PORTFOLIO

Uniform Trust Code (Portfolio 864)

Tax Management Portfolio, Uniform Trust Code, No. 864-2nd, describes the Uniform Trust Code (UTC) as promulgated by the Uniform Law Commission (formerly known as the National Conference of Commissioners on Uniform State Laws (NCCUSL)). 

Price: $400 Print

GET MORE WITH THE FULL PORTFOLIO LIBRARY

This Portfolio is part of the Estates, Gifts & Trusts Portfolio Library, a comprehensive resource including nearly 100 estate tax Portfolios, practice tools, primary sources and timely news.

FREE TRIAL

DESCRIPTION

Tax Management Portfolio, Uniform Trust Code, No. 864-2nd, describes the Uniform Trust Code (UTC) as promulgated by the Uniform Law Commission (formerly known as the National Conference of Commissioners on Uniform State Laws (NCCUSL)). As of April 2014, 28 states and the District of Columbia have adopted the UTC, and many of the remaining states have a bill pending or are studying it for future introduction.
The UTC is the first major attempt to collect, unify and codify the law of trusts. It borrows from the comprehensive trust statutes of Georgia, Indiana, Texas and Washington, and was patterned initially after the trust laws of California. The UTC is comprised largely of a series of default rules that apply only when the trust document is silent. It nevertheless has a number of innovative provisions, including certain mandatory rules that may not be overridden by the settlor, new rules providing for virtual representation of unborn and unascertained beneficiaries, the concept of qualified beneficiaries, new and more flexible rules for trust modification and termination, and a section of special rules for revocable trusts.
This Portfolio discusses and analyzes the UTC and the significant differences among the UTC, the common law of trusts and the modifications created by the enacting jurisdictions. This Portfolio discusses only the statutes of the jurisdictions that had adopted the UTC by November 2013. Subsequent updates may provide later adoptions.
Quotations in the Portfolio from the UTC and its official Notes and Comments are with the permission of the National Conference of Commissioners on Uniform State Laws. ©2010 by the National Conference of Commissioners on Uniform State Laws. Reproduced with its permission. All rights reserved.
This Portfolio may be cited as Cohen, 864-2nd T.M., Uniform Trust Code. 


Buy Uniform Trust Code (Portfolio 864) now


AUTHORS

I. MARK COHEN, ESQ.
I. Mark Cohen, B.S., California State University, Long Beach (1980); J.D., University of Arizona, College of Law (1984); LL.M. (in Taxation), College of William and Mary, Marshall-Wythe School of Law (1989); Judge Advocate, United States Navy, 1984–1988; Tax Manager, Goodman & Company, CPAs, 1988–1989; Associate Attorney, Adams, Porter & Radigan, 1989–1991; Founder and Principal of Cohen & Burnett, P.C., 1991–present; Past President, Northern Virginia Estate Planning Council; Member, Legislative Committee, Trusts and Estates Section, Virginia State Bar; Member, American Bar Association; Member, Virginia State Bar; Member, Arizona State Bar.
The author gratefully acknowledges the assistance of Morgan Yuan, Esq., for his overall assistance with the preparation of the second edition of this Portfolio.

TABLE OF CONTENTS

Detailed Analysis

I. General Overview

A. Development of the UTC

B. General Objectives

II. General Provisions and Definitions - Article 1

A. Introduction

B. Scope of the UTC - § 102

1. Trust Defined

a. Fiduciary Relationship

b. Fiduciary Relationships That Are Not Trusts

(1) Successive Legal Estates

(2) Decedent's Estates and Guardianships

(3) Receiverships and Bankruptcy Trusteeships

(4) Durable Powers of Attorney and Other Agencies

(5) Bailments and Leases

(6) Corporations, Partnerships and Other Business Associations

(7) Conditions and Equitable Charges

(8) “Power” Distinguished from Trusts

(9) Other Relationships

c. Express Trust Defined

(1) Constructive Trust Defined

(2) Resulting Trust Defined

2. Enacting Jurisdictions Differences - § 102

C. Definitions - § 103

1. Action - § 103(1)

2. Ascertainable Standard - § 103(2)

3. Beneficiary - § 103(3)

a. Charities

b. Holder of a Power of Appointment Is a Beneficiary

(1) Caveat - Trustee Holding Power of Appointment in Fiduciary Capacity

(2) Caveat - Power of Withdrawal

c. Enacting Jurisdictions Differences - § 103(3)

