Modifies provisions relating to trusts

Additionally, upon the filing of any petition, any trust instrument, briefs, and the entire court record and all orders thereon shall be sealed upon filing and may not be made a part of the public record of the proceeding, but are available to the court, the trustor, any fiduciary, any enforcer, any beneficiary, their attorneys, and such other interested persons as the court may order upon a showing of need.

Currently, for trust decanting, to the extent that property of the second trust is attributable to property of the first trust, the property of the second trust is subject to any rules governing maximum perpetuity which apply to property of the first trust. This act additionally provides that the perpetuities period and any other time limitation on the vesting of an interest applicable to the first trust shall apply to property of the second trust as if the second trust had been created on the date the first trust was created.

Furthermore, this act repeals and replaces certain provisions of current law regarding directed trusts. This act provides that a trust instrument may provide for one or more persons, who is not then serving as a trustee, the settlor, or a beneficiary, to be given any powers, rights, privileges, benefits, immunities, or authorities over the trust that is available to a trustee under the laws of this state or under the trust instrument which are expressly granted in the trust instrument. Such person shall be identified as a trust protector or trust advisor. The express powers that may be granted and exercised, in the best interests of the trust, in the sole and absolute discretion of the trust protector, and are binding on all other persons include, in addition to ones provided in current law, the following: (1) Remove and appoint a trustee, a fiduciary, trust advisor, or an investment or distribution committee member, or appoint a successor trustee or trust protector; (2) Modify or amend the trust instrument to: 1. Take advantage of laws governing restraints on alienation, distribution of trust property, or the administration of the trust; 2. Change the terms of any power of appointment granted by the trust, except a modification or amendment may not grant a beneficial interest to any individual or class of individuals not specifically provided for under the trust instrument; 3. Increase or decrease the interests of the beneficiaries of the trust; (3) Veto or direct trust distributions; (4) Interpret trust terms at the request of the trustee; (5) Advise the trustee on beneficiary matters; or (6) Add to the trust any individual beneficiaries or charitable beneficiaries from a class of individuals or charities identified in the trust instrument; (7) Provide other powers and discretions as are expressly granted to the trust protector in the trust instrument.

The trust protector or trust advisor shall have no greater liability to any person than a trustee holding or benefitting from the rights, powers, privileges, benefits, immunities, or authority provided or allowed under the trust instrument to such trust advisor or trust protector unless the trust instrument expressly provides otherwise.

A trust protector or trust advisor, by accepting appointment to serve as a trust protector or trust advisor, of a trust having its principal place of administration in this state submits personally to the jurisdiction of the courts of this state, regardless of whether the investment advisory agreements or other related agreements provide otherwise. The trust protector or trust advisor may be made a party to any action or proceeding if issues relate to his or her decisions or actions.

Except as otherwise provided in the trust instrument, a fiduciary excluded from exercising certain powers under the instrument shall not be liable, either individually or as a fiduciary, for any loss resulting from: (1) Any act taken or omitted as a result of the written direction of the trust protector or trust advisor appointed under the instrument; (2) A failure to take any action proposed by an excluded fiduciary, which requires prior authorization of the trust advisor, if that excluded fiduciary timely sought but failed to obtain the authorization; (3) Any action or inaction, except for gross negligence or willful misconduct, when an excluded fiduciary is required to assume the role of trust protector or trust advisor; (4) Reliance upon any trust advisor for valuation of trust assets; (5) Any tax filing made or tax position taken based on the recommendations or instructions received from the tax trust advisor or from a tax preparer or professional used by the excluded fiduciary at the direction of the grantor, the tax trust advisor, or another trust fiduciary.

Such excluded fiduciaries shall also be relieved from any obligation to independently value trust assets, review or evaluate any direction from a distribution trust advisor, perform investment or suitability reviews, inquiries, or investigations, and make recommendations or evaluations with respect to any investments to the extent the trust advisor had authority to direct the acquisition, disposition, or retention of the investment. Additionally, the excluded fiduciary shall not have the duty to communicate with or warn or apprise any beneficiary or third-party concerning instances in which the excluded fiduciary would or might have exercised the excluded fiduciary's own discretion in a manner different from the manner directed by the trust advisor or trust protector.

Absent contrary provisions in the trust instrument, certain communications or actions of the excluded fiduciary do not constitute an undertaking by the excluded fiduciary to monitor, participate, or otherwise take any fiduciary responsibility for actions within the trust protector or trust advisor's authority. In an action against an excluded fiduciary, the burden of proof of clear and convincing evidence is on the person seeking to hold the excluded fiduciary liable.

If one or more trust advisors and tax trust advisors are given authority by the terms of a trust instrument to direct, consent to, or disapprove a fiduciary's investment, distribution, or tax decisions, or proposed investment, distribution, or tax decisions, such trust advisors and tax trust advisors are considered to be fiduciaries when exercising such authority. Furthermore, for investment, distribution, or tax decisions, so long as there is at least one fiduciary exercising the authority related to such trust advisor, the trust instrument may provide that such other trust advisors acting pursuant to this act are not acting in a fiduciary capacity.

Finally, this act provides the powers and discretions of an investment trust advisor, distribution trust advisor, family advisor, and tax trust advisor. KATIE O'BRIEN