§ 36C-8B-1 – Short title.

36C-8B-1. Short title. This Article shall be known and may be cited as the North Carolina Uniform Trust Decanting Act. (2017-121, s. 1.)

§ 36C-8B-10 – Formalities.

36C-8B-10. Formalities. An exercise of the decanting power shall be made in a written instrument signed by an authorized fiduciary. The signed written instrument shall identify, directly or by reference to the notice required by G.S. 36C-8B-7, the first trust and the second trust or trusts and state the property of the first trust being […]

§ 36C-8B-11 – Decanting power.

36C-8B-11. Decanting power. (a) The following definitions apply to this section: (1) Noncontingent right. – A right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. The term does not include a right held by a beneficiary if any person has discretion […]

§ 36C-8B-13 – Trust for beneficiary with disability.

36C-8B-13. Trust for beneficiary with disability. (a) The following definitions apply in this section: (1) Beneficiary with a disability. – A beneficiary of a first trust who the special-needs fiduciary believes may qualify, now or in the future, for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits, or is […]

§ 36C-8B-15 – Trust limitation on decanting.

36C-8B-15. Trust limitation on decanting. (a) An authorized fiduciary shall not exercise the decanting power to the extent the terms of the first trust expressly prohibit 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 […]

§ 36C-8B-16 – Change in compensation.

36C-8B-16. Change in compensation. (a) If a first trust specifies an authorized fiduciary’s compensation, the fiduciary shall not exercise the decanting power to increase the fiduciary’s compensation above the specified compensation unless either of the following conditions is satisfied: (1) All qualified beneficiaries of the second trust consent to the increase in a signed written […]

§ 36C-8B-17 – Relief from liability and indemnification.

36C-8B-17. Relief from liability and indemnification. (a) Except as otherwise provided in this section, a second trust shall not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first trust. (b) A second trust may provide for indemnification of an authorized fiduciary of the first trust or another […]

§ 36C-8B-18 – Removal or replacement of authorized fiduciary.

36C-8B-18. Removal or replacement of authorized fiduciary. An authorized fiduciary may not exercise the decanting power to modify a provision in a first trust granting another person power to remove or replace the fiduciary unless one or more of the following occur: (1) The person holding the power consents to the modification in a signed […]

§ 36C-8B-19 – Tax-related limitations.

36C-8B-19. Tax-related limitations. (a) The following definitions apply in this section: (1) Grantor trust. – A trust as to which a settlor of a first trust is considered the owner under sections 671 through 677 or section 679 of the Internal Revenue Code. (2) Nongrantor trust. – A trust that is not a grantor trust. […]

§ 36C-8B-2 – Definitions.

36C-8B-2. Definitions. The following definitions apply to this Article, unless the context clearly requires otherwise: (1) Authorized fiduciary. – 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. […]

§ 36C-8B-20 – Duration of second trust.

36C-8B-20. Duration of second trust. (a) Subject to subsection (b) of this section, a second trust may have a duration that is the same as or different from the duration of the first trust. (b) To the extent that property of a second trust is attributable to property of the first trust, the property of […]

§ 36C-8B-21 – Need to distribute not required.

36C-8B-21. Need to distribute not required. An authorized fiduciary may exercise the decanting power whether or not under the first trust’s discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of exercise. (2017-121, s. 1.)

§ 36C-8B-22 – Saving provision.

36C-8B-22. Saving provision. (a) If exercise of the decanting power would be effective under this Article except that the second trust in part does not comply with this Article, the exercise of the decanting power is effective and the following rules apply with respect to the principal of the second trust attributable to the exercise […]

§ 36C-8B-24 – Terms of second trust.

36C-8B-24. Terms of second trust. A reference in this Chapter to a trust instrument or terms of the trust includes a second trust and the terms of the second trust. (2017-121, s. 1.)

§ 36C-8B-25 – Settlor.

36C-8B-25. Settlor. (a) For the purposes of the laws of this State other than this Article and subject to subsection (b) of this section, a settlor of a first trust shall be deemed to be the settlor of the second trust with respect to the portion of the principal of the first trust subject to […]

§ 36C-8B-26 – Later-discovered property.

36C-8B-26. Later-discovered property. (a) Except as otherwise provided in subsection (c) of this section, if exercise of the decanting power was intended to distribute 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 […]

§ 36C-8B-3 – Scope.

36C-8B-3. Scope. (a) Except as otherwise provided in this section, this Article applies to an express trust that is irrevocable or revocable by the settlor only with the consent of the trustee or a person holding an adverse interest. (b) This Article shall not apply to a trust held solely for charitable purposes as described […]

§ 36C-8B-4 – Fiduciary duty.

36C-8B-4. Fiduciary duty. (a) In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust. (b) This Article does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the […]

§ 36C-8B-5 – Application; governing law.

36C-8B-5. Application; governing law. This Article shall apply to a trust that meets any of the following criteria: (1) The trust has its principal place of administration in this State, including a trust that has had its principal place of administration changed to this State. (2) The trust provides by its trust instrument that it […]

§ 36C-8B-6 – Reasonable reliance.

36C-8B-6. Reasonable reliance. A trustee or other person that reasonably relies on the validity of the exercise of a decanting power under this Article, law of this State other than this Article, or the exercise of a similar power under the law of this State or another jurisdiction shall not be liable to any person […]