Arkansas 2025 Regular Session

Arkansas House Bill HB1749 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		Stricken language would be deleted from and underlined language would be added to present law.
2		-	Act 680 of the Regular Session
3	2		MAG009 03/11/2025 5:25:18 PM MAG009
4	3		State of Arkansas 1
5	4		95th General Assembly A Bill 2
6	5		Regular Session, 2025 HOUSE BILL 1749 3
7	6		4
8	7		By: Representative M. Brown 5
9	8		By: Senator Dees 6
10	9		7
11	10		For An Act To Be Entitled 8
12	11		AN ACT TO ADOPT THE UNIFORM TRUST DECANTING ACT; AND 9
13	12		FOR OTHER PURPOSES. 10
14	13		11
15	14		12
16	15		Subtitle 13
17	16		TO ADOPT THE UNIFORM TRUST DECANTING 14
18	17		ACT. 15
19	18		16
20	19		BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 17
21	20		18
22	21		SECTION 1. Arkansas Code Title 28 is amended to add an additional 19
23	22		chapter to read as follows: 20
24	23		21
25	24		CHAPTER 78 22
26	25		UNIFORM TRUST DECANTING ACT 23
27	26		24
28	27		28-78-101. Short title. 25
29	28		This chapter may be cited as the Uniform Trust Decanting Act. 26
30	29		27
31	30		28-78-102. Definitions. 28
32	31		In this chapter: 29
33	32		(1) “Appointive property” means the property or property 30
34	33		interest subject to a power of appointment; 31
35	34		(2) “Ascertainable standard” means a standard relating to an 32
36	35		individual’s health, education, support, or maintenance within the meaning of 33
37	36		26 U.S.C. Section 2041(b)(1)(A), as it existed on January 1, 2025, or 26 34
38	37		U.S.C. Section 2514(c)(1), as it existed on January, 1, 2025, and any 35
39	38		applicable regulations; 36 HB1749
40	39
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42	41		(3) “Authorized fiduciary” means: 1
43	42		(A) A trustee or other fiduciary, other than a settlor, 2
44	43		that has discretion to distribute or direct a trustee to distribute part or 3
45	44		all of the principal of the first trust to one or more current beneficiaries; 4
46	45		(B) A special fiduciary appointed under § 28 -78-109; or 5
47	46		(C) A special-needs fiduciary under § 28 -78-113; 6
48	47		(4) “Beneficiary” means a person that: 7
49	48		(A) Has a present or future, vested or contingent, 8
50	49		beneficial interest in a trust; 9
51	50		(B) Holds a power of appointment over trust property; or 10
52	51		(C) Is an identified charitable organization that will or 11
53	52		may receive distributions under the terms of the trust; 12
54	53		(5) “Charitable interest” means an interest in a trust which: 13
55	54		(A) Is held by an identified charitable organization and 14
56	55		makes the organization a qualified beneficiary; 15
57	56		(B) Benefits only charitable organizations and, if the 16
58	57		interest were held by an identified charitable organization, would make the 17
59	58		organization a qualified beneficiary; or 18
60	59		(C) Is held solely for charitable purposes and, if the 19
61	60		interest were held by an identified charitable organization, would make the 20
62	61		organization a qualified beneficiary; 21
63	62		(6) “Charitable organization” means: 22
64	63		(A) A person, other than an individual, organized and 23
65	64		operated exclusively for charitable purposes; or 24
66	65		(B) A government or governmental subdivision, agency, or 25
67	66		instrumentality, to the extent it holds funds exclusively for a charitable 26
68	67		purpose; 27
69	68		(7) “Charitable purpose” means the relief of poverty, the 28
70	69		advancement of education or religion, the promotion of health, a municipal or 29
71	70		other governmental purpose, or another purpose the achievement of which is 30
72	71		beneficial to the community; 31
73	72		(8) “Court” means the court in this state having jurisdiction in 32
74	73		matters relating to trusts; 33
75	74		(9)(A) “Current beneficiary” means a beneficiary that on the 34
76	75		date the beneficiary’s qualification is determined is a distributee or 35
77	76		permissible distributee of trust income or principal. 36 HB1749
78	77
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80	79		(B) "Current beneficiary" includes the holder of a 1
81	80		presently exercisable general power of appointment but does not include a 2
82	81		person that is a beneficiary only because the person holds any other power of 3
83	82		appointment; 4
84	83		(10) “Decanting power” or “the decanting power” means the power 5
85	84		of an authorized fiduciary under this chapter to distribute property of a 6
86	85		first trust to one or more second trusts or to modify the terms of the first 7
87	86		trust; 8
88	87		(11) “Expanded distributive discretion” means a discretionary 9
89	88		power of distribution that is not limited to an ascertainable standard or a 10
90	89		reasonably definite standard; 11
91	90		(12) “First trust” means a trust over which an authorized 12
92	91		fiduciary may exercise the decanting power; 13
93	92		(13) “First-trust instrument” means the trust instrument for a 14
94	93		first trust; 15
95	94		(14) “General power of appointment” means a power of appointment 16
96	95		exercisable in favor of a powerholder, the powerholder’s estate, a creditor 17
97	96		of the powerholder, or a creditor of the powerholder’s estate; 18
98	97		(15) “Jurisdiction”, with respect to a geographic area, includes 19
99	98		a state or country; 20
100	99		(16) “Person” means an individual, estate, business or nonprofit 21
101	100		entity, public corporation, government or governmental subdivision, agency, 22
102	101		or instrumentality, or other legal entity; 23
103	102		(17)(A) “Power of appointment” means a power that enables a 24
104	103		powerholder acting in a nonfiduciary capacity to designate a recipient of an 25
105	104		ownership interest in or another power of appointment over the appointive 26
106	105		property. 27
107	106		(B) "Power of appointment" does not include a power of 28
108	107		attorney; 29
109	108		(18) “Powerholder” means a person in which a donor creates a 30
110	109		power of appointment; 31
111	110		(19)(A) “Presently exercisable power of appointment” means a 32
112	111		power of appointment exercisable by the powerholder at the relevant time. 33
113	112		(B) "Presently exercisable power of appointment": 34
114	113		(1) Includes a power of appointment exercisable only 35
115	114		after the occurrence of a specified event, the satisfaction of an 36 HB1749
116	115
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118	117		ascertainable standard, or the passage of a specified time only after the: 1
119	118		(i) Occurrence of the specified event; 2
120	119		(ii) Satisfaction of the ascertainable 3
121	120		standard; or 4
122	121		(iii) Passage of the specified time; and 5
123	122		(2) Does not include a power exercisable only at the 6
124	123		powerholder’s death; 7
125	124		(20) “Qualified beneficiary” means a beneficiary that on the 8
126	125		date the beneficiary’s qualification is determined: 9
127	126		(A) Is a distributee or permissible distributee of trust 10
128	127		income or principal; 11
129	128		(B) Would be a distributee or permissible distributee of 12
130	129		trust income or principal if the interests of the distributees described in 13