4. Charitable Trust - § 103(4)

5. Conservator - § 103(5)

6. Environmental Law - § 103(6)

7. Guardian - 103(7)

8. Interests of Beneficiaries - § 103(8)

9. Jurisdiction - § 103(9)

10. Person - § 103(10)

11. Power of Withdrawal - § 103(11)

12. Property - § 103(12)

13. Qualified Beneficiary - § 103(13)

14. Revocable - § 103(14)

a. Power of Withdrawal vs. Power of Revocation

b. Enacting Jurisdictions Differences

15. Settlor - § 103(15)

16. Spendthrift Provisions - § 103(16)

17. State - § 103(17)

18. Terms of a Trust - § 103(18)

19. Trust Instrument - § 103(19)

20. Trustee - § 103(20)

D. Additional Definitions Supplied by the Adopting States

1. Affiliate

2. Community Property

3. Conservator Ad Litem

4. Directed Trust

5. Distributee

6. Excluded Fiduciary

7. Fiduciary

8. Financial Institution

9. Financially Incapable

10. Guardian of the Estate

11. Guardian of the Person

12. Incapacity, Incompetency or Incompetent Person

13. Interested Persons

14. Internal Revenue Code

15. Permissible Distributee

16. Presumptive Remainder Beneficiary

17. Principal Place of Administration

18. Professional Fiduciary

19. Record

20. Regulated Financial-Service Institution

21. Serious Breach of Trust

22. Sign

23. Special Needs Trust

24. Trust Advisor

25. Trust Protector

26. Wholly Discretionary Trust

E. Knowledge - § 104

1. Introduction and Scope

2. Common Law

3. UTC Provisions

F. Default and Mandatory Rules - § 105

1. Introduction and Scope

2. Mandatory Rules Relating to Trust Creation - § 105(b)(1), (3)

3. Mandatory Rules Relating to Trustees

a. Fundamental Trustee Duties - § 105(b)(2)

b. Enacting Jurisdictions Differences - § 105(b)(2)

c. Trustee's Duty to Inform Beneficiaries - § 105(b)(8), (9)

d. Enacting Jurisdictions Differences - § 105(b)(8), (9)

