Title 18
Fiduciaries

Chapter 4
Powers of Fiduciaries

§ 18-4-31. Power to invade principal in trust.

(a) Unless the trust instrument expressly provides otherwise or unless the trust is a “Special Needs Trust” or “Supplemental Needs Trust” created in accordance with 42 United States Code section 1396p(d)(4)(A), a trustee who has authority under the terms of a trust to invade the principal of the trust, referred to in this section as the “first trust,” to make distributions to or for the benefit of one or more persons, may instead exercise such authority by appointing all or part of the principal of the trust subject to the power in favor of a trustee of another trust, referred to in this section as the “second trust,” for the current benefit of one or more of such persons under the same trust instrument or under a different trust instrument, provided:

(1) The beneficiaries of the second trust may include only beneficiaries of the first trust;

(2) The second trust may not reduce any fixed income, annuity or unitrust interest in the assets of the first trust; and

(3) If any contribution to the first trust qualified for a marital or charitable deduction for federal income, gift or estate tax purposes under the Internal Revenue Code of 1986, as amended 26 U.S.C. § 1, et seq., the second trust shall not contain any provisions which, if included in the first trust, would have prevented the first trust from qualifying for such a deduction or would have reduced the amount of such deduction.

(b) The exercise of a power to invade principal under subsection (a) shall be by an instrument in writing, signed and acknowledged by the trustee, and filed with the records of the first trust.

(c) The exercise of a power to invade principal under subsection (a) shall be considered the exercise of a power of appointment, other than a power to appoint to the trustee, the trustee’s creditors, the trustee’s estate, or the creditors of the trustee’s estate.

(d) The trustee shall notify all Qualified Beneficiaries (as hereinafter defined) of the first trust, in writing, of the manner in which the trustee intends to exercise the power, such notice to be at least sixty (60) days prior to the effective date of the trustee’s exercise of the trustee’s power to invade principal. A copy of the proposed instrument exercising the power shall satisfy the trustee’s notice obligation under this subsection. If all Qualified Beneficiaries waive the notice period by signed written instrument delivered to the trustee, the trustee’s power to invade principal shall be exercisable immediately. The trustee’s notice under this subsection shall not limit the right of any beneficiary to object to the exercise of the trustee’s power to invade principal except as provided in other applicable provisions of this title.

(e) “Qualified Beneficiary” means a living beneficiary who, on the date the beneficiary’s qualifications is determined:

(1) Is a distributee or permissible distribute of trust income or principal;

(2) Would be a distribute or permissible distribute of trust income or principal if the interests of the distributes described in subsection (a) terminated on that date without causing the trust to terminate; or

(3) Would be a distributee or permissible distribute of trust income or principal if the trust terminated in accordance with its terms on that date.

(f) The exercise of the power to invade principal under subsection (a) is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.

(g) Nothing in this section is intended to create or imply a duty to exercise a power to invade principal, and no inference of impropriety shall be made as a result of a trustee not exercising the power to invade principal conferred under subsection (a).

(h) The provisions of this section shall not be construed to abridge the right of any trustee who has a power of invasion to appoint property in further trust that arises under the terms of the first trust or under any other section of this title or under another provisions of law or under common law.