75-7-812 - Discretionary powers -- Tax savings. - Utah Statutes

75-7-812. Discretionary powers -- Tax savings.
(1) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust,including the use of such terms as "absolute," "sole," or "uncontrolled," the trustee shall exercisea discretionary power in good faith and in accordance with the terms and purposes of the trustand the interests of the beneficiaries.
(2) Subject to Subsection (4), and unless the terms of the trust expressly indicate that arule in this section does not apply:
(a) a person other than a settlor who is a beneficiary and trustee of a trust that confers onthe trustee a power to make discretionary distributions to or for the trustee's personal benefit mayexercise the power only in accordance with an ascertainable standard relating to the trustee'sindividual health, education, support, or maintenance within the meaning of Subsection2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, as in effect on May 1, 2004;and
(b) a trustee may not exercise a power to make discretionary distributions to satisfy alegal obligation of support that the trustee personally owes another person.
(3) A power whose exercise is limited or prohibited by Subsection (2) may be exercisedby a majority of the remaining trustees whose exercise of the power is not so limited orprohibited. If the power of all trustees is so limited or prohibited, the court may appoint a specialfiduciary with authority to exercise the power.
(4) Subsection (2) does not apply to:
(a) a power held by the settlor's spouse who is the trustee of a trust for which a maritaldeduction, as defined in Subsection 2056(b)(5) or 2523(e) of the Internal Revenue Code of 1986,as in effect on May 1, 2004, was previously allowed;
(b) any trust during any period that the trust may be revoked or amended by its settlor; or
(c) a trust if contributions to the trust qualify for the annual exclusion under Subsection2503(c) of the Internal Revenue Code of 1986, as in effect on May 1, 2004.

Enacted by Chapter 89, 2004 General Session