Uniform Trust Decanting Act; HB 2172
HB 2172 enacts the Uniform Trust Decanting Act (UTDA) and amends law in the Kansas
Uniform Trust Code, Kansas Probate Code, and Kansas Income Tax Act with respect to the
statutory rule against perpetuities (RAP), to make the RAP inapplicable in certain
circumstances.
UTDA (Sections 2–30)
Definitions (Section 2)
The bill defines various terms used throughout the UTDA. Among the definitions in the
bill:“Decanting power” is defined to mean the power of an authorized fiduciary under the UTDA
to distribute property of a first trust to one or more second trusts or to modify the terms of the
first trust;
●“Authorized fiduciary” means a:
○Trustee or other fiduciary, other than a settlor, that has discretion to
distribute or direct a trustee to distribute part or all of the principal of the
first trust to one or more current beneficiaries;
○Special fiduciary appointed by a court to intervene in the exercise of
decanting power pursuant to Section 9 of the bill; or
○Special-needs fiduciary as defined and described under Section 13 of the
bill;
●“Beneficiary” means a person that:
○Has a present or future, vested or contingent, beneficial interest in a trust;
○Holds a power of appointment over trust property; or
○Is an identified charitable organization that will or may receive
distributions under the terms of the trust;
●“First trust” means a trust over which an authorized fiduciary may exercise the
decanting power;
●“Second trust” means a first trust after modification under the UTDA or trust to
which a distribution of property from a first trust is or may be made under UTDA;
●“Terms of the trust” means:
○The manifestation of the settlor’s intent regarding a trust’s provisions as
expressed in the trust instrument or established by other evidence that
would be admissible in a judicial proceeding; or
Kansas Legislative Research Department 1 2023 Summary of Legislation ○The trust’s provisions as established, determined, or amended by a
trustee or other person in accordance with applicable law, court order, or
nonjudicial settlement agreement;
●“Trust instrument” means a record executed by the settlor to create a trust or by
any person to create a second trust that contains some or all of the terms of the
trust, including any amendments; and
●“Settlor” means, except as otherwise provided in provisions regarding a second
trust settlor in Section 25 of the bill, a person, including a testator, that creates or
contributes property to a trust. If more than one person creates or contributes
property to a trust, each person would be a “settlor” of the portion of the trust
property attributable to the person’s contribution except to the extent another
person has power to revoke or withdraw that portion.
Applicability (Sections 3 and 5)
The bill states the UTDA applies to irrevocable express trusts, or express trusts that are
only revocable with the consent of the trustee or person holding an adverse interest. The UTDA
shall not be applicable to trusts held solely for a charitable purpose.
Additionally, the bill allows a trust instrument to restrict or prohibit exercise of the
decanting power.
The bill specifies that the UTDA does not limit the power of a trustee, powerholder, or
other person to distribute or appoint property in a further trust or to modify a trust under the
instrument, other state laws, common law, a court order, or a nonjudicial settlement agreement.
The bill also specifies the UTDA does not affect the ability of a settlor to make provisions in a
trust instrument for the distribution of trust property, appointment in further trust of the trust
property, or for modification of the trust instrument.
The UTDA applies to any trust created before, on, or after July 1, 2023, that:
●Has its principal place of administration in Kansas, including trusts whose
principal place of administration has changed to Kansas; or
●Provides by its trust instrument that it is governed by Kansas law or is governed
by Kansas law for the purpose of:
○Administration, including administration of a trust whose governing law
has changed to Kansas;
○Construction of the terms of the trust; or
○Determining the meaning or effect of the terms of the trust.
Kansas Legislative Research Department 2 2023 Summary of Legislation Fiduciary Duties With Respect to Decanting Power (Section 4)
The UTDA requires authorized fiduciaries to exercise decanting power in accordance
with their fiduciary duties, including the duty to act in accordance with the purposes of the first
trust.
The bill specifies the UTDA does not create or imply a duty to exercise the decanting
power or to inform the beneficiaries about the applicability of the UTDA.
The bill further provides, for purposes of the UTDA and certain duties of trustees
contained in the Kansas Uniform Trust Code, the terms of the first trust are deemed to include
the decanting power, except as otherwise provided in the first-trust instrument.
Reliance on Prior Decanting (Section 6)
The UTDA specifies that a trustee or other person’s reliance upon the validity of the
decanting of property or a modification of a trust pursuant to the UTDA or other state law would
not make such person liable for any action or failure to act as a result of this reliance.