131	130		subdivision (20)(A) of this section terminated on that date without causing 14
132	131		the trust to terminate; or 15
133	132		(C) Would be a distributee or permissible distributee of 16
134	133		trust income or principal if the trust terminated on that date; 17
135	134		(21) “Reasonably definite standard” means a clearly measurable 18
136	135		standard under which a holder of a power of distribution is legally 19
137	136		accountable within the meaning of 26 U.S.C. Section 674(b)(5)(A), as is 20
138	137		existed on January 1, 2025, and any applicable regulations; 21
139	138		(22) “Record” means information that is inscribed on a tangible 22
140	139		medium or that is stored in an electronic or other medium and is retrievable 23
141	140		in perceivable form; 24
142	141		(23) “Second trust” means a: 25
143	142		(A) First trust after modification under this chapter; or 26
144	143		(B) Trust to which a distribution of property from a first 27
145	144		trust is or may be made under this chapter; 28
146	145		(24) “Second-trust instrument” means the trust instrument for a 29
147	146		second trust; 30
148	147		(25)(A) “Settlor”, except as otherwise provided in § 28 -78-125, 31
149	148		means a person, including a testator, that creates or contributes property to 32
150	149		a trust. 33
151	150		(B) If more than one person creates or contributes 34
152	151		property to a trust, each person is a settlor of the portion of the trust 35
153	152		property attributable to the person’s contribution except to the extent 36 HB1749
154	153
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156	155		another person has power to revoke or withdraw that portion; 1
157	156		(26) “Sign” means, with present intent to authenticate or adopt 2
158	157		a record to: 3
159	158		(A) Execute or adopt a tangible symbol; or 4
160	159		(B) Attach to or logically associate with the record an 5
161	160		electronic symbol, sound, or process; 6
162	161		(27) “State” means a state of the United States, the District of 7
163	162		Columbia, Puerto Rico, the United States Virgin Islands, or any territory or 8
164	163		insular possession subject to the jurisdiction of the United States; 9
165	164		(28) “Terms of the trust” means: 10
166	165		(A) Except as otherwise provided in subdivision (28)(B) of 11
167	166		this section, the manifestation of the settlor’s intent regarding a trust’s 12
168	167		provisions as: 13
169	168		(i) Expressed in the trust instrument; or 14
170	169		(ii) Established by other evidence that would be 15
171	170		admissible in a judicial proceeding; or 16
172	171		(B) The trust’s provisions as established, determined, or 17
173	172		amended by a: 18
174	173		(i) Trustee or other person in accordance with 19
175	174		applicable law; 20
176	175		(ii) Court order; or 21
177	176		(iii) Nonjudicial settlement agreement under § 28 -22
178	177		73-111; and 23
179	178		(29) “Trust instrument” means a record executed by the settlor 24
180	179		to create a trust or by any person to create a second trust which contains 25
181	180		some or all of the terms of the trust, including any amendments. 26
182	181		27
183	182		28-78-103. Scope. 28
184	183		(a) Except as otherwise provided in subsections (b) and (c) of this 29
185	184		section, this chapter applies to an express trust that is irrevocable or 30
186	185		revocable by the settlor only with the consent of the trustee or a person 31
187	186		holding an adverse interest. 32
188	187		(b) This chapter does not apply to a trust held solely for charitable 33
189	188		purposes. 34
190	189		(c) Subject to § 28-78-115, a trust instrument may restrict or 35
191	190		prohibit exercise of the decanting power. 36 HB1749
192	191
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194	193		(d) This chapter does not limit the power of a trustee, powerholder, 1
195	194		or other person to distribute or appoint property in further trust or to 2
196	195		modify a trust under the trust instrument, law of this state other than this 3
197	196		act, common law, a court order, or a nonjudicial settlement agreement. 4
198	197		(e) This chapter does not affect the ability of a settlor to provide 5
199	198		in a trust instrument for the distribution of the trust property or 6
200	199		appointment in further trust of the trust property or for modification of the 7
201	200		trust instrument. 8
202	201		9
203	202		28-78-104. Fiduciary duty. 10
204	203		(a) In exercising the decanting power, an authorized fiduciary shall 11
205	204		act in accordance with its fiduciary duties, including the duty to chapter in 12
206	205		accordance with the purposes of the first trust. 13
207	206		(b) This chapter does not create or imply a duty to exercise the 14
208	207		decanting power or to inform beneficiaries about the applicability of this 15
209	208		act. 16
210	209		(c) Except as otherwise provided in a first -trust instrument, for 17
211	210		purposes of this chapter and § 28 -73-802 and § 28-73-803, the terms of the 18
212	211		first trust are deemed to include the decanting power. 19
213	212		20
214	213		28-78-105. Application - Governing law. 21
215	214		This chapter applies to a trust created before, on, or after the 22
216	215		effective date of this chapter which: 23
217	216		(1) Has its principal place of administration in this state, 24
218	217		including a trust whose principal place of administration has been changed to 25
219	218		this state; or 26
220	219		(2) Provides by its trust instrument that it is governed by the 27
221	220		law of this state or is governed by the law of this state for the purpose of: 28
222	221		(A) Administration, including administration of a trust 29
223	222		whose governing law for purposes of administration has been changed to the 30
224	223		law of this state; 31
225	224		(B) Construction of terms of the trust; or 32
226	225		(C) Determining the meaning or effect of terms of the 33
227	226		trust. 34
228	227		35
229	228		28-78-106. Reasonable reliance. 36 HB1749
230	229
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232	231		A trustee or other person that reasonably relies on the validity of a 1
233	232		distribution of part or all of the property of a trust to another trust, or a 2
234	233		modification of a trust, under this chapter, law of this state other than 3
235	234		this chapter, or the law of another jurisdiction is not liable to any person 4
236	235		for any action or failure to act as a result of the reliance. 5
237	236		6
238	237		28-78-107. Notice - Exercise of decanting power. 7
239	238		(a) In this section, a notice period begins on the day notice is given 8
240	239		under subsection (c) of this section and ends fifty -nine (59) days after the 9
241	240		day notice is given. 10
242	241		(b) Except as otherwise provided in this chapter, an authorized 11
243	242		fiduciary may exercise the decanting power without the consent of any person 12
244	243		and without court approval. 13
245	244		(c) Except as otherwise provided in subsection (f) of this section, an 14
246	245		authorized fiduciary shall give notice in a record of the intended exercise 15
247	246		of the decanting power not later than sixty (60) days before the exercise to: 16
