purposes of Delaware’s asset protection trust legislation meaning that (1) a person engaging in such a transaction does not become a settlor of the trust by reason of the sale or exchange, and (2) such a transaction may not be avoided by a creditor; and (vi) adds a new limitations period for actions against a trustee following the trustee’s departure from office. Section 3 of the Act conforms the tax ordering rules of section 61-107, applicable to express unitrusts, with the tax ordering rules of section 61-106, applicable to unitrusts created by means of the conversion procedure described in that statute. Section 4 of the Act revises Delaware’s “tax trap” legislation (chapter 5 of title 25) to create a new method, in addition to the method already available under current law, by which the donee of a power of appointment over trust property may avoid the application of the general default rule of section 501(a) of title 25 providing that interests in property created by the exercise of such power of appointment are deemed to have been created at the time of the exercise of the power. Section 5 of the Act revises section 1636 of title 30 to create a new rule of application, treating the federal taxable income of an electing small business trust as having been set aside for distribution in future taxable years, for purposes of determining the amount of the trust’s section 1636 deduction for federal taxable income set aside for future distribution to nonresident beneficiaries. Section 6 of the Act provides that it shall apply to trusts whenever created.

81:149

15

8/30/17

N/A

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