4. Court's Power to Deal with Trusts Not Waivable by Settlor - § 105(b)(4), (6), (7), (12), (13), and (14)

5. Rights of Third Parties - § 105(b)(5), (11)

G. Common Law of Trusts, Principles of Equity - § 106

H. Governing Law - § 107

I. Principal Place of Administration - § 108

J. Methods and Waiver of Notice - § 109

K. Others Treated as Qualified Beneficiaries - § 110

1. Beneficiaries Who Request Notice – Requirements and Effect - § 110(a)

2. Qualified Beneficiaries as They Relate to Charitable Trusts, Trusts for Animals and Noncharitable Purposes - § 110(b)

3. Trusts for Animals and Noncharitable Purpose Trusts - § 110(c)

4. Enacting Jurisdictions Differences - § 110

L. Nonjudicial Settlement Agreements - § 111

M. Rules of Construction - § 112

III. Judicial Proceedings - Article 2

A. General Comment

B. Role of Court in Administration of Trust - § 201

C. Jurisdiction over Trustee and Beneficiary - § 202

D. Subject-Matter Jurisdiction - § 203

E. Venue - § 204

IV. Representation - Article 3

A. General Comment

1. Three General Themes

a. Court Involvement Not Required

b. Conflict of Interest

c. Adequacy of Representation

2. Standard to be Used by the Representative

B. Representation: Basic Effect - § 301

C. Representation by Holder of General Testamentary Power of Appointment - § 302

1. Testamentary vs. Non-Testamentary Powers of Appointment

2. Enacting Jurisdiction Differences - § 302

D. Representation by Fiduciaries and Parents - § 303

1. Fiduciaries

2. Representation and the Settlor - Two Exceptions

a. Representation of the Settlor

b. Representation by the Settlor

3. Parents - § 303(6)

4. Enacting Jurisdiction Differences - § 303

E. Representation by Persons Having Substantially Identical Interests - § 304

F. Appointment of Representative - § 305

1. Enacting Jurisdiction Differences - § 305

2. Highlights to Pennsylvania's Approach to Representation

V. Creation, Validity, Modification, and Termination of Trusts - Article 4

A. General Comment

B. Methods for Creating a Trust - § 401

C. Requirements for Creation - § 402

1. General Comment

a. Capacity

b. Intent

c. Definite Beneficiary

d. Trustee Must Have Duties

e. Purpose

f. Writing

2. Capacity to Create a Trust

a. Degrees of Incapacity

b. Void vs. Voidable

3. Manifestation of Intent by the Settlor to Create a Trust

4. Definite Beneficiary

a. Trustee's Power to Select a Beneficiary from an Indefinite Class

b. Rule Against Perpetuities

5. Trustee's Duties

6. Merger

D. Trusts Created in Other Jurisdictions - § 403

E. Trust Purposes - § 404

1. General Comment

2. Illegal Conduct

3. Induce Illegal Conduct

4. Induce Immoral Behavior

5. Inducing Conduct That Is Not Illegal or Immoral but Still Against Public Policy

6. Not Frivolous, Capricious, or Wasteful

7. Possible to Achieve

8. Trust and Its Terms Must Be for the Benefit of the Beneficiaries

F. Charitable Purposes; Enforcement - § 405

1. General Comment

a. History of Charitable Purposes

b. Special Status of Charitable Trusts

2. Charitable Purpose

a. Enforcement

b. Settlor's Right to Enforce a Charitable Trust

c. Enacting Jurisdiction Differences - § 405

G. Creation of Trust Induced by Fraud, Duress, or Undue Influence - § 406

1. General Comment

2. Undue Influence

a. Confidential Relationship

b. Irrevocable Trusts

c. Revocable Trusts

3. Duress

4. Fraud

H. Evidence of an Oral Trust - § 407

1. General Comment

2. Statute of Frauds

I. Trusts for Care of Animals - § 408

1. General Comment

2. Trusts for Animals

J. Noncharitable Trust Without Ascertainable Beneficiary - § 409

K. Modification or Termination of Trust; Proceedings for Approval or Disapproval - § 410

1. General Comment

2. UTC § 410

L. Modification or Termination of Noncharitable Irrevocable Trust by Consent - § 411

1. General Comment

2. Material Purpose

3. All Beneficiaries – Virtual Representation

4. Representation of Beneficiary by Settlor - Estate Tax Consequences Under IRC § 2038

5. Representation of Settlor by Agent - Conservator or Guardian

6. Not All the Beneficiaries Consent

a. Where Modification or Termination Would Violate a Material Purpose

b. Settlor Acting Through Power of Attorney

c. Spendthrift Protection Is a Material Trust Purpose

d. Other Differences

M. Modification or Termination Because of Unanticipated Circumstances or Inability to Administer Trust Effectively - § 412

N. Cy Pres - § 413

1. General Comment

2. UTC Cy Pres Doctrine

3. Gift-Over to Noncharitable Beneficiary upon Failure of Charitable Purpose

O. Modification or Termination of Uneconomic Trust - § 414

1. General Comment

2. Termination by Trustee

3. Termination by Court

4. Easement for Conservation or Preservation

P. Reformation to Correct Mistakes - § 415

1. General Comment

2. Limits

3. Effect on Statutory Rules of Construction

4. Defenses to Modification

5. Contractual Obligations

Q. Modification to Achieve Settlor's Tax Objectives - § 416

1. General Comment

2. Will State Court Decree Be Binding on the United States?

3. Modification of a Completed Transaction

4. Internal Revenue Code Sanctioned Reformations

a. Charitable Split-Interest Trusts

b. Qualified Domestic Trusts

c. Qualified Personal Residence Trusts

d. Enacting Jurisdiction Differences - § 416

R. Combination and Division of Trusts - § 417

1. General Comment

2. Section 417 Requirements

S. The Doctrine of Worthier Title and Rule in Shelley's Case

VI. Creditor's Claims; Spendthrift and Discretionary Trusts - Article 5

A. General Comment

B. The Common Law

1. Nature of the Beneficiary's Interest

2. Creditor's Rights Under the Common Law

3. Support Trusts

4. Discretionary Trusts

5. Supplemental and Special Needs Trusts

a. Brief Review of Public Assistance Programs

b. Do States Have Better Access to the Medicaid Recovery Estate Under the UTC?

c. Will the UTC Make It Easier for States to Deny Benefits Under Medicaid?