248	247		(1) Each settlor of the first trust, if living or then in 17
249	248		existence; 18
250	249		(2) Each qualified beneficiary of the first trust; 19
251	250		(3) Each holder of a presently exercisable power of appointment 20
252	251		over any part or all of the first trust; 21
253	252		(4) Each person that currently has the right to remove or 22
254	253		replace the authorized fiduciary; 23
255	254		(5) Each other fiduciary of the first trust; 24
256	255		(6) Each fiduciary of the second trust; and 25
257	256		(7) The Attorney General, if § 28 -78-114(b) applies. 26
258	257		(d) An authorized fiduciary is not required to give notice under 27
259	258		subsection (c) of this section to a: 28
260	259		(1) Qualified beneficiary who is a minor and has no 29
261	260		representative; or 30
262	261		(2) Person that is not known to the fiduciary or is known to the 31
263	262		fiduciary but cannot be located by the fiduciary after reasonable diligence. 32
264	263		(e) A notice under subsection (c) of this section shall: 33
265	264		(1) Specify the manner in which the authorized fiduciary intends 34
266	265		to exercise the decanting power; 35
267	266		(2) Specify the proposed effective date for exercise of the 36 HB1749
268	267
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270	269		power; 1
271	270		(3) Include a copy of the first -trust instrument; and 2
272	271		(4) Include a copy of all second -trust instruments. 3
273	272		(f) The decanting power may be exercised before expiration of the 4
274	273		notice period under subsection (a) of this section if all persons entitled to 5
275	274		receive notice waive the period in a signed record. 6
276	275		(g) The receipt of notice, waiver of the notice period, or expiration 7
277	276		of the notice period does not affect the right of a person to file an 8
278	277		application under Arkansas Code § 28 -78-109 asserting that: 9
279	278		(1) An attempted exercise of the decanting power is ineffective 10
280	279		because it did not comply with this chapter or was an abuse of discretion or 11
281	280		breach of fiduciary duty; or 12
282	281		(2) § 28-78-122 applies to the exercise of the decanting power. 13
283	282		(h) An exercise of the decanting power is not ineffective because of 14
284	283		the failure to give notice to one or more persons under subsection (c) of 15
285	284		this section if the authorized fiduciary acted with reasonable care to comply 16
286	285		with subsection (c) of this section. 17
287	286		18
288	287		28-78-108. Representation. 19
289	288		(a) Notice to a person with authority to represent and bind another 20
290	289		person under a first -trust instrument or § 28 -73-301 et seq., has the same 21
291	290		effect as notice given directly to the person represented. 22
292	291		(b) Consent of or waiver by a person with authority to represent and 23
293	292		bind another person under a first -trust instrument or § 28 -73-301 et seq., is 24
294	293		binding on the person represented unless the person represented objects to 25
295	294		the representation before the consent or waiver otherwise would become 26
296	295		effective. 27
297	296		(c) A person with authority to represent and bind another person under 28
298	297		a first-trust instrument or § 28 -73-301 et seq., may file an application 29
299	298		under § 28-78-109 on behalf of the person represented. 30
300	299		(d) A settlor shall not represent or bind a beneficiary under this 31
301	300		chapter. 32
302	301		33
303	302		28-78-109. Court involvement. 34
304	303		(a) On application of an authorized fiduciary, a person entitled to 35
305	304		notice under § 28-78-107(c), a beneficiary, or with respect to a charitable 36 HB1749
306	305
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308	307		interest the Attorney General or other person that has standing to enforce 1
309	308		the charitable interest, the court may: 2
310	309		(1) Provide instructions to the authorized fiduciary regarding 3
311	310		whether a proposed exercise of the decanting power is permitted under this 4
312	311		chapter and consistent with the fiduciary duties of the authorized fiduciary; 5
313	312		(2) Appoint a special fiduciary and authorize the special 6
314	313		fiduciary to determine whether the decanting power should be exercised under 7
315	314		this chapter and to exercise the decanting power; 8
316	315		(3) Approve an exercise of the decanting power; 9
317	316		(4) Determine that a proposed or attempted exercise of the 10
318	317		decanting power is ineffective because: 11
319	318		(A) After applying § 28 -78-122, the proposed or attempted 12
320	319		exercise does not or did not comply with this chapter; or 13
321	320		(B) The proposed or attempted exercise would be or was an 14
322	321		abuse of the fiduciary’s discretion or a breach of fiduciary duty; 15
323	322		(5) Determine the extent to which Arkansas Code § 28 -78-122 16
324	323		applies to a prior exercise of the decanting power; 17
325	324		(6) Provide instructions to the trustee regarding the 18
326	325		application of § 28-78-122 to a prior exercise of the decanting power; or 19
327	326		(7) Order other relief to carry out the purposes of this chapter 20
328	327		(b) On application of an authorized fiduciary, the court may approve: 21
329	328		(1) An increase in the fiduciary’s compensation under § 28 -78-22
330	329		116; or 23
331	330		(2) A modification under § 28 -778-118 of a provision granting a 24
332	331		person the right to remove or replace the fiduciary. 25
333	332		26
334	333		28-78-110. Formalities. 27
335	334		(a) An exercise of the decanting power shall be made in a record 28
336	335		signed by an authorized fiduciary. 29
337	336		(b) The signed record shall, directly or by reference to the notice 30
338	337		required by § 28-78-107, identify the first trust and the second trust or 31
339	338		trusts and state the property of the first trust being distributed to each 32
340	339		second trust and the property, if any, that remains in the first trust. 33
341	340		34
342	341		28-78-111. Decanting power under expanded distributive discretion. 35
343	342		(a) In this section: 36 HB1749
344	343
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346	345		(1)(A) “Noncontingent right” means a right that is not subject 1
347	346		to the exercise of discretion or the occurrence of a specified event that is 2
348	347		not certain to occur. 3
349	348		(B) "Noncontingent right" does not mean a right held by a 4
350	349		beneficiary if a person has discretion to distribute property subject to the 5
351	350		right to a person other than the beneficiary or the beneficiary’s estate; 6
352	351		(2) “Presumptive remainder beneficiary” means a qualified 7
353	352		beneficiary other than a current beneficiary; 8
354	353		(3)(A) “Successor beneficiary” means a beneficiary that is not 9
355	354		a qualified beneficiary on the date the beneficiary’s qualification is 10
356	355		determined. 11
357	356		(B) "Successor beneficiary" does not mean a person that is 12
358	357		a beneficiary only because the person holds a nongeneral power of 13
359	358		appointment; and 14
