N.D. Cent. Code § 59-11-05 — ND Code / Title 59 / Chapter 59-11 / Section 59-11-05
59-11-05. (305) Appointment of representative
Status: in_force

59-11-05. (305) Appointment of representative

1. If the court determines that an interest is not represented under this chapter, or that

the otherwise available representation might be inadequate, the court may appoint a

representative to receive notice, give consent, and otherwise represent, bind, and act

on behalf of a minor, incapacitated or unborn individual, or a person whose identity or

location is unknown and not reasonably ascertainable. A representative may be

appointed to represent several persons or interests.

2. A representative may act on behalf of the individual represented with respect to any

matter arising under chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16,

59-17, 59-18, and 59-19, whether or not a judicial proceeding concerning the trust is

pending.

3. In making decisions, a representative may consider general benefit accruing to the

living members of the individual's family.
N.D. Cent. Code § 59-12-11 — ND Code / Title 59 / Chapter 59-12 / Section 59-12-11
59-12-11. (411) Modification or termination of noncharitable irrevocable trust by consent
Status: in_force

59-12-11. (411) Modification or termination of noncharitable irrevocable trust by

consent.

1. A noncharitable irrevocable trust may be terminated upon consent of all of the

beneficiaries if the court concludes that continuance of the trust is not necessary to

achieve any material purpose of the trust. A noncharitable irrevocable trust may be

modified upon consent of all of the beneficiaries if the court concludes that

modification is not inconsistent with a material purpose of the trust. An irrevocable trust

that is modified under this subsection continues to be irrevocable.

2. Upon termination of a trust under subsection 1, the trustee shall distribute the trust

property as agreed by the beneficiaries.

3. If not all of the beneficiaries consent to a proposed modification or termination of the

trust under subsection 1, the modification or termination may be approved by the court

if the court is satisfied that if all of the beneficiaries had consented, the trust could

have been modified or terminated under this section and the interests of a beneficiary

who does not consent will be adequately protected.
N.D. Cent. Code § 59-16-06 — ND Code / Title 59 / Chapter 59-16 / Section 59-16-06
59-16-06. (806) Trustee's skills
Status: in_force

59-16-06. (806) Trustee's skills

A trustee who has special skills or expertise, or is named trustee in reliance upon the

trustee's representation that the trustee has special skills or expertise, shall use those special

skills or expertise.
N.D. Cent. Code § 59-04.2-04 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-04
59-04.2-04. (201) Determination and distribution of net income
Status: in_force

59-04.2-04. (201) Determination and distribution of net income

After a decedent dies, in the case of an estate, or after an income interest in a trust ends,

the following rules apply:

1. A fiduciary of an estate or of a terminating income interest shall determine the amount

of net income and net principal receipts received from property specifically given to a

beneficiary under the rules in sections 59-04.2-06 through 59-04.2-29 which apply to

trustees and the rules in subsection 5. The fiduciary shall distribute the net income and

net principal receipts to the beneficiary who is to receive the specific property.

2. A fiduciary shall determine the remaining net income of a decedent's estate or a

terminating income interest under the rules in sections 59-04.2-06 through 59-04.2-29

which apply to trustees and by:

a. Including in net income all income from property used to discharge liabilities.

b. Paying from income or principal, in the fiduciary's discretion, fees of attorneys,

accountants, and fiduciaries; court costs and other expenses of administration;

and interest on death taxes, but the fiduciary may pay those expenses from

income of property passing to a trust for which the fiduciary claims an estate tax

marital or charitable deduction only to the extent that the payment of those

expenses from income will not cause the reduction or loss of the deduction.

c. Paying from principal all other disbursements made or incurred in connection with

the settlement of a decedent's estate or the winding up of a terminating income

interest, including debts, funeral expenses, disposition of remains, family

allowances, and death taxes and related penalties that are apportioned to the

estate or terminating income interest by the will, the terms of the trust, or

applicable law.

3. A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright

the interest or any other amount provided by the will, the terms of the trust, or

applicable law from net income determined under subsection 2 or from principal to the

extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount

outright from a trust after an income interest ends and no interest or other amount is

provided for by the terms of the trust or applicable law, the fiduciary shall distribute the

interest or other amount to which the beneficiary would be entitled under applicable

law if the pecuniary amount were required to be paid under a will.