Notice Requirements for Decanting (Section 7)
Under the bill, the notice period for decanting begins when such notice is given under
the terms of the UTDA (described below), and ends 59 days after the day notice is given. The
bill also states an authorized fiduciary may exercise the decanting power without consent of any
person and without court approval, provided other requirements of the UTDA are met.
The UTDA requires notice be given in a record of the intended exercise of the decanting
power not later than 60 days before such exercise to certain persons as specified by the bill.
Such notice is required to contain certain information related to the manner and reason for the
proposed decanting and to include copies of related agreements, instruments, and statements.
The bill does not require notice be provided to persons not known to the fiduciary or who
cannot be located after reasonable diligence. Additionally, the bill states an exercise of the
decanting power is not ineffective because of failure to give the required notice to one or more
persons if the authorized fiduciary acted with reasonable care in providing notice pursuant to the
bill.
Before expiration of the notice period, the bill allows exercise of the decanting power if
all persons entitled to receive notice waive the period in a signed record.
The bill states receipt of notice, waiver of the notice period, or expiration of the notice
period shall not affect the right of persons to seek judicial instruction or approval related to a
proposed decanting.
Kansas Legislative Research Department 3 2023 Summary of Legislation Authority to Represent and Bind (Section 8)
The bill specifies notice provided to a person with the authority to represent and bind
another person under a first-trust instrument or the Kansas Uniform Trust Code has the same
effect as notice provided directly to such person.
Consent or waiver by the person with the authority described above shall be binding on
the person represented unless objected to by such person before the consent or waiver could
otherwise become effective.
A person with the above authority may also file an application with a court on behalf of
the person represented to inquire whether the decanting power could be exercised in
accordance with the UTDA.
The bill also provides that a settlor may not represent or bind a beneficiary under the
UTDA.
Authority of the Court to Intervene in the Exercise of Decanting Power (Section 9)
The bill allows certain specified persons to file an application with a court seeking further
instruction or approval with respect to an exercise of decanting power and provides the actions
a court may take upon such application.
The bill specifies a proceeding to determine whether a proposed or attempted exercise
of the decanting power is ineffective may not be commenced by a person entitled to notice
under the UTDA or by a beneficiary unless such proceeding is commenced within six months
from the day notice is given. Failure to receive a notice will not extend the time by which such
proceeding must commence if the authorized fiduciary acted with reasonable diligence to
comply with the UTDA.
The bill allows a court in a judicial proceeding involving the decanting of a trust, as
justice and equity may require, to award costs and expenses, including reasonable attorney
fees, to any party, to be paid by another party, or from the trust that is the subject of the
controversy.
Signed Record (Section 10)
The bill requires an exercise of the decanting power to be made in a record signed by an
authorized fiduciary. The bill requires the signed record to identify either directly, or by reference,
the first trust and the second trust or trusts and state the property of the first trust being
distributed to each second trust, and the property, if any, that remains in the first trust.
Decanting Power Of Fiduciary With Expanded Distributive Discretion (Section 11)
The bill defines several terms used in this section, including “noncontingent right,”
“presumptive remainder beneficiary,” “successor beneficiary,” and “vested interest.” [Note: Some
Kansas Legislative Research Department 4 2023 Summary of Legislation other terms used in this section are defined in Section 2 of the bill, including “current
beneficiary,” “expanded distributive discretion,” “power of appointment,” and “powerholder.”]
Under the provisions of the UTDA, an authorized fiduciary that has expanded distributive
discretion over the principal of a first trust for the benefit of one or more current beneficiaries
may exercise the decanting power over the principal of the first trust.
The bill specifies that in an exercise of the decanting power, a second trust could not:
●Include as a current beneficiary a person that is not a current beneficiary of the
first trust, except as otherwise provided in the bill;
●Include as a presumptive remainder beneficiary or successor beneficiary a
person that is not a current beneficiary, presumptive remainder beneficiary, or
successor beneficiary of the first trust, except as otherwise provided in the bill; or
●Reduce or eliminate a vested interest.
The bill further specifies that in an exercise of the decanting power, a second trust may
be created or administered under the law of any jurisdiction and such exercise could:
●Retain a power of appointment granted in the first trust;
●Omit a power of appointment granted in the first trust, other than a presently
exercisable general power of appointment;
●Create or modify a power of appointment if the powerholder is a current
beneficiary of the first trust and the authorized fiduciary has expanded distributive
discretion to distribute principal to the beneficiary; and
●Create or modify a power of appointment if the powerholder is a presumptive
remainder or successor beneficiary of the first trust, but the exercise of the power
may take effect only after the powerholder becomes, or would have become if
then living, a current beneficiary.