360	359		(4) “Vested interest” means a: 15
361	360		(A) Right to a mandatory distribution that is a 16
362	361		noncontingent right as of the date of the exercise of the decanting power; 17
363	362		(B) Current and noncontingent right, annually or more 18
364	363		frequently, to a mandatory distribution of income, a specified dollar amount, 19
365	364		or a percentage of value of some or all of the trust property; 20
366	365		(C) Current and noncontingent right, annually or more 21
367	366		frequently, to withdraw income, a specified dollar amount, or a percentage of 22
368	367		value of some or all of the trust property; 23
369	368		(D) Presently exercisable general power of appointment; or 24
370	369		(E) Right to receive an ascertainable part of the trust 25
371	370		property on the trust’s termination which is not subject to the exercise of 26
372	371		discretion or to the occurrence of a specified event that is not certain to 27
373	372		occur. 28
374	373		(b) Subject to subsection (c) of this section and Arkansas Code § 28 -29
375	374		78-114, an authorized fiduciary that has expanded distributive discretion 30
376	375		over the principal of a first trust for the benefit of one or more current 31
377	376		beneficiaries may exercise the decanting power over the principal of the 32
378	377		first trust. 33
379	378		(c) Subject to § 28-78-113, in an exercise of the decanting power 34
380	379		under this section, a second trust shall not: 35
381	380		(1) Include as a current beneficiary a person that is not a 36 HB1749
382	381
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384	383		current beneficiary of the first trust, except as otherwise provided in 1
385	384		subsection (d) of this section; 2
386	385		(2) Include as a presumptive remainder beneficiary or successor 3
387	386		beneficiary a person that is not a current beneficiary, presumptive remainder 4
388	387		beneficiary, or successor beneficiary of the first trust, except as otherwise 5
389	388		provided in subsection (d) of this section; or 6
390	389		(3) Reduce or eliminate a vested interest. 7
391	390		(d) Subject to subdivision (c)(3) of this section and § 28 -78-114, in 8
392	391		an exercise of the decanting power under this section, a second trust may be 9
393	392		a trust created or administered under the law of any jurisdiction and may: 10
394	393		(1) Retain a power of appointment granted in the first trust; 11
395	394		(2) Omit a power of appointment granted in the first trust, 12
396	395		other than a presently exercisable general power of appointment; 13
397	396		(3) Create or modify a power of appointment if the powerholder 14
398	397		is a current beneficiary of the first trust and the authorized fiduciary has 15
399	398		expanded distributive discretion to distribute principal to the beneficiary; 16
400	399		and 17
401	400		(4) Create or modify a power of appointment if the powerholder 18
402	401		is a presumptive remainder beneficiary or successor beneficiary of the first 19
403	402		trust, but the exercise of the power may take effect only after the 20
404	403		powerholder becomes, or would have become if then living, a current 21
405	404		beneficiary. 22
406	405		(e)(1) A power of appointment described in subdivision (d)(1) through 23
407	406		(4) of this section may be general or nongeneral. 24
408	407		(2) The class of permissible appointees in favor of which the 25
409	408		power may be exercised may be broader than or different from the 26
410	409		beneficiaries of the first trust. 27
411	410		(f) If an authorized fiduciary has expanded distributive discretion 28
412	411		over part but not all of the principal of a first trust, the fiduciary may 29
413	412		exercise the decanting power under this section over that part of the 30
414	413		principal over which the authorized fiduciary has expanded distributive 31
415	414		discretion. 32
416	415		33
417	416		28-78-112. Decanting power under limited distributive discretion. 34
418	417		(a) In this section, “limited distributive discretion” means a 35
419	418		discretionary power of distribution that is limited to an ascertainable 36 HB1749
420	419
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422	421		standard or a reasonably definite standard. 1
423	422		(b) An authorized fiduciary that has limited distributive discretion 2
424	423		over the principal of the first trust for benefit of one or more current 3
425	424		beneficiaries may exercise the decanting power over the principal of the 4
426	425		first trust. 5
427	426		(c)(1) Under this section and subject to § 28 -78-114, a second trust 6
428	427		may be created or administered under the law of any jurisdiction. 7
429	428		(2) Under this section, the second trusts, in the aggregate, 8
430	429		shall grant each beneficiary of the first trust beneficial interests which 9
431	430		are substantially similar to the beneficial interests of the beneficiary in 10
432	431		the first trust. 11
433	432		(d)(1) A power to make a distribution under a second trust for the 12
434	433		benefit of a beneficiary who is an individual is substantially similar to a 13
435	434		power under the first trust to make a distribution directly to the 14
436	435		beneficiary. 15
437	436		(2) A distribution is for the benefit of a beneficiary if the: 16
438	437		(A) Distribution is applied for the benefit of the 17
439	438		beneficiary; 18
440	439		(B) Beneficiary is under a legal disability or the trustee 19
441	440		reasonably believes the beneficiary is incapacitated, and the distribution is 20
442	441		made as permitted under the Arkansas Trust Code, § 28 -73-101 et seq.; or 21
443	442		(C) Distribution is made as permitted under the terms of 22
444	443		the first-trust instrument and the second -trust instrument for the benefit of 23
445	444		the beneficiary. 24
446	445		(e) If an authorized fiduciary has limited distributive discretion 25
447	446		over part but not all of the principal of a first trust, the fiduciary may 26
448	447		exercise the decanting power under this section over that part of the 27
449	448		principal over which the authorized fiduciary has limited distributive 28
450	449		discretion. 29
451	450		30
452	451		28-78-113. Trust for beneficiary with disability. 31
453	452		(a) In this section: 32
454	453		(1) “Beneficiary with a disability” means a beneficiary of a 33
455	454		first trust who the special -needs fiduciary believes may qualify for 34
456	455		governmental benefits based on disability, whether or not the beneficiary 35
457	456		currently receives those benefits or is an individual who has been 36 HB1749
458	457
459	458		13 03/11/2025 5:25:18 PM MAG009
460	459		adjudicated incompetent; 1
461	460		(2) “Governmental benefits” means financial aid or services from 2
462	461		a state, federal, or other public agency; 3
463	462		(3) “Special-needs fiduciary” means, with respect to a trust 4
464	463		that has a beneficiary with a disability: 5
465	464		(A) A trustee or other fiduciary, other than a settlor, 6
466	465		that has discretion to distribute part or all of the principal of a first 7
467	466		trust to one or more current beneficiaries; 8
