Section 564-A:3 Limitations on Certain Trustees Who are Beneficiaries.

NEW HAMPSHIRE STATUTES AND CODES

Section 564-A:3 Limitations on Certain Trustees Who are Beneficiaries.

I-III. [Repealed.]
   IV. (a) (1) Due to the inherent conflict of interest that exists between a trustee who is a beneficiary and other beneficiaries of the trust, unless the terms of a trust refer specifically to this paragraph and provide expressly to the contrary, any power conferred upon a trustee (other than the settlor of a revocable or amendable trust or a decedent's or settlor's spouse who is a trustee of a testamentary or inter vivos trust for which a marital deduction has been allowed) shall not include the following:
            (A) To make discretionary distributions of either principal or income to or for the benefit of such trustee, except to provide for that trustee's health, education, maintenance, or support as described under Internal Revenue Code sections 2041 and 2514.
            (B) To make discretionary allocations of receipts or expenses as between principal and income, unless such trustee acts in a fiduciary capacity whereby such trustee has no power to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of such trustee's fiduciary duties.
            (C) To make discretionary distributions of either principal or income to satisfy any legal support obligations of such trustee.
            (D) To exercise any other power, including the right to remove or to replace any trustee, so as to cause the powers enumerated under subparagraph (A)-(C) to be exercised on behalf of, or for the benefit of, a beneficiary who is also a trustee.
         (2) Any of the powers described in subparagraph (1) that are conferred upon 2 or more trustees may be exercised by the trustees who are not so disqualified. If there is no trustee qualified to exercise such power, any party in interest, as defined in subparagraph (c), may apply to a court of competent jurisdiction to appoint an independent trustee and such power may be exercised by the independent trustee appointed by the court.
      (b) (1) This paragraph applies to:
            (A) Any trust executed after the effective date of this paragraph, unless the terms of the trust refer specifically to this subparagraph and provide expressly to the contrary;
            (B) Any testamentary trust created under a will executed after the effective date of this paragraph, unless the terms of the trust refer specifically to this subparagraph and provide expressly to the contrary; and
            (C) Any trust created under a document executed on or before the effective date of this paragraph, unless:
               (i) If the trust is revocable or amendable, the settlor revokes or amends the trust at any time to provide otherwise; or
               (ii) If the trust is irrevocable, all parties in interest, as defined in subparagraph (c), elect affirmatively, in the manner prescribed in subparagraph (d), not to be subject to this paragraph. Such election must be made on or before the later of 3 years after the effective date of this paragraph, or 3 years after the date on which the trust becomes irrevocable.
         (2) The provisions of this subparagraph neither create a new cause of action nor impair any existing cause of action which, in either case, relates to any power prescribed by subparagraph (a) that was exercised before the effective date of this paragraph.
      (c) For the purpose of this paragraph:
         (1) If the trust is revocable or amendable and the settlor is not incapacitated, the party in interest is the settlor.
         (2) If the trust is revocable or amendable and the settlor is incapacitated, the party in interest is the settlor's legal representative under applicable law or the settlor's agent under a durable power of attorney that is sufficient to grant such authority.
         (3) If the trust is not revocable or amendable, the parties in interest are:
            (A) Each trustee then serving;
            (B) Each income beneficiary then in existence or if any such beneficiary has not attained majority or is otherwise incapacitated, the beneficiary's legal representative under applicable law or the beneficiary's agent under a durable power of attorney that is sufficient to grant such authority; and
            (C) Each remainder beneficiary then in existence or, if any such remainder beneficiary has not attained majority or is otherwise incapacitated, the beneficiary's legal representative under applicable law or the beneficiary's agent under a durable power of attorney that is sufficient to grant such authority.
      (d) The affirmative election required under subparagraph (b) shall be made:
         (1) If the settlor is not incapacitated and the trust is revocable or amendable, through a revocation of or an amendment to the trust;
         (2) If the settlor is incapacitated and the trust is revocable or amendable, through a written declaration executed in the manner prescribed for the recordation of deeds and delivered to the trustee; or
         (3) If the trust is not revocable or amendable, through a written declaration executed in the manner prescribed for the recordation of deeds and delivered to the trustee.
      (e) A person who has the right to remove or to replace a trustee does not possess, nor may that person be deemed to possess by virtue of having that right, the powers of a trustee who is subject to removal or replacement.