The bill specifies that a power of appointment may be general or nongeneral and that the
class of permissible appointees may be broader than or different from the beneficiaries of the
first trust. If an authorized fiduciary has expanded distributed discretion over part, but not all, of
the principal of a first trust, the bill allows the fiduciary to exercise the decanting power over that
part of principal over which the authorized fiduciary has expanded distributive discretion.
Decanting Power of Fiduciary With Limited Distributive Discretion (Section 12)
The bill defines “limited distributive discretion” to mean discretionary power of distribution
that is limited to an ascertainable standard or a reasonably definite standard.
Kansas Legislative Research Department 5 2023 Summary of Legislation The bill provides that an authorized fiduciary with limited distributive discretion over the
principal of the first trust for the benefit of one or more current beneficiaries may exercise the
decanting power over the principal of the first trust.
The bill allows a second trust to be created or administered under the law of any
jurisdiction. Under the bill, second trusts in the aggregate grant each beneficiary of the first trust
beneficial interests that are substantially similar to those of the beneficiary in the first trust.
The bill specifies that the power to make a distribution under a second trust for the
benefit of an individual beneficiary is substantially similar to a power under the first trust to make
a distribution directly to the beneficiary. The bill classifies a distribution as being for the benefit of
the beneficiary if the:
●Distribution is applied for the benefit of the beneficiary;
●The beneficiary is under a legal disability or the trustee reasonably believes the
beneficiary is incapacitated, and the distribution is made as permitted under the
Kansas Uniform Trust Code; or
●Distribution is made as permitted under the terms of the first-trust instrument and
the second-trust instrument for the beneficiary’s benefit.
If an authorized fiduciary has limited distributive discretion, the bill allows a fiduciary to
exercise the decanting power over the part of the principal that the authorized fiduciary has
limited distributive discretion.
Special-needs Trust (Section 13)
Definitions. The bill defines terms related to special-needs trusts, including “beneficiary
with a disability” and “governmental benefits.” The bill defines a “special-needs trust” to mean a
trust the trustee believes would not be considered a resource for the purposes of determining
whether a beneficiary with a disability is eligible for governmental benefits.
The bill also defines “special-needs fiduciary” to mean, with respect to a trust that has a
beneficiary with a disability, a trustee or other fiduciary, other than a settlor, that has discretion to
distribute:
●The principal of a first trust to one or more current beneficiaries; or
●The income of the first trust to one or more current beneficiaries, if no trustee or
fiduciary has discretion to distribute part or all of the principal of a first trust.
The term also encompasses a trustee or other fiduciary, other than a settlor, who is
required to distribute part or all of the income or principal of the first trust to one or more current
beneficiaries, if no trustee or fiduciary has discretion under the above provisions.
Kansas Legislative Research Department 6 2023 Summary of Legislation Decanting power. The bill allows a special-needs fiduciary to exercise the decanting
power over the principal of a first trust as if the fiduciary had the authority to distribute principal
to a beneficiary with a disability subject to expanded distributive discretion if:
●A second trust is a special-needs trust that benefits the beneficiary with a
disability; and
●The special-needs fiduciary determines that exercise of the decanting power
would not be inconsistent with a material purpose of the first trust.
Under the bill, the following rules apply to an exercise of the decanting power:
●Notwithstanding the bill’s provisions, the interest in the second trust of a
beneficiary with a disability may:
○Be a pooled trust as defined by federal Medicaid law for the benefit of the
beneficiary with a disability; or
○Contain payback provisions complying with the reimbursement
requirements of federal Medicaid law;
●Provisions prohibiting a second trust from reducing or eliminating a vested
interest shall not apply to the interests of the beneficiary with a disability; and
●Except as affected by any change to the interests of the beneficiary with a
disability, the second trusts in aggregate will be required to grant each other
beneficiary of the first trust beneficial interests in the second trusts that are
substantially similar to the beneficiary’s interests in the first trust.
Special Rules to Protect Charitable Interests (Section 14)
The bill defines the term “determinable charitable interest” to mean a charitable interest
that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified
event, or after the passage of a specified time, and is unconditional (as defined in the section) or
will be held solely for charitable purposes.
If the first trust contains a determinable charitable interest, the UTDA designates the
Attorney General as having the rights of a qualified beneficiary and allows them to represent
and bind the charitable interest.