468	467		(B) If no trustee or fiduciary has discretion under 9
469	468		subdivision (a)(3)(A) of this section, a trustee or other fiduciary, other 10
470	469		than a settlor, that has discretion to distribute part or all of the income 11
471	470		of the first trust to one or more current beneficiaries; or 12
472	471		(C) If no trustee or fiduciary has discretion under 13
473	472		subdivisions (a)(3)(A) and (B) of this section, a trustee or other fiduciary, 14
474	473		other than a settlor, that is required to distribute part or all of the 15
475	474		income or principal of the first trust to one or more current beneficiaries; 16
476	475		and 17
477	476		(4) “Special-needs trust” means a trust the trustee believes 18
478	477		would not be considered a resource for purposes of determining whether a 19
479	478		beneficiary with a disability is eligible for governmental benefits. 20
480	479		(b) A special-needs fiduciary may exercise the decanting power under § 21
481	480		28-78-111 over the principal of a first trust as if the fiduciary had 22
482	481		authority to distribute principal to a beneficiary with a disability subject 23
483	482		to expanded distributive discretion if: 24
484	483		(1) A second trust is a special -needs trust that benefits the 25
485	484		beneficiary with a disability; and 26
486	485		(2) The special-needs fiduciary determines that exercise of the 27
487	486		decanting power will further the purposes of the first trust. 28
488	487		(c) In an exercise of the decanting power under this section, the 29
489	488		following rules apply: 30
490	489		(1) Notwithstanding § 28 -78-111(c)(2), the interest in the 31
491	490		second trust of a beneficiary with a disability may: 32
492	491		(A) Be a pooled trust as defined by Medicaid law for the 33
493	492		benefit of the beneficiary with a disability under 42 U.S.C. Section 34
494	493		1396p(d)(4)(C), as it existed on January 1, 2025; or 35
495	494		(B) Contain payback provisions complying with 36 HB1749
496	495
497	496		14 03/11/2025 5:25:18 PM MAG009
498	497		reimbursement requirements of Medicaid law under 42 U.S.C. Section 1
499	498		1396p(d)(4)(A), as it existed on January 1, 2025; 2
500	499		(2) Section 28-78-111(c)(3) does not apply to the interests of 3
501	500		the beneficiary with a disability; and 4
502	501		(3) Except as affected by any change to the interests of the 5
503	502		beneficiary with a disability, the second trust, or if there are two or more 6
504	503		second trusts, the second trusts in the aggregate, shall grant each other 7
505	504		beneficiary of the first trust beneficial interests in the second trusts 8
506	505		which are substantially similar to the beneficiary’s beneficial interests in 9
507	506		the first trust. 10
508	507		11
509	508		28-78-114. Protection of charitable interest. 12
510	509		(a) In this section: 13
511	510		(1) “Determinable charitable interest” means a charitable 14
512	511		interest that is a right to a mandatory distribution currently, periodically, 15
513	512		on the occurrence of a specified event, or after the passage of a specified 16
514	513		time and which is unconditional or will be held solely for charitable 17
515	514		purposes. 18
516	515		(2) “Unconditional” means not subject to the occurrence of a 19
517	516		specified event that is not certain to occur, other than a requirement in a 20
518	517		trust instrument that a charitable organization be in existence or qualify 21
519	518		under a particular provision of the United States Internal Revenue Code of 22
520	519		1986, as amended, on the date of the distribution, if the charitable 23
521	520		organization meets the requirement on the date of determination. 24
522	521		(b) If a first trust contains a determinable charitable interest, the 25
523	522		Attorney General has the rights of a qualified beneficiary and may represent 26
524	523		and bind the charitable interest. 27
525	524		(c) If a first trust contains a charitable interest, the second trust 28
526	525		or trusts shall not: 29
527	526		(1) Diminish the charitable interest; 30
528	527		(2) Diminish the interest of an identified charitable 31
529	528		organization that holds the charitable interest; 32
530	529		(3) Alter any charitable purpose stated in the first -trust 33
531	530		instrument; or 34
532	531		(4) Alter any condition or restriction related to the charitable 35
533	532		interest. 36 HB1749
534	533
535	534		15 03/11/2025 5:25:18 PM MAG009
536	535		(d) If there are two (2) or more second trusts, the second trusts 1
537	536		shall be treated as one trust for purposes of determining whether the 2
538	537		exercise of the decanting power diminishes the charitable interest or 3
539	538		diminishes the interest of an identified charitable organization for purposes 4
540	539		of subsection (c) of this section. 5
541	540		(e) If a first trust contains a determinable charitable interest, the 6
542	541		second trust or trusts that include a charitable interest pursuant to 7
543	542		subsection (c) of this section shall be administered under the law of this 8
544	543		state unless the: 9
545	544		(1) Attorney General, after receiving notice under § 28 -78-107, 10
546	545		fails to object in a signed record delivered to the authorized fiduciary 11
547	546		within the notice period; 12
548	547		(2) Attorney General consents in a signed record to the second 13
549	548		trust or trusts being administered under the law of another jurisdiction; or 14
550	549		(3) Court approves the exercise of the decanting power. 15
551	550		(f) This chapter does not limit the powers and duties of the Attorney 16
552	551		General under law of this state other than this chapter. 17
553	552		18
554	553		27-78-115. Trust limitation on decanting. 19
555	554		(a) An authorized fiduciary shall not exercise the decanting power to 20
556	555		the extent the first -trust instrument expressly prohibits exercise of: 21
557	556		(1) The decanting power; or 22
558	557		(2) A power granted by state law to the fiduciary to distribute 23
559	558		part or all of the principal of the trust to another trust or to modify the 24
560	559		trust. 25
561	560		(b) Exercise of the decanting power is subject to any restriction in 26
562	561		the first-trust instrument that expressly applies to exercise of: 27
563	562		(1) The decanting power; or 28
564	563		(2) A power granted by state law to a fiduciary to distribute 29
565	564		part or all of the principal of the trust to another trust or to modify the 30
566	565		trust. 31
567	566		(c) A general prohibition of the amendment or revocation of a first 32
568	567		trust, a spendthrift clause, or a clause restraining the voluntary or 33
569	568		involuntary transfer of a beneficiary’s interest does not preclude exercise 34
570	569		of the decanting power. 35
571	570		(d) Subject to subsections (a) and (b) of this section, an authorized 36 HB1749
572	571
573	572		16 03/11/2025 5:25:18 PM MAG009
574	573		fiduciary may exercise the decanting power under this chapter even if the 1
575	574		first-trust instrument permits the authorized fiduciary or another person to 2
576	575		modify the first-trust instrument or to distribute part or all of the 3