4. A fiduciary shall distribute the net income remaining after distributions required by

subsection 3 in the manner described in section 59-04.2-05 to all other beneficiaries,

including a beneficiary who receives a pecuniary amount in trust, even if the

beneficiary holds an unqualified power to withdraw assets from the trust or other

presently exercisable general power of appointment over the trust.

5. A fiduciary may not reduce principal or income receipts from property described in

subsection 1 because of a payment described in section 59-04.2-24 or 59-04.2-25 to

the extent that the will, the terms of the trust, or applicable law requires the fiduciary to

make the payment from assets other than the property or to the extent that the

fiduciary recovers or expects to recover the payment from a third party. The net

income and principal receipts from the property are determined by including all of the

amounts the fiduciary receives or pays with respect to the property, whether those

amounts accrued or became due before, on, or after the date of a decedent's death or

an income interest's terminating event, and by making a reasonable provision for

amounts that the fiduciary believes the estate or terminating income interest may

become obligated to pay after the property is distributed.
N.D. Cent. Code § 59-22-03 — ND Code / Title 59 / Chapter 59-22 / Section 59-22-03
59-22-03. (201) Scope
Status: in_force

59-22-03. (201) Scope

1. Except as provided in subsection 2, this chapter applies to an electronic

nontestamentary estate planning document and an electronic signature on a

nontestamentary estate planning document.

2. This chapter does not apply to a nontestamentary estate planning document if the

document precludes use of an electronic record or electronic signature.

3. This chapter does not affect the validity of an electronic record or electronic signature

that is valid under chapter 30.1-37 or 9-16.
N.D. Cent. Code § 59-04.2-10 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-10
59-04.2-10. (402) Distribution from trust or estate
Status: in_force

59-04.2-10. (402) Distribution from trust or estate

A trustee shall allocate to income an amount received as a distribution of income from a

trust or an estate in which the trust has an interest other than a purchased interest and shall

allocate to principal an amount received as a distribution of principal from such a trust or estate.

If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor

transfers an interest in such a trust to a trustee, section 59-04.2-09 or 59-04.2-23 applies to a

receipt from the trust.
N.D. Cent. Code § 59-21-08 — ND Code / Title 59 / Chapter 59-21 / Section 59-21-08
59-21-08. Relation to Electronic Signatures in Global and National Commerce Act
Status: in_force

59-21-08. Relation to Electronic Signatures in Global and National Commerce Act

This chapter modifies, limits, and supersedes the Electronic Signatures in Global and

National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede

15 U.S.C. 7001(a) or authorize electronic delivery of any of the notices described in 15 U.S.C.

7003(b).
N.D. Cent. Code § 59-04.2-11 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-11
59-04.2-11. (403) Business and other activities conducted by trustee
Status: in_force

59-04.2-11. (403) Business and other activities conducted by trustee

1. If a trustee who conducts a business or other activity determines that it is in the best

interest of all the beneficiaries to account separately for the business or activity instead

of accounting for it as part of the trust's general accounting records, the trustee may

maintain separate accounting records for its transactions, whether or not its assets are

segregated from other trust assets.

2. A trustee who accounts separately for a business or other activity may determine the

extent to which its net cash receipts must be retained for working capital, the

acquisition or replacement of fixed assets, and other reasonably foreseeable needs of

the business or activity, and the extent to which the remaining net cash receipts are

accounted for as principal or income in the trust's general accounting records. If a

trustee sells assets of the business or other activity, other than in the ordinary course

of the business or activity, the trustee shall account for the net amount received as

principal in the trust's general accounting records to the extent the trustee determines

that the amount received is no longer required in the conduct of the business.