If a first trust contains a charitable interest, the bill specifies the second trust or trusts
could not:
●Diminish the charitable interest;
●Diminish the interest of an identified charitable organization that holds the
charitable interest;
Kansas Legislative Research Department 7 2023 Summary of Legislation ●Alter any charitable purpose stated in the first-trust instrument; or
●Alter any condition or restriction related to the charitable interest.
The bill provides that if there are two or more second trusts, the second trusts would be
treated as one trust for purposes of determining whether the exercise of the decanting power
diminishes the charitable interest or diminishes the interest of an identified charitable
organization for purposes of the bill.
If a first trust contains a determinable charitable interest, the second trust or trusts that
include a charitable interest pursuant to the bill will be administered under the laws of Kansas
unless the:
●Attorney General consents in a signed record to the second trust or trusts being
administered under the law of another jurisdiction; or
●A court approves the exercise of the decanting power.
The UTDA does not limit the powers and duties of the Attorney General under the laws
of Kansas other than provided for in the UTDA.
Limitations on Decanting Power (Sections 15–20)
First-trust Instrument Restrictions (Section 15). The bill provides that an authorized
fiduciary may not exercise the decanting power, to the extent the first-trust instrument expressly
prohibits exercise of:
●The decanting power; or
●A power granted by state law to the fiduciary to distribute part or all of the
principal of the trust to another trust or to modify the trust.
The bill also states exercise of the decanting power is subject to any restriction in the
first-trust instrument that expressly applies to exercise of:
●The decanting power; or
●A power granted by state law to the fiduciary to distribute part or all of the
principal of the trust to another trust or to modify the trust.
The bill provides that a general prohibition of the amendment or revocation of a first
trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a
beneficiary’s interest shall not preclude exercise of the decanting power.
Kansas Legislative Research Department 8 2023 Summary of Legislation The bill allows an authorized fiduciary to exercise the decanting power under the UTDA
even if the first-trust instrument permits the authorized fiduciary or another person to modify the
first-trust instrument or to distribute part or all of the principal of the first trust to another trust.
Additionally, the bill provides that, to the extent the creation of a second-trust instrument
is permitted, if a first-trust instrument contains an express prohibition as described above, the
provision must be included in the second-trust instrument.
Fiduciary Compensation (Section 16). The bill states that, if a first-trust instrument
specifies an authorized fiduciary’s compensation, such person may not exercise the decanting
power to increase their compensation above the amount specified unless:
●All qualified beneficiaries of the second trust consent to the increase in a signed
record; or
●The increase is approved by the court.
The bill clarifies that a change in the authorized fiduciary’s compensation that is
incidental to other changes made by the exercise of the decanting power is not an increase in
the fiduciary’s compensation for purposes of the bill.
Second-trust Instrument—Fiduciary Liability (Section 17). The bill provides that
except as otherwise provided in the bill, a second-trust instrument shall not relieve an
authorized fiduciary from liability for a breach of trust to a greater extent than the first-trust
instrument.
Further, the bill states a second-trust instrument may provide for indemnification of an
authorized fiduciary of the first trust or another person acting in a fiduciary capacity under the
first trust for any liability or claim that would have been payable from the first trust if the
decanting power had not been exercised.
The bill specifies that a second-trust instrument will not reduce fiduciary liability in the
aggregate. However, a second-trust instrument may divide and reallocate fiduciary powers
among fiduciaries, including one or more trustees, distribution advisors, investment advisors,
trust protectors, or other persons, and relieve a fiduciary from liability for an act or failure to act
of another fiduciary as permitted by Kansas law other than the UTDA.
Modification of the Power to Remove or Replace a Fiduciary (Section 18). The bill
states an authorized fiduciary may not exercise the decanting power to modify a provision in a
first-trust instrument granting another person power to remove or replace the fiduciary unless
the:
●Person holding the power consents to such modification in a signed record and
the modification only applies to such person;
●Person holding the power and the qualified beneficiaries of the second trust
consent to the modification in a signed record and the modification grants a
substantially similar power to another person; or
Kansas Legislative Research Department 9 2023 Summary of Legislation ●A court approves the modification, and the modification grants a substantially
similar power to another person.
Limitations on Decanting Power with Respect to Tax Liability (Section 19). The bill
defines relevant terms used in this section and sets limitations for an exercise of the decanting
power with respect to transfers of property affecting tax liability.