577	576		principal of the first trust to another trust. 4
578	577		(e) If a first-trust instrument contains an express prohibition 5
579	578		described in subsection (a) of this section or an express restriction 6
580	579		described in subsection (b) of this section, the provision shall be included 7
581	580		in the second-trust instrument. 8
582	581		9
583	582		28-78-116. Change in compensation. 10
584	583		(a) If a first-trust instrument specifies an authorized fiduciary’s 11
585	584		compensation, the fiduciary shall not exercise the decanting power to 12
586	585		increase the fiduciary’s compensation above the specified compensation 13
587	586		unless: 14
588	587		(1) All qualified beneficiaries of the second trust consent to 15
589	588		the increase in a signed record; or 16
590	589		(2) The increase is approved by the court. 17
591	590		(b) If a first-trust instrument does not specify an authorized 18
592	591		fiduciary’s compensation, the fiduciary shall not exercise the decanting 19
593	592		power to increase the fiduciary’s compensation above the compensation 20
594	593		permitted by § 28-73-708 unless: 21
595	594		(1) All qualified beneficiaries of the second trust consent to 22
596	595		the increase in a signed record; or 23
597	596		(2) The increase is approved by the court. 24
598	597		(c) A change in an authorized fiduciary’s compensation which is 25
599	598		incidental to other changes made by the exercise of the decanting power is 26
600	599		not an increase in the fiduciary’s compensation for purposes of subsections 27
601	600		(a) and (b) of this section. 28
602	601		29
603	602		28-78-117. Relief from liability and indemnification. 30
604	603		(a) Except as otherwise provided in this section, a second -trust 31
605	604		instrument shall not relieve an authorized fiduciary from liability for 32
606	605		breach of trust to a greater extent than the first -trust instrument. 33
607	606		(b) A second-trust instrument may provide for indemnification of an 34
608	607		authorized fiduciary of the first trust or another person acting in a 35
609	608		fiduciary capacity under the first trust for any liability or claim that 36 HB1749
610	609
611	610		17 03/11/2025 5:25:18 PM MAG009
612	611		would have been payable from the first trust if the decanting power had not 1
613	612		been exercised. 2
614	613		(c) A second-trust instrument shall not reduce fiduciary liability in 3
615	614		the aggregate. 4
616	615		(d) Subject to subsection (c) of this section, a second -trust 5
617	616		instrument may divide and reallocate fiduciary powers among fiduciaries, 6
618	617		including one or more trustees, distribution advisors, investment advisors, 7
619	618		trust protectors, or other persons, and relieve a fiduciary from liability 8
620	619		for an act or failure to act of another fiduciary as permitted by law of this 9
621	620		state other than this chapter. 10
622	621		11
623	622		28-78-118. Removal or replacement of authorized fiduciary. 12
624	623		An authorized fiduciary shall not exercise the decanting power to 13
625	624		modify a provision in a first -trust instrument granting another person power 14
626	625		to remove or replace the fiduciary unless the: 15
627	626		(1) Person holding the power consents to the modification in a 16
628	627		signed record and the modification applies only to the person; 17
629	628		(2) Person holding the power and the qualified beneficiaries of 18
630	629		the second trust consent to the modification in a signed record and the 19
631	630		modification grants a substantially similar power to another person; or 20
632	631		(3) Court approves the modification and the modification grants 21
633	632		a substantially similar power to another person. 22
634	633		23
635	634		28-78-119. Tax-related limitations. 24
636	635		(a) In this section: 25
637	636		(1) “Grantor trust” means a trust as to which a settlor of a 26
638	637		first trust is considered the owner under 26 U.S.C. Sections 671 through 677, 27
639	638		as it existed on January 1, 2025, or 26 U.S.C. Section 679, as it existed on 28
640	639		January 1, 2025; 29
641	640		(2) “Internal Revenue Code” means the United States Internal 30
642	641		Revenue Code of 1986, as it existed on January 1, 2025; 31
643	642		(3) “Nongrantor trust” means a trust that is not a grantor 32
644	643		trust; and 33
645	644		(4) “Qualified benefits property” means property subject to the 34
646	645		minimum distribution requirements of 26 U.S.C. Section 401(a)(9), as it 35
647	646		existed on January 1, 2025, and any applicable regulations, or to any similar 36 HB1749
648	647
649	648		18 03/11/2025 5:25:18 PM MAG009
650	649		requirements that refer to 26 U.S.C. Section 401(a)(9) or the regulations. 1
651	650		(b) An exercise of the decanting power is subject to the following 2
652	651		limitations: 3
653	652		(1) If a first trust contains property that qualified, or would 4
654	653		have qualified but for provisions of this chapter other than this section, 5
655	654		for a marital deduction for purposes of the gift or estate tax under the 6
656	655		Internal Revenue Code or a state gift, estate, or inheritance tax, the 7
657	656		second-trust instrument shall not include or omit any term that, if included 8
658	657		in or omitted from the trust instrument for the trust to which the property 9
659	658		was transferred, would have prevented the transfer from qualifying for the 10
660	659		deduction, or would have reduced the amount of the deduction, under the same 11
661	660		provisions of the Internal Revenue Code or state law under which the transfer 12
662	661		qualified; 13
663	662		(2) If the first trust contains property that qualified, or 14
664	663		would have qualified but for provisions of this chapter other than this 15
665	664		section, for a charitable deduction for purposes of the income, gift, or 16
666	665		estate tax under the Internal Revenue Code or a state income, gift, estate, 17
667	666		or inheritance tax, the second -trust instrument shall not include or omit any 18
668	667		term that, if included in or omitted from the trust instrument for the trust 19
669	668		to which the property was transferred, would have prevented the transfer from 20
670	669		qualifying for the deduction, or would have reduced the amount of the 21
671	670		deduction, under the same provisions of the Internal Revenue Code or state 22
672	671		law under which the transfer qualified; 23
673	672		(3)(A) If the first trust contains property that qualified, or 24
674	673		would have qualified but for provisions of this chapter other than this 25
675	674		section, for the exclusion from the gift tax described in 26 U.S.C. Section 26
676	675		2503(b), as it existed on January 1, 20205, the second -trust instrument shall 27
677	676		not include or omit a term that, if included in or omitted from the trust 28
678	677		instrument for the trust to which the property was transferred, would have 29
679	678		prevented the transfer from qualifying under 26 U.S.C. Section 2503(b), as 30
680	679		amended. 31
681	680		(B) If the first trust contains property that qualified, 32
