2016 New Hampshire Revised Statutes
Title LVI - PROBATE COURTS AND DECEDENTS' ESTATES
Chapter 564-D - QUALIFIED DISPOSITIONS IN TRUST ACT
Section 564-D:2 - Trust Instrument.

    564-D:2 Trust Instrument. –
    I. For the purposes of this chapter, a trust instrument is a trust instrument, within the meaning of RSA 564-B:1-103(20), that meets the following requirements:
       (a) The trust instrument appoints a qualified trustee for the property that is the subject of a disposition;
       (b) The trust instrument expressly provides that this state's laws govern the validity, construction, and administration of the trust;
       (c) The trust instrument is irrevocable; and
       (d) The trust instrument contains a spendthrift provision within the meaning of RSA 564-B:1-103(17).
    II. For purposes of subparagraph I(c), a trust instrument is revocable only to the extent that (1) the transferor can revoke the trust without the consent of the qualified trustee or any person holding an adverse interest and, upon the trust's revocation, the transferor would be a distributee of trust property or (2) the transferor can appoint the trust property, without the consent of the qualified trustee or any person holding an adverse interest, to any one or more of the transferor, the transferor's creditors, the transferor's estate, or the creditors of the transferor's estate.
    III. Except as provided in paragraph II, a trust instrument is irrevocable regardless of whether the transferor retained any right, power, or interest, including, without limitation, the following rights, powers, and interests:
       (a) A transferor's power to veto a distribution from the trust;
       (b) A power of appointment;
       (c) The transferor's potential or actual receipt or use of income or principal, including, without limitation, by reason of (i) a right to income or principal, (ii) a right to receive an annual amount equal to a percentage, as set forth in the trust instrument, of the initial value of the trust property or the value of the trust property as determined from time to time, (iii) a qualified trustee's exercise of its discretion to distribute income or principal, whether or not subject to a standard, or (iv) a qualified trustee acting in accordance with the direction of a trust advisor described in RSA 564-D:4;
       (d) The transferor's potential or actual receipt of income or principal from a charitable remainder annuity trust within the meaning of section 664(d)(1) of the Internal Revenue Code or a charitable remainder unitrust within the meaning of section 664(d)(2) of the Internal Revenue Code;
       (e) The transferor's right to release all or any part of the transferor's retained interest in a charitable remainder unitrust or charitable remainder annuity trust in favor of one or more charitable organizations that have an interest in that trust;
       (f) The transferor's potential or actual use of real property held under a personal residence trust as described in section 2702(a)(3)(A)(ii) of the Internal Revenue Code;
       (g) The transferor's potential or actual receipt or use of a qualified interest within the meaning of section 2702(b) of the Internal Revenue Code;
       (h) The transferor's potential or actual receipt of income or principal to pay income taxes on the trust's income, as determined for purposes of those taxes, to the extent that the trust instrument expressly provides that (i) the trustee must pay those amounts to the transferor or the taxing authority, (ii) the qualified trustee has the discretion to pay those amounts to the transferor or the taxing authority, or (iii) a trust advisor or trust protector has the power to direct the qualified trustee to pay those amounts to the transferor or the taxing authority;
       (i) The transferor's right to remove a trustee, trust advisor, or trust protector;
       (j) The transferor's right to appoint an additional or successor trustee, trust advisor, or trust protector if, with respect to the transferor, the trustee, trust advisor, or trust protector is not related or subordinate party within the meaning of section 672(c) of the Internal Revenue Code; and
       (k) After the transferor's death, a qualified trustee may or must pay all or any part of the transferor's debts outstanding at the time of the transferor's death, the expenses of administering the transferor's estate, or any estate or inheritance tax imposed on or with respect to the transferor's estate.
    IV. A disposition by a trustee who is not a qualified trustee to a qualified trustee will not fail to qualify a qualified disposition solely because the trust instrument fails to meet the requirements of subparagraph I(b).
    V. A spendthrift provision within the meaning of RSA 564-B:1-103(17) is a restriction on the transfer of the transferor's beneficial interest in the trust that is enforceable under applicable nonbankruptcy law, within the meaning of 11 U.S.C. section 541(c)(2).

Source. 2008, 374:27, eff. Sept. 9, 2008. 2014, 195:35, eff. July 1, 2014.