6. Spendthrift and Forfeiture Provisions

7. Self-Settled Trusts

8. General Power of Appointment

C. Rights of Beneficiary's Creditor or Assignee - § 501

1. 2005 Amendment

2. Enacting Jurisdiction Differences - § 501

D. Spendthrift Provisions - § 502

E. Exceptions to Spendthrift Provision - § 503

1. General Comment

2. Child, Spouse, and Former Spouse with Court Order of Support Against the Beneficiary

3. Judgment Creditor Providing Services to Protect Beneficiary's Interest

4. Government Claims

5. Remedies Available to Exception Creditors

6. Notable Common Law Exception Creditors Not Present in UTC

a. Suppliers of Necessaries

b. Tort Creditors

7. Enacting Jurisdiction Differences - § 503

F. Discretionary Trusts; Effect of Standard - § 504

1. General Comment

2. Support and Discretionary Trusts

a. Support Trusts - Standard for Distribution

b. Discretionary Trusts

c. Creditor May Not Compel Distribution

d. Support Trusts Treated as Discretionary Trusts for Purposes of Creditor's Rights

3. Child, Spouse, or Former Spouse with a Support Order

4. Beneficiary's Right to Proceed Against Trustee Who Has Abused Discretion or Failed to Comply with Standard

5. Rights of Creditors of a Trustee Who Is a Beneficiary

G. Creditor's Claim Against Settlor - § 505

1. General Comment

2. Revocable Trusts

a. During the Lifetime of the Settlor

b. Upon the Death of the Settlor

(1) Exception for Probate Estate

(2) Exception for Settlor's Right to Direct

c. Procedure and Priority of Claims

3. Creditor's Rights Against the Settlor of an Irrevocable Trust

4. Creditor's Rights to Property Subject to a Power of Withdrawal

a. General Rule - Power of Withdrawal Makes Holder a Settlor

b. Lapse, Release or Waiver of Power

c. Enacting Jurisdiction Differences - § 505

H. Overdue Distribution - § 506

1. General Comment

2. Basic Rule - Creditors May Reach Overdue Distributions

a. Mandatory Distribution Defined

b. When Is a Distribution “Overdue”?

c. Enacting Jurisdiction Differences - § 506

I. Personal Obligations of Trustee - § 507

VII. Revocable Trusts - Article 6

A. General Comment

B. Capacity of Settlor of Revocable Trust - § 601

1. General Comment

2. Capacity Required of Settlor of Revocable Trust Is Same as a Will

3. No Attestation Requirements as in a Will

C. Revocation or Amendment of Revocable Trust - § 602

1. General Comment

2. Trusts Are Presumed to Be Revocable

3. Revocable Trusts with More Than One Settlor

a. Joint Trusts - Non-Community Property

b. Joint Trusts Containing Community Property

c. Trustee's Duty to Notify Settlors of Partial Revocation or Amendment

4. Procedures for Revocation or Amendment

a. Revocation or Amendment by Will

b. Revocation or Amendment by Any Other Method Manifesting Clear and Convincing Evidence of Settlor's Intent

5. Trustee's Duties and Liabilities upon Revocation

6. Exercise of Settlor's Powers by Agent Under a Power of Attorney, a Conservator, and a Guardian

D. Settlor's Powers; Powers of Withdrawal - § 603

1. General Comment

2. Beneficiary's Rights to Revocable Trusts

3. Holder of Power of Withdrawal Is Treated as Settlor

E. Limitation on Action Contesting Validity of Revocable Trust; Distribution of Trust Property - § 604

1. General Comment

2. Limitations on Actions to Contest a Revocable Trust upon Death of Settlor

3. Definitions

a. Which Revocable Trusts?

b. Which Actions Are Limited? (“Contest” Defined)

