59-16.1-12. Requirements for exercise of power to appoint - Notice.
604 words·~3 min read·
/nd/title-59/chapter-59-16-1-trust-decanting/59-16-1-12·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
1. The exercise of the power to appoint to an appointed trust under sections 59-16.1-04
and 59-16.1-05 must be evidenced by a written instrument that is signed, dated, and
acknowledged by the authorized trustee. The exercise of the power is effective sixty
days after the date of delivery of notice as specified in subsection 3, unless each
individual entitled to notice agrees in writing to an earlier effective date or waives in
writing the right to object to the exercise of the power.
2. An authorized trustee may exercise the power authorized by under sections
59-16.1-04 and 59-16.1-05 without the consent of the settlor or the person interested
in the invaded trust and without court approval, provided that the authorized trustee
may seek court approval for the exercise with notice to all persons interested in the
invaded trust.
3. A copy of the instrument exercising the power, a copy of the appointed trust, and a
copy of the invaded trust must be delivered to:
a. A person having the right, pursuant to the terms of the invaded trust, to remove or
replace the authorized trustee exercising the power under sections 59-16.1-04
and 59-16.1-05; and
b. A person interested in the invaded trust.
4. Notice of an exercise of the power must be given in the same manner as provided in
section 59-09-09.
5. The instrument exercising the power shall state whether the appointment is of all the
assets comprising the principal of the invaded trust or only a part of the assets
comprising the principal of the invaded trust and, if a part, the approximate percentage
of the value of the principal of the invaded trust that is subject to the appointment.
6. An individual entitled to notice may object to the authorized trustee's exercise of the
power under this section by serving a written notice of objection upon the authorized
trustee prior to the effective date of the exercise of the power. The failure to object
does not constitute consent.
7. If the authorized trustee does not receive a written objection to the proposed exercise
from an individual entitled to notice within the applicable period, the authorized trustee
is not liable to a person who received or was deemed to have received the required
notice in that person's personal, representative, or represented capacities for the
exercise of the power.
8. If the authorized trustee receives a written objection within the applicable period, either
the authorized trustee or an individual entitled to notice may petition the court to have
the proposed exercise of a power performed as proposed, performed with
modifications, or denied. In a proceeding, an individual objecting to the proposed
exercise has the burden of proof as to whether the authorized trustee's proposed
exercise should not be performed.
a. A person who has not objected is not estopped from opposing the proposed
exercise in the proceeding.
b. If the authorized trustee decides not to implement the proposed exercise, the
trustee shall notify all persons entitled to notice of the decision not to exercise the
power and the reason for the decision, and the authorized trustee's decision not
to implement the proposed exercise does not give rise to liability to an individual
interested in the invaded trust.
c. A person entitled to notice may petition the court to have the exercise of a power
performed and has the burden of proof as to whether it should be performed.
9. A copy of the instrument exercising the power and a copy of each of the invaded trust
and the appointed trust must be filed with records of the appointed trust and the
invaded trust.