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 Back | 144th General Assembly
Senate Bill # 247 |
| Primary Sponsor: | DeLuca | Additional Sponsor(s): Rep. Stone |
| CoSponsors: | Sens. Bunting Cook Sokola Bonini Still,Reps. Lavelle Carey Hocker Hudson D. Short Valihura Brady Longhurst Plant B. Short Viola |
| Introduced on : | 05/06/2008 | |
| Long Title: | AN ACT AMENDING TITLE 12 OF THE DELAWARE CODE RELATING TO TRUSTS AND ESTATES AND TITLE 25 OF THE DELAWARE CODE RELATING TO PROPERTY |
| Synopsis: | Section 1 of the bill provides that a person might be found to be a “slayer” within the meaning of § 2322 of Title 12 notwithstanding the absence of a conviction or plea of guilty or nolo contendere.
Section 2 of the bill incorporates certain provisions previously contained in § 3321 of Title 12.
Sections 3 and 10 of the bill make changes in §§ 3303(b) and 3541(c) of Title 12 that are necessitated by Sections 11 and 12 of the bill.
Section 4 of the bill provides that the provisions of § 3306 of Title 12 are subject to the provisions of § 3303.
Section 5 of the bill adds a new subsection (f) to § 3313 of Title 12 to specify that the section applies to “protectors” as well as “advisers” and to provide a nonexclusive list of the powers that a governing instrument may give a protector.
Section 6 of the bill adds a new § 3314 to Title 12 to prevent a fiduciary from exercising specified powers that would inadvertently subject the trustee to federal gift or estate tax.
Section 7 of the bill adds a new § 3315 to Title 12. Subsection (a) confirms that Delaware discretionary trusts are governed by Section 187 of the Restatement (Second) of Trusts and not by Sections 50 and 60 of the Restatement (Third) of Trusts. Subsection (b) would reinforce the provisions of § 3536(a) by emphasizing that a creditor of a beneficiary cannot compel the trustee of a discretionary interest to make a distribution that would directly or indirectly benefit the creditor. Subsection (b) would further emphasize that, contrary to the comments to Restatement (Second) of Trusts Section 155, the protection from creditors afforded to a beneficiary under § 3536(a) is extended by that provision and is not dependent upon the discretionary nature or extent of the beneficiary’s interest. It is intended that subsection (b), like § 3536(a), be liberally construed in favor of protecting the beneficiary’s interest.
Section 8 of the bill repeals § 3321 of Title 12.
Section 9 of the bill restates § 3536 of Title 12. The section has been amended several times in recent years, and the restated section is intended to provide a more coherent whole.
Section 11 of the bill revises § 3555 of Title 12 so that it now deals exclusively with trusts created for the care of animals living at trustors’ deaths.
Section 12 of the bill adds a new § 3556 to Title 12 to cover trusts for noncharitable purposes other than those covered by § 3555.
Section 13 of the bill makes a technical change in § 3570(11)b7 of Title 12.
Section 14 of the bill amends § 3570(11)b9 of Title 12 to permit the trustor of a trust under the Qualified Dispositions in Trust Act to be reimbursed for taxes payable on the income of the trust on a mandatory as well as a discretionary basis.
Section 15 of the bill, which adds new subsection (d) to § 3585 of Title 12, is intended to provide some ultimate repose for actions against a trustee. It incorporates into Delaware law the corresponding language from § 1005(c) of the Uniform Trust Code (“UTC”), which subsection has been substantially adopted by 18 States and the District of Columbia. Of these 19 jurisdictions, 10 have opted for a shorter limitations period (1-4 years), 7 have retained the five-year limitations period reflected in the UTC, and 2 have imposed a longer limitations period (6 and 10 years, respectively). The bill adopts the UTC’s five-year limitations period.
New subsection (d) applies to cases in which the trustee has failed to report to the beneficiaries or the report did not meet the disclosure requirements of subsection (a). It also applies to beneficiaries who did not receive notice of the report, whether personally or through representation. While the five-year limitations period will normally begin to run on termination of the trust, it can also begin earlier. If a trustee leaves office prior to the termination of the trust, the limitations period for actions against that particular trustee begins to run on the date the trustee leaves office. If a beneficiary receives a final distribution prior to the date the trust terminates, the limitations period for actions by that particular beneficiary begins to run on the date of final distribution. This amendment is not intended to affect any other limitations periods that may otherwise apply to a claim.
Section 16 of the bill amends § 503(a) of Title 25 to confirm that a Delaware noncharitable purpose trust may be perpetual.
Section 17 of the bill provides effective dates
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| Committee Reports: |
Senate Committee report 05/14/08 F=0 M=4 U=0----->
House Committee Report 06/10/08 F=0 M=7 U=0----> |
| Voting Reports: |
Senate vote: () Passed 5/15/08 3:12:07 PM------->
House vote: () Passed 6/17/08 5:35:06 PM-------> |
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Actions History:
| Jun 26, 2008 - Signed by Governor
Jun 26, 2008 - Signed by Governor
Jun 26, 2008 - Signed by Governor
Jun 17, 2008 - Passed by House of Representatives. Votes: Passed 40 YES 0 NO 0 NOT VOTING 1 ABSENT 0 VACANT
Jun 10, 2008 - Reported Out of Committee (ECONOMIC DEVELOPMENT/BANKING & INSURANCE) in House with 7 On Its Merits
May 29, 2008 - Introduced and Assigned to Economic Development/Banking & Insurance Committee in House
May 15, 2008 - Passed by Senate. Votes: 21 YES 0 NO 0 NOT VOTING 0 ABSENT
May 14, 2008 - Reported Out of Committee (BANKING) in Senate with 4 On Its Merits
May 06, 2008 - Assigned to Banking Committee in Senate
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