682	681		or would have qualified but for provisions of this chapter other than this 33
683	682		section, for the exclusion from the gift tax described in 26 U.S.C. Section 34
684	683		2503(b), as it existed on January 1, 2025, by application of 26 U.S.C. 35
685	684		Section 2503(c),as it existed on January 1, 2025, the second -trust instrument 36 HB1749
686	685
687	686		19 03/11/2025 5:25:18 PM MAG009
688	687		shall not include or omit a term that, if included or omitted from the trust 1
689	688		instrument for the trust to which the property was transferred, would have 2
690	689		prevented the transfer from qualifying under 26 U.S.C. Section 2503(c), as it 3
691	690		existed on January 1, 2025; 4
692	691		(4)(A) If the property of the first trust includes shares of 5
693	692		stock in an S corporation, as defined in 26 U.S.C. Section 1361, as it 6
694	693		existed on January 1, 2025, and the first trust is, or but for provisions of 7
695	694		this chapter other than this section would be, a permitted shareholder under 8
696	695		any provision of 26 U.S.C. Section 1361, as it existed on January 1, 2025, an 9
697	696		authorized fiduciary may exercise the power with respect to part or all of 10
698	697		the S-corporation stock only if any second trust receiving the stock is a 11
699	698		permitted shareholder under 26 U.S.C. Section 1361(c)(2), as it existed on 12
700	699		January 1, 2025. 13
701	700		(B) If the property of the first trust includes shares of 14
702	701		stock in an S corporation and the first trust is, or but for provisions of 15
703	702		this chapter other than this section would be, a qualified subchapter -S trust 16
704	703		within the meaning of 26 U.S.C. Section 1361(d), as it existed on January 1, 17
705	704		2025, the second-trust instrument shall not include or omit a term that 18
706	705		prevents the second trust from qualifying as a qualified subchapter -S trust; 19
707	706		(5) If the first trust contains property that qualified, or would 20
708	707		have qualified but for provisions of this chapter other than this section, 21
709	708		for a zero inclusion ratio for purposes of the generation -skipping transfer 22
710	709		tax under 26 U.S.C. Section 2642(c), as it existed on January 1, 2025, the 23
711	710		second-trust instrument shall not include or omit a term that, if included in 24
712	711		or omitted from the first -trust instrument, would have prevented the transfer 25
713	712		to the first trust from qualifying for a zero inclusion ratio under 26 U.S.C. 26
714	713		Section 2642(c), as it existed on January 1, 2025; 27
715	714		(6)(A) If the first trust is directly or indirectly the 28
716	715		beneficiary of qualified benefits property, the second -trust instrument shall 29
717	716		not include or omit any term that, if included in or omitted from the first -30
718	717		trust instrument, would have increased the minimum distributions required 31
719	718		with respect to the qualified benefits property under 26 U.S.C. Section 32
720	719		401(a)(9), as it existed on January 1, 2025, and any applicable regulations, 33
721	720		or any similar requirements that refer to 26 U.S.C. Section 401(a)(9), as it 34
722	721		existed on January 1, 2025, or the regulations. 35
723	722		(B) If an attempted exercise of the decanting power 36 HB1749
724	723
725	724		20 03/11/2025 5:25:18 PM MAG009
726	725		violates the preceding sentence, the trustee is deemed to have held the 1
727	726		qualified benefits property and any reinvested distributions of the property 2
728	727		as a separate share from the date of the exercise of the power and § 23 -78-3
729	728		122 applies to the separate share; 4
730	729		(7) If the first trust qualifies as a grantor trust because of 5
731	730		the application of 26 U.S.C. Section 672(f)(2)(A), as it existed on January 6
732	731		1, 2025, the second trust shall not include or omit a term that, if included 7
733	732		in or omitted from the first -trust instrument, would have prevented the first 8
734	733		trust from qualifying under 26 U.S.C. Section 672(f)(2)(A), as it existed on 9
735	734		January 1, 2025; 10
736	735		(8)(A) In subdivision(b)(8) of this section, “tax benefit” means 11
737	736		a federal or state tax deduction, exemption, exclusion, or other benefit not 12
738	737		otherwise listed in this section, except for a benefit arising from being a 13
739	738		grantor trust. 14
740	739		(B) Subject to subdivision (b)(9) of this section, a 15
741	740		second-trust instrument shall not include or omit a term that, if included in 16
742	741		or omitted from the first -trust instrument, would have prevented 17
743	742		qualification for a tax benefit if the: 18
744	743		(i) First-trust instrument expressly indicates an 19
745	744		intent to qualify for the benefit or the first -trust instrument clearly is 20
746	745		designed to enable the first trust to qualify for the benefit; and 21
747	746		(ii) Transfer of property held by the first trust or 22
748	747		the first trust qualified, or but for provisions of this other than this 23
749	748		chapter, would have qualified for the tax benefit; 24
750	749		(9) Subject to subdivision (b)(4) of this section except as 25
751	750		otherwise provided in: 26
752	751		(A) Subdivision (b)(7) of this section, the second trust 27
753	752		may be a nongrantor trust, even if the first trust is a grantor trust; and 28
754	753		(B) Subdivision (b)(10) of this section, the second trust 29
755	754		may be a grantor trust, even if the first trust is a nongrantor trust; and 30
756	755		(10) An authorized fiduciary shall not exercise the decanting 31
757	756		power if a settlor objects in a signed record delivered to the fiduciary 32
758	757		within the notice period and the first trust: 33
759	758		(A) And a second trust are both grantor trusts, in whole 34
760	759		or in part, the first trust grants the settlor or another person the power to 35
761	760		cause the first trust to cease to be a grantor trust, and the second trust 36 HB1749
762	761
763	762		21 03/11/2025 5:25:18 PM MAG009
764	763		does not grant an equivalent power to the settlor or other person; or 1
765	764		(B) Is a nongrantor trust and a second trust is a grantor 2
766	765		trust, in whole or in part, with respect to the settlor, unless the: 3
767	766		(i) Settlor has the power at all times to cause the 4
768	767		second trust to cease to be a grantor trust; or 5
769	768		(ii) First-trust instrument contains a provision 6
770	769		granting the settlor or another person a power that would cause the first 7
771	770		trust to cease to be a grantor trust and the second -trust instrument contains 8
772	771		the same provision. 9
773	772		10
774	773		28-78-120. Duration of second trust. 11
775	774		(a) Subject to subsection (b) of this section, a second trust may have 12
776	775		a duration that is the same as or different from the duration of the first 13
777	776		trust. 14
778	777		(b) To the extent that property of a second trust is attributable to 15
779	778		property of the first trust, the property of the second trust is subject to 16
780	779		any rules governing maximum perpetuity, accumulation, or suspension of the 17