Tax deductions. Under the UTDA, if a first trust contains property that qualified, or would
have qualified but for the UTDA for certain types of tax deductions as specified in the bill, a
second-trust instrument may not include or omit any terms that would have a consequence of
preventing the transfer from qualifying for the deduction, or reducing the amount of such
deduction.
S corporation stock. The bill specifies that, if the property of the first trust includes shares
of stock in an S corporation as defined in federal law and the first trust is, or but for the
provisions of the UTDA would be, a permitted shareholder, an authorized fiduciary may exercise
the decanting power with respect to any or all of such stock, but only if the second trust
receiving the stock is a permitted shareholder under federal law. If the first trust is a qualified
subchapter-S trust under federal law, the second trust may not include or omit a term that
prevents the second trust from qualifying as a qualified subchapter-S trust.
Generation-skipping transfer tax. If the trust contains property that qualified or would
have qualified but for the purposes of the UTDA for a zero inclusion ratio for purposes of the
federal generation-skipping transfer tax, the second trust may not include or omit a term that
prevents the second trust from qualifying for a zero inclusion ratio under federal law.
Qualified benefits property. If the first trust is directly or indirectly the beneficiary of
qualified benefits property, the second-trust instrument may not include or omit any term that, if
included in or omitted from the first-trust instrument, would have increased the minimum
distributions required under federal law, including any applicable regulations or similar
requirements. If an attempted exercise of the decanting power violates such, the trustee shall be
deemed to have held such property and any reinvested distributions of the property as a
separate share from the date of the exercise of the power applies to such share.
Grantor trust. If the first trust qualifies as a grantor trust under federal law, the second
trust may not include or omit a term that, if included in or omitted from the first-trust instrument,
would have prevented the first trust from qualifying under federal law.
Tax benefit. The bill defines the term “tax benefit” to mean a federal or state tax
deduction, exemption, exclusion, or other benefit not discussed by the UTDA, except for a
benefit arising from being a grantor trust.
The bill specifies a second-trust instrument may not include or omit a term that, if
included in or omitted from the first-trust instrument, would have prevented qualification for a tax
benefit if the:
●First-trust instrument expressly indicates an intent to qualify for the benefit or the
first-trust instrument clearly is designed to enable the first trust to qualify for the
benefit; and
Kansas Legislative Research Department 10 2023 Summary of Legislation ●Transfer of property held by the first trust or the first trust qualified, or but for the
UTDA would have qualified for the tax benefit.
The bill further specifies that, subject to the S-corporation provisions, except as
otherwise provided, the second trust may be a nongrantor trust, even if the first trust is a grantor
trust.
Objection by a settlor. The bill specifies that an authorized fiduciary may not exercise the
decanting power if a settlor objects in a signed record delivered to the fiduciary within the notice
period and:
●The first trust and a second trust are both grantor trusts, in whole or in part, the
first trust grants the settlor or another person the power to cause the first trust to
cease to be a grantor trust, and the second trust does not grant an equivalent
power to the settlor or other person; or
●The first trust is a nongrantor trust and a second trust is a grantor trust, in whole
or in part, with respect to the settlor, unless the:
○Settlor has the power at all times to cause the second trust to cease to be
a grantor trust; or
○First-trust instrument contains a provision granting the settlor or another
person a power that would cause the first trust to cease to be a grantor
trust and the second-trust instrument contains such provision.
Trust Duration (Section 20). The bill specifies that a second trust may have a duration
that is the same as or different from the duration of the first trust. But, to the extent the property
of a second trust is attributable to property of the first trust, such property shall be subject to any
rules governing maximum perpetuity, accumulation, or suspension of the power of alienation
that apply to the property of the first trust.
Discretionary Distribution Standard (Section 21)
The bill allows an authorized fiduciary to exercise the decanting power regardless of
whether, under the discretionary distribution standard of the first trust, the fiduciary could have
made or would have been compelled to make a discretionary distribution of principal at that
time.
Second-trust Instrument Noncompliance (Section 22)
Under the bill, if exercise of the decanting power would be effective under the UTDA
except the second trust does not comply in part with the UTDA, the decanting is effective. The
following rules will apply with respect to the principal of the second trust attributable to the
exercise of the power:
●A provision in the second-trust instrument that is not permitted under the UTDA is
void to the extent necessary to comply;
Kansas Legislative Research Department 11 2023 Summary of Legislation ●A provision required by the UTDA to be in the second-trust instrument, but is
absent, is deemed to be included to the extent necessary to comply.
