2018 California Code
Probate Code - PROB
DIVISION 9 - TRUST LAW
PART 9 - Uniform Trust Decanting Act
For purposes of this part:
(a) “Appointive property” means the property or property interest subject to a power of appointment.
(b) “Ascertainable standard” means a standard relating to an individual’s health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or Section 2514(c)(1) of the Internal Revenue Code (26 U.S.C. Secs. 2041(b)(1)(A), 2514(c)(1)) and any applicable regulations.
(c) “Authorized fiduciary” means any of the following:
(1) 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.
(2) A special fiduciary appointed under Section 19509.
(3) A special-needs fiduciary under Section 19513.
(d) “Beneficiary” means a person that meets one of the following conditions:
(1) Has a present or future, vested or contingent, beneficial interest in a trust.
(2) Holds a power of appointment over trust property.
(3) Is an identified charitable organization that will or may receive distributions under the terms of the trust.
(e) “Charitable interest” means an interest in a trust that meets one of the following conditions:
(1) Is held by an identified charitable organization and makes the organization a qualified beneficiary.
(2) Benefits only charitable organizations and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.
(3) Is held solely for charitable purposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.
(f) “Charitable organization” means either of the following:
(1) A person, other than an individual, organized and operated exclusively for charitable purposes.
(2) A government or governmental subdivision, agency, or instrumentality, to the extent it holds funds exclusively for a charitable purpose.
(g) “Charitable purpose” means the relief of poverty, the advancement of education or religion, the promotion of health, a municipal or other governmental purpose, or another purpose the achievement of which is beneficial to the community.
(h) “Court” means the court in this state having jurisdiction in matters relating to trusts.
(i) “Current beneficiary” means a beneficiary that on the date the beneficiary’s qualification is determined is a distributee or permissible distributee of trust income or principal. The term includes the holder of a presently exercisable general power of appointment but does not include a person that is a beneficiary only because the person holds any other power of appointment.
(j) “Decanting power” or “the decanting power” means the power of an authorized fiduciary under this part to distribute property of a first trust to one or more second trusts or to modify the terms of the first trust.
(k) “Expanded distributive discretion” means a discretionary power of distribution that is not limited to an ascertainable standard or a reasonably definite standard.
(l) “First trust” means a trust over which an authorized fiduciary may exercise the decanting power.
(m) “First trust instrument” means the trust instrument for a first trust.
(n) “General power of appointment” means a power of appointment exercisable in favor of a powerholder, the powerholder’s estate, a creditor of the powerholder, or a creditor of the powerholder’s estate.
(o) “Jurisdiction,” with respect to a geographic area, includes a state or country.
(p) “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(q) “Power of appointment” means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in, or another power of appointment over, the appointive property. The term does not include a power of attorney.
(r) “Powerholder” means a person in which a donor creates a power of appointment.
(s) “Presently exercisable power of appointment” means a power of appointment exercisable by the powerholder at the relevant time.
(1) The term includes a power of appointment exercisable only after the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after one of the following, respectively:
(A) The occurrence of the specified event.
(B) The satisfaction of the ascertainable standard.
(C) The passage of the specified time.
(2) The term does not include a power exercisable only at the powerholder’s death.
(t) “Qualified beneficiary” means a beneficiary that, on the date the beneficiary’s qualification is determined, satisfies one of the following conditions:
(1) Is a distributee or permissible distributee of trust income or principal.
(2) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (1) terminated on that date without causing the trust to terminate.
(3) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
(u) “Reasonably definite standard” means a clearly measurable standard under which a holder of a power of distribution is legally accountable within the meaning of Section 674(b)(5)(A) of the Internal Revenue Code (26 U.S.C. Sec. 674(b)(5)(A)) and any applicable regulations.
(v) “Second trust” means either of the following:
(1) A first trust after modification under this part.
(2) A trust to which a distribution of property from a first trust is or may be made under this part.
(w) “Second trust instrument” means the trust instrument for a second trust.
(x) “Settlor,” except as otherwise provided in Section 19525, means 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 is 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.
(y) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(z) “Terms of the trust” means the manifestation of the settlor’s intent regarding a trust’s provisions as expressed in the trust instrument, as may be established by other evidence that would be admissible in a judicial proceeding, or as may be established by court order or nonjudicial settlement agreement.
(aa) “Trust instrument” means a trust 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.
(Added by Stats. 2018, Ch. 407, Sec. 1. (SB 909) Effective January 1, 2019.)