781	780		power of alienation which apply to property of the first trust. 18
782	781		19
783	782		28-78-121. Need to distribute not required. 20
784	783		An authorized fiduciary may exercise the decanting power whether or not 21
785	784		under the first trust’s discretionary distribution standard the fiduciary 22
786	785		would have made or could have been compelled to make a discretionary 23
787	786		distribution of principal at the time of the exercise. 24
788	787		25
789	788		28-78-122. Saving provision. 26
790	789		(a) If exercise of the decanting power would be effective under this 27
791	790		chapter except that the second -trust instrument in part does not comply with 28
792	791		this chapter, the exercise of the power is effective and the following rules 29
793	792		apply with respect to the principal of the second trust attributable to the 30
794	793		exercise of the power: 31
795	794		(1) A provision in the second -trust instrument which is not 32
796	795		permitted under this chapter is void to the extent necessary to comply with 33
797	796		this chapter; and 34
798	797		(2) A provision required by this chapter to be in the second -35
799	798		trust instrument which is not contained in the instrument is deemed to be 36 HB1749
800	799
801	800		22 03/11/2025 5:25:18 PM MAG009
802	801		included in the instrument to the extent necessary to comply with this 1
803	802		chapter. 2
804	803		(b) If a trustee or other fiduciary of a second trust determines that 3
805	804		subsection (a) of this section applies to a prior exercise of the decanting 4
806	805		power, the fiduciary shall take corrective action consistent with the 5
807	806		fiduciary’s duties. 6
808	807		7
809	808		28-78-123. Trust for care of animal. 8
810	809		(a) In this section: 9
811	810		(1) “Animal trust” means a trust or an interest in a trust 10
812	811		created to provide for the care of one or more animals; and 11
813	812		(2) “Protector” means a person appointed in an animal trust to 12
814	813		enforce the trust on behalf of the animal or, if no such person is appointed 13
815	814		in the trust, a person appointed by the court for that purpose. 14
816	815		(b) The decanting power may be exercised over an animal trust that has 15
817	816		a protector to the extent the trust could be decanted under this chapter if 16
818	817		each animal that benefits from the trust were an individual, if the protector 17
819	818		consents in a signed record to the exercise of the power. 18
820	819		(c) A protector for an animal has the rights under this chapter of a 19
821	820		qualified beneficiary. 20
822	821		(d) Notwithstanding any other provision of this chapter, if a first 21
823	822		trust is an animal trust, in an exercise of the decanting power, the second 22
824	823		trust shall provide that trust property may be applied only to its intended 23
825	824		purpose for the period the first trust benefitted the animal. 24
826	825		25
827	826		28-78-124. Terms of second trust. 26
828	827		A reference in the Arkansas Trust Code, § 28 -73-101 et seq., to a trust 27
829	828		instrument or terms of the trust includes a second -trust instrument and the 28
830	829		terms of the second trust. 29
831	830		30
832	831		28-78-125. Settlor. 31
833	832		(a) For purposes of law of this state other than this chapter and 32
834	833		subject to subsection (b) of this section, a settlor of a first trust is 33
835	834		deemed to be the settlor of the second trust with respect to the portion of 34
836	835		the principal of the first trust subject to the exercise of the decanting 35
837	836		power. 36 HB1749
838	837
839	838		23 03/11/2025 5:25:18 PM MAG009
840	839		(b) In determining settlor intent with respect to a second trust, the 1
841	840		intent of a settlor of the first trust, a settlor of the second trust, and 2
842	841		the authorized fiduciary may be considered. 3
843	842		4
844	843		28-78-126. Later-discovered property. 5
845	844		(a) Except as otherwise provided in subsection (c) of this section, if 6
846	845		exercise of the decanting power was intended to distribute all the principal 7
847	846		of the first trust to one or more second trusts, later -discovered property 8
848	847		belonging to the first trust and property paid to or acquired by the first 9
849	848		trust after the exercise of the power is part of the trust estate of the 10
850	849		second trust or trusts. 11
851	850		(b) Except as otherwise provided in subsection (c) of this section, if 12
852	851		exercise of the decanting power was intended to distribute less than all the 13
853	852		principal of the first trust to one or more second trusts, later -discovered 14
854	853		property belonging to the first trust or property paid to or acquired by the 15
855	854		first trust after exercise of the power remains part of the trust estate of 16
856	855		the first trust. 17
857	856		(c) An authorized fiduciary may provide in an exercise of the 18
858	857		decanting power or by the terms of a second trust for disposition of later -19
859	858		discovered property belonging to the first trust or property paid to or 20
860	859		acquired by the first trust after exercise of the power. 21
861	860		22
862	861		28-78-127. Obligations. 23
863	862		A debt, liability, or other obligation enforceable against property of 24
864	863		a first trust is enforceable to the same extent against the property when 25
865	864		held by the second trust after exercise of the decanting power. 26
866	865		27
867	866		28-78-128. Uniformity of application and construction. 28
868	867		In applying and construing this uniform act, consideration shall be 29
869	868		given to the need to promote uniformity of the law with respect to its 30
870	869		subject matter among states that enact it. 31
871	870		32
872	871		28-78-129. Relation to Electronic Signatures in Global and National 33
873	872		Commerce Act. 34
874	873		This chapter modifies, limits, or supersedes the Electronic Signatures 35
875	874		in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does 36 HB1749
876	875
877	876		24 03/11/2025 5:25:18 PM MAG009
878	877		not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 1
879	878		7001(c), or authorize electronic delivery of any of the notices described in 2
880	879		Section 103(b) of that act, 15 U.S.C. Section 7003(b). 3
881	880		4
882	881		28-78-130. Severability. 5
883	882		If any provision of this chapter or its application to any person or 6
884	883		circumstance is held invalid, the invalidity does not affect other provisions 7
885	884		or applications of this chapter which can be given effect without the invalid 8
886	885		provision or application, and to this end the provisions of this chapter are 9
887	886		severable. 10
888	887		11
889	888		28-78-131. [Reserved.] 12
890	889		13
891	890		28-78-132. Effective date. 14
892	891		This chapter takes effect on and after January 1, 2026. 15
893	892		16
894	893		17
895		-	~~APPROVED: 4/16/25~~ 18
	894	+	18
896	895		19
897	896		20
898	897		21
899	898		22
900	899		23
901	900		24
902	901		25
903	902		26
904	903		27
905	904		28
906	905		29
907	906		30
908	907		31
909	908		32
910	909		33
911	910		34
912	911		35
913	912		36