4. Trustee's Liability

VIII. Office of Trustee - Article 7

A. Accepting or Declining Trusteeship - § 701

1. General Comment

2. Acceptance of Trusteeship

3. Rejection of Trusteeship, Inaction

4. Acting to Inspect or Preserve Property Without Accepting Trusteeship

B. Trustee's Bond - § 702

1. General Comment

2. UTC Bond Requirements

C. Co-Trustees - § 703

1. General Comment

2. Common Law Provisions Concerning Co-Trustees

a. Act by Majority or with Unanimity

b. Delegation

c. Duty to Act

d. Refusal to Act; Liability of Trustee

e. Survival of Powers; Title

3. UTC Provisions

a. Co-Trustees Act by the Majority

b. Vacancy in Co-Trusteeship

c. Co-Trustee's Duty to Act; Delegation of Trustee's Duties

d. Emergencies

e. Delegation of Trustee's Duties

f. Liability of Trustee for Actions of Another Trustee

g. Enacting Jurisdiction Differences - § 703

D. Vacancy in Trusteeship; Appointment of Successor - § 704

1. General Comment

2. When Does a Vacancy in Trusteeship Occur?

a. Failure to Serve as Trustee

b. Failure During Service as Trustee

3. When Must a Vacancy in Trusteeship Be Filled?

4. Rules for Filling a Vacancy in a Noncharitable Trust

5. Rules for Filling a Vacancy in a Charitable Trust

6. Court Authority to Appoint Trustee Regardless of Vacancy

E. Resignation of Trustee - § 705

1. General Comment

2. Procedure for Trustee to Resign

a. Notice to Beneficiaries

b. Approval of the Court

3. Liability of Resigning Trustee

F. Removal of Trustee - § 706

1. General Comment

2. Who May Petition the Court to Remove a Trustee

a. Settlor's Standing to Petition Court for Removal of Trustee

b. All the Qualified Beneficiaries - Special Application of § 411

c. Authority of Court to Remove Trustee

3. Grounds for Removal of Trustee

a. Serious Breach of Trust

b. Lack of Cooperation Among Trustees That Seriously Impairs Administration of Trust

c. Inability to Administer the Trust in the Interest of the Beneficiaries

d. Substantial Change in Circumstances

e. Friction Between Trustee and Beneficiaries

f. Trustee Named by the Settlor

4. Protection of the Trust Property and Beneficiary's Interest Pending Final Decision on Trustee's Removal

G. Delivery of Property by Former Trustee - § 707

1. General Comment

2. Sole Trustee's Continuing Power and Duty Upon Resignation - Court Not Involved

3. Where Court Is Involved in Trustee's Resignation or Removal

4. Where a Co-Trustee Remains in Office

5. Trustee Dies or Becomes Incapacitated in Office

H. Compensation of Trustee - § 708

1. General Comment

2. Where Terms of the Trust Are Silent Regarding Compensation

a. What Is “Reasonable Compensation Under the Circumstances?”

b. Delegation of Duties to Agents

c. Court Approval Not Required

3. Where the Terms of the Trust Specify the Trustee's Compensation

4. Compensation Set by Agreement with the Beneficiaries

5. Special Cases

a. Co-Trustees

b. Financial Institutions with Published Fee Schedules; Termination Fees

c. Dual Fees - Special Services

d. Waiver of Fees by Trustee

e. Accounting for Trustee's Fees

6. Enacting Jurisdiction Differences - § 708

I. Reimbursement of Expenses - § 709

1. General Comment

2. Reimbursement for Expenses That Were Properly Incurred

3. Reimbursement for Expenses That Were Not Properly Incurred; Unjust Enrichment

4. Expenses for Defending Trust or Trustee

5. Lien for Advances to Protect Trust Property

6. Enacting Jurisdiction Differences - § 709

7. Enacting Jurisdiction Additions to Article 7

IX. Duties and Powers of Trustee - Article 8

A. General Comment

B. Duty to Administer Trust - § 801

C. Duty of Loyalty - § 802

1. General Comment

2. General Duty of Loyalty

3. Transactions for the Trustee's Personal Account Are Voidable

a. Bona Fide Purchaser for Value and Without Knowledge

b. Transaction Authorized by the Trust Agreement

c. Transaction Approved by the Court

d. Statute of Limitations

e. Beneficiary Consents

f. Transaction Predates Trustee's Appointment to Trust

4. Transactions for the Trustee's Family, Friends, and Business Associates Are Rebuttably Presumed Voidable

5. Any Other Conflict of Interest

6. Transactions Between Trustee and Beneficiary Outside the Trust

7. Trust Opportunities

8. Trustee Running a Business Inside the Trust

9. Exceptions to the Duty of Loyalty

a. Investment Company Fees

b. Agreement with Beneficiaries for Appointment and Compensation of Trustee

c. Transactions Between Trusts Where Trustee Is Fiduciary or Beneficiary for Both

