§44D-8B-1. Short Title
This article may be cited as the West Virginia Uniform Trust Decanting Act.
§44D-8B-10. Formalities
An exercise of the decanting power must be made in a record signed by an authorized fiduciary. The signed record must, directly or by reference to the notice required by 44D-8B-7 of this code, identify the first trust and the second trust or trusts and state the property of the first trust being distributed to […]
§44D-8B-11. Decanting Power Under Expanded Distributive Discretion
(a) In this section: (1) “Noncontingent right” means 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 to distribute property subject to the right […]
§44D-8B-12. Decanting Power Under Limited Distributive Discretion
(a) In this section, “limited distributive discretion” means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard. (b) An authorized fiduciary that has limited distributive discretion over the principal of the first trust for benefit of one or more current beneficiaries may exercise the decanting power over […]
§44D-8B-13. Trust for Beneficiary With Disability
(a) In this section: (1) “Beneficiary with a disability” means a beneficiary of a first trust who the special-needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been adjudicated a protected person.
§44D-8B-14. Protection of Charitable Interest
(a) In this section: (1) “Determinable charitable interest” means 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 which is unconditional or will be held solely for charitable purposes.
§44D-8B-15. Trust Limitation on Decanting
(a) An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of: (1) The decanting power; or
§44D-8B-16. Change in Compensation
(a) If a first-trust instrument specifies an authorized fiduciarys compensation, the fiduciary may not exercise the decanting power to increase the fiduciarys compensation above the specified compensation unless: (1) All qualified beneficiaries of the second trust consent to the increase in a signed record; or
§44D-8B-17. Relief From Liability and Indemnification
(a) Except as otherwise provided in this section, a second-trust instrument may not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first-trust instrument. (b) A second-trust instrument may provide for indemnification of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity […]
§44D-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 instrument granting another person power to remove or replace the fiduciary unless: (1) The person holding the power consents to the modification in a signed record and the modification applies only to the person;
§44D-8B-19. Tax-Related Limitations
(a) In this section: (1) “Grantor trust” means a trust as to which a grantor of a first trust is considered the owner under 26 U.S.C. 671-677 or 26 U.S.C. 679.
§44D-8B-2. Definitions
In addition to the definitions contained in 44D-1-103 of this code which apply to this article: (1) “Appointive property” means the property or property interest subject to a power of appointment.
§44D-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 the second trust is subject […]
§44D-8B-21. Need to Distribute Not Required
An authorized fiduciary may exercise the decanting power whether or not under the first trusts discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of the exercise.
§44D-8B-22. Saving Provision
(a) If exercise of the decanting power would be effective under this article except that the second-trust instrument in part does not comply with this article, the exercise of the power is effective and the following rules apply with respect to the principal of the second trust attributable to the exercise of the power: (1) […]
§44D-8B-23. Trust for Care of Animal
(a) In this section: (1) “Animal trust” means a trust or an interest in a trust created to provide for the care of one or more animals.
§44D-8B-24. Terms of Second Trust
Any reference in this chapter to a trust instrument or terms of the trust includes a second-trust instrument and the terms of the second trust.
§44D-8B-25. Grantor
(a) For purposes of law of this state other than this article and subject to subsection (b) of this section, a grantor of a first trust is considered to be the grantor of the second trust with respect to the portion of the principal of the first trust subject to the exercise of the decanting […]
§44D-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 the exercise of […]
§44D-8B-27. Obligations
A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the second trust after exercise of the decanting power.