The bill further specifies that, if a trustee or other fiduciary of a second trust determines
the above provisions apply to a prior exercise of the decanting power, the fiduciary must take
corrective action consistent with their fiduciary duties.
Animal Trusts (Section 23)
The bill defines “animal trust” to mean a trust or interest in a trust created to provide for
the care of one or more animals. “Protector” means a person appointed in an animal trust to
enforce the trust on behalf of the animal, or, if no such person is appointed in the trust, a person
appointed by the court for such purpose.
Under the bill, the decanting power may be exercised of an animal trust that has a
protector to the extent the trust could be decanted under the UTDA if each animal that benefits
from the trust were an individual, if such protector consents in a signed record.
The bill provides that a protector for an animal has the same rights under the UTDA as a
qualified beneficiary.
Notwithstanding other provisions of the UTDA, if a first trust is an animal trust, in an
exercise of the decanting power, the second trust is required to provide that trust property may
be applied only to its intended purpose for the time period the first benefited such animal.
Kansas Uniform Trust Code—Second Trusts (Section 24)
The bill provides that references in the Kansas Uniform Trust Code to a trust instrument
or terms of a trust also include a second-trust instrument and its related terms.
Second Trust Settlor (Section 25)
Under the bill, and for purposes other than the UTDA, a settlor of a first trust shall be
deemed to be the settlor of a second trust with respect to the portion of the principal of the first
trust that is subject to the decanting power.
The bill specifies that, in determining settlor intent with respect to the second trust, the
intent of the first trust settlor, the intent of the second trust settlor, and the authorized fiduciary
may be considered.
Later-discovered Property (Section 26)
Pursuant to the bill, if exercise of the decanting power was intended to transfer all the
principal of the first trust to one or more second trusts, later-discovered property belonging to
the first trust and property paid to or acquired by the first trust after exercise of the decanting
power shall be part of the trust estate of the second trust or trusts.
Kansas Legislative Research Department 12 2023 Summary of Legislation Under the bill, if exercise of the decanting power was intended to distribute less than all
the principal of the first trust to a second trust or trusts, such property as described above
remains part of the trust estate of the first trust.
The bill also specifies that an authorized fiduciary may provide in an exercise of the
decanting power, or by the terms of a second trust, for disposition of such property described
above.
Debts and Liabilities (Section 27)
Under the bill, a debt, liability, or other obligation enforceable against the property of a
first trust is enforceable to the same extent against property held by a second trust after
exercise of the decanting power.
Uniformity (Section 28)
The bill requires that in applying and construing the UTDA, consideration be given to the
need to promote uniformity of the law among states that enact such law.
Electronic Signatures (Section 29)
The bill states that the UTDA modifies, limits, or supersedes the electronic signatures in
the federal Global and National Commerce Act, but does not modify, limit, or supersede certain
other federal laws, or authorize electronic delivery of any of the notices described in that Act.
Severability (Section 30)
The bill provides that if any provision of the UTDA is held to be invalid, such invalidity
would not affect other provisions or applications of the UTDA that can be given effect without
such invalid provision or application.
Amendments Concerning the RAP (Sections 31-32)
[Note: The statutory rule against perpetuities (RAP) contained in the Kansas Probate
Code states that a nonvested property interest is invalid unless such property is certain to vest
or terminate no later than 21 years after the death of an individual who is alive when the interest
is created, or unless such interest either vests or terminates within 90 years after its creation.]
Modification or Termination of Noncharitable Irrevocable Trust by Consent (Section 31)
The bill amends a provision in the Kansas Uniform Trust Code governing modification or
termination of noncharitable irrevocable trusts by consent to specify application of the RAP shall
not be presumed to constitute a material purpose of the trust.
Kansas Legislative Research Department 13 2023 Summary of Legislation Exclusion from the Statutory RAP (Section 32)
The bill amends law in the statutory RAP governing exclusions to the RAP to add an
exclusion for trusts created or amended by will, inter vivos agreement, or exercise of power of
appointment on or after July 1, 2023, that meet the following criteria:
●The governing instrument has specified the RAP does not apply; and
●The trustee or other person to whom proper power has been granted or
delegated has power to sell, lease, or mortgage property for a period of time
beyond the period that would otherwise be required for an interest created under
the governing instrument to vest.
Kansas Income Tax Act Definitions (Section 33)
The bill expands the definition of “resident trust” in the Kansas Income Tax Act to include
the requirement that such resident trust has at least one income beneficiary who was a resident
of the state on the last day of the taxable year.
Kansas Legislative Research Department 14 2023 Summary of Legislation