d. Deposits in Corporate Trustee's Own Institution

e. Advances by Trustee for the Protection of the Trust

10. Appointment of Special Fiduciary to Avoid Conflict of Interest

11. Enacting Jurisdiction Differences - § 802

D. Impartiality - § 803

1. General Comment

2. Enacting Jurisdiction Differences - § 803

E. Prudent Administration - § 804

1. General Comment

2. Prudent Administration Rule

3. Enacting Jurisdiction Differences - § 804

F. Costs of Administration - § 805

1. General Comment

2. Enacting Jurisdiction Differences - § 805

G. Trustee's Skills - § 806

1. General Comment

2. Enacting Jurisdiction Differences - § 806

H. Delegation by Trustee - § 807

1. General Comment

2. Delegation by Trustee

3. Agent's Duties

4. Enacting Jurisdiction Differences - § 807

I. Powers to Direct - § 808

1. General Comment

2. Revocable Trusts

3. Trustee's Duties and Liabilities

4. Extent of the Power to Direct

5. Power Holder's Duties and Liabilities

6. Enacting Jurisdiction Differences - § 808

J. Control and Protection of Trust Property - § 809

1. General Comment

2. Section 809

3. Enacting Jurisdiction Differences - § 809

K. Recordkeeping and Identification of Trust Property - § 810

1. General Comment

2. Adequate Records

3. Earmark and Keep Trust Property Separate from Trustee's Own Property

4. Combined Investment of Two or More Trusts

5. Enacting Jurisdiction Differences - § 810

L. Enforcement and Defense of Claims - § 811

M. Collecting Trust Property - § 812

N. Duty to Inform and Report - § 813

1. General Comment

2. Trustee's General Duty to Inform

a. Duty to Inform Qualified Beneficiaries

b. Duty to Respond to Any Beneficiary Who Requests Information

(1) Complete Copy of Trust

(2) Attorney-Client Privilege

3. Trustee's Duty to Report

a. Upon Accepting Trusteeship

b. Upon Creation of an Irrevocable Trust or upon a Trust Becoming Irrevocable

c. Upon Change of Method or Rate of Trustee's Compensation

4. Trustee's Annual Report

5. Beneficiary's Waiver of Trustee's Report

6. Enacting Jurisdiction Differences - § 813

O. Discretionary Powers; Tax Savings - § 814

1. General Comment

2. Extended Discretion Language Is Not Literally Construed

3. Tax Curative Provisions and Exceptions

a. QTIP Trusts

b. Revocable Trusts

c. Section 2503(c) Minor's Trusts

4. Enacting Jurisdiction Differences - § 814

P. General Powers of Trustee - § 815

1. General Comment

2. Trustee Is Granted the Broadest Possible Power

3. Enacting Jurisdiction Differences - § 815

Q. Specific Powers of Trustee - § 816

1. General Comment

2. Enacting Jurisdiction Differences - § 816

R. Distribution upon Termination - § 817

1. General Comment

2. Proposal for Distribution

3. Reserve for Debts, Expenses, and Taxes

4. Beneficiary's Release of Trustee

5. Enacting Jurisdiction Differences - § 817

X. Prudent Investor Act - Article 9

XI. Liability of Trustees and Rights of Persons Dealing with Trustees - Article 10

A. General Comment

1. Remedies for Breach

2. Trustee's Potential Defenses

3. Third Parties

B. Remedies for Breach of Trust - § 1001

1. General Comment

a. Who Has Standing to Bring an Action?

Content

Content

b. Legal and Equitable Remedies

2. Breach of Trust Defined

3. Remedies for Breach of Trust

a. Specific Enforcement of the Trust

b. Injunction

c. Redress

d. Account

e. Appoint Receiver

f. Suspend or Remove the Trustee

g. Reduce or Deny Compensation

h. Void an Act of the Trustee; Impose a Lien or a Constructive Trust; Trace and Recover Trust Property

4. Enacting Jurisdiction Differences - § 1001

C. Damages for Breach of Trust - § 1002

1. General Comment

2. Measure of Damages

3. Liability of Co-Trustees

4. Enacting Jurisdiction Differences - § 1002

D. Damages in Absence of Breach - § 1003

1. Profits in Absence of Breach

2. Losses in Absence of Breach

3. Enacting Jurisdiction Differences - § 1003

E. Attorney's Fees and Costs - § 1004

1. General Comment

2. Attorney's Fees and Costs Under the UTC

3. Enacting Jurisdiction Differences - § 1004

F. Limitation of Action Against Trustee - § 1005

1. General Comment

2. One Year from Sending Adequate Trustee's Report

3. Five-Year Statute of Limitations

4. Enacting Jurisdiction Differences - § 1005

G. Reliance on Trust Instrument - § 1006

1. General Comment

2. Enacting Jurisdiction Differences - § 1006

H. Event Affecting Administration or Distribution - § 1007

1. General Comment

2. Events Affecting Administration or Distribution

3. Enacting Jurisdiction Differences - § 1007

I. Exculpation of Trustee - § 1008

1. General Comment

2. Minimum Standard of Trustee's Conduct

3. Exculpation Clause Inserted Because of Abuse of Confidential Relationship

4. Enacting Jurisdiction Differences - § 1008

J. Beneficiary's Consent, Release, or Ratification - § 1009

1. General Comment

2. Enacting Jurisdiction Differences - § 1009

K. Limitation on Personal Liability of Trustee - § 1010

1. General Comment

2. Trustee's Liability to Third Parties in a Contract

3. Trustee's Liability to Third Parties in Tort

a. Tort Liability

b. Environmental Liability

(1) Brief Overview of Environmental Liability Statutes as They Relate to Fiduciaries

(2) Tort Liability

(3) UTC § 1010 and Environmental Liability

4. Lawsuits in Representative Capacity

5. Enacting Jurisdiction Differences - § 1010

L. Interest as General Partner - § 1011

1. General Comment

2. Trustee's Liability in Contract as a General Partner

3. Trustee's Liability in Tort and Other Obligations as a General Partner

4. Exceptions

a. Interest Held by Trustee Personally or by Trustee's Family Members

b. Revocable Trusts

5. Enacting Jurisdiction Differences - § 1011

M. Protection of Person Dealing with Trustee - § 1012

1. General Comment

2. Protection from Trustee's Improper Exercise of Power

3. No Duty to Inquire

4. No Duty to Ensure Proper Application of Property Delivered to Trustee

5. Relationship to Commercial Transaction Statutes

6. Enacting Jurisdiction Differences - § 1012

N. Certification of Trust - § 1013

1. General Comment

2. Certification of Trust, Contents

3. Protection of a Third Party Who Relies upon Certification of Trust

4. Liability of a Third Party Who Refuses to Accept Certification of Trust

5. Enacting Jurisdiction Differences - § 1013

XII. Miscellaneous Provisions - Article 11

A. Uniformity of Application and Construction - § 1101

1. General Comment

2. Enacting Jurisdiction Differences - § 1101

B. Electronic Records and Signatures - § 1102

1. General Comment

2. Enacting Jurisdiction Differences - § 1102

C. Severability Clause - § 1103

1. General Comment

2. Enacting Jurisdiction Differences - § 1103

D. Effective Date - § 1104

E. Repeals - § 1105

F. Applicability to Existing Relationships - § 1106

1. General Comment

2. General Rule

3. Exceptions

a. Prior Acts

b. Existing Rights Under Statute of Limitations

4. Enacting Jurisdiction Differences - § 1106


WORKING PAPERS

Working Papers

Table of Worksheets

Worksheet 1 Practical Drafting Under the Uniform Trust Code

Worksheet 2 State Variations - UTC § 105(b)(8), (9)

Worksheet 3 State Variations - UTC § 411

Worksheet 4 Trustee's Notice to Beneficiary upon Accepting Trusteeship Under UTC § 813(b)(2)

Worksheet 5 Trustee's Certificate Under UTC § 813(b)(2)

Worksheet 6 Trustee's Notice to Beneficiary upon Creation of Irrevocable Trust, or upon Learning That a Revocable Trust Has Become Irrevocable, Under UTC § 813(b)(3)

Worksheet 7 List of Specific Powers of Trustee, with Comments - UTC § 816

Worksheet 8 Trustee's Proposal for Distribution upon Termination or Partial Termination of Trust Under UTC § 817

Bibliography

OFFICIAL

Statutes:

Federal:

Regulations:

Cases:

State:

Tax Management Portfolios:

UNOFFICIAL

Books, Treatises and Commentaries:

Periodicals:

2001

2002

2004

2005

2006