3. Activities for which a trustee may maintain separate accounting records include retail,

manufacturing, service, and other traditional business activities; farming; raising and

selling livestock and other animals; management of rental properties; extraction of

minerals and other natural resources; timber operations; and activities to which section

59-04.2-22 applies.
N.D. Cent. Code § 59-10.1-01 — ND Code / Title 59 / Chapter 59-10.1 / Section 59-10.1-01
59-10.1-01. Declaratory judgment
Status: in_force

59-10.1-01. Declaratory judgment

A person seeking to challenge the validity of a trust instrument or amendment may institute

a proceeding under this chapter for a declaratory judgment of invalidity.
N.D. Cent. Code § 59-16.1-03 — ND Code / Title 59 / Chapter 59-16.1 / Section 59-16.1-03
59-16.1-03. Power of appointment
Status: in_force

59-16.1-03. Power of appointment

An exercise of a power of appointment is not void if the exercise is:

1. More extensive than was authorized, but is valid to the extent authorized by the

instrument creating its power; or

2. Less extensive than authorized by the instrument creating the power, unless the donor

has manifested a contrary intention.
N.D. Cent. Code § 59-21-07 — ND Code / Title 59 / Chapter 59-21 / Section 59-21-07
59-21-07. Application to existing institutional funds
Status: in_force

59-21-07. Application to existing institutional funds

This chapter applies to institutional funds existing on or established after April 22, 2009. As

applied to institutional funds existing on April 22, 2009, this chapter governs only decisions

made or actions taken on or after that date.
N.D. Cent. Code § 59-15-02 — ND Code / Title 59 / Chapter 59-15 / Section 59-15-02
59-15-02. (702) Trustee's bond
Status: in_force

59-15-02. (702) Trustee's bond

1. A trustee shall give bond to secure performance of the trustee's duties only if the court

finds that a bond is needed to protect the interests of the beneficiaries or is required by

the terms of the trust and the court has not dispensed with the requirement.

2. The court may specify the amount of a bond, its liabilities, and whether sureties are

necessary. The court may modify or terminate a bond at any time.

3. A bank or trust company qualified to act as a trustee in this state need not give bond,

even if required by the terms of the trust.
N.D. Cent. Code § 59-10.1-03 — ND Code / Title 59 / Chapter 59-10.1 / Section 59-10.1-03
59-10.1-03. Limitation of action
Status: in_force

59-10.1-03. Limitation of action

A proceeding under this chapter may not be commenced later than the earliest of the

following:

1. One hundred twenty days after the date the trustee notified the individual contesting

the trust of the trust's existence or amendment. The notice must include the trustee's

name and address and a copy of the trust instrument with amendments, if any, and

must inform the recipient of the time allowed under this section for initiating a

proceeding to contest the trust. A trustee may not have any liability under the

governing instrument, to a third party, for failure to provide a notice under this

subsection. Service of this notice is presumed to have been received upon delivery of

the notice to the last known address of the individual to whom the notice is addressed;

2. Three years after the settlor's death;

3. If the trust was revocable immediately before the settlor's death and the trust was

specifically referred to in the settlor's last will, then the time in which a petition for

review of a will could be filed under state law; or

4. The date an individual's right to contest was precluded by adjudication, consent, or

other limitation.
N.D. Cent. Code § 59-18-13 — ND Code / Title 59 / Chapter 59-18 / Section 59-18-13
59-18-13. (1013) Certification of trust
Status: in_force

59-18-13. (1013) Certification of trust

1. Unless otherwise required by chapter 59-09, 59-10, 59-11, 59-12, 59-13, 59-14, 59-15,

59-16, 59-17, 59-18, or 59-19, the trustee may furnish to the person a certification of

trust containing information that includes that the trust exists and the effective date of

the trust instrument, the name of the trust, if a name is given, the identity of each

settlor, the identity and address of the currently acting trustee, the applicable powers of

the trustee, which may make reference to the powers set forth in chapters 59-09,

59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and 59-19, the

revocability or irrevocability of the trust and the identity of any person holding a power

to revoke the trust, and the authority of cotrustees to sign or otherwise authenticate

and whether all or less than all are required in order to exercise powers of the trustee.

2. A certification of trust may be signed or otherwise authenticated by any trustee.

3. A certification of trust must state that the trust has not been revoked, modified, or

amended in any manner that would cause the representations contained in the

certification of trust to be incorrect.

4. A certification of trust need not contain the dispositive terms of a trust.

5. A recipient of a certification of trust may require the trustee to furnish copies of those

excerpts from the original trust instrument and later amendments which designate the

trustee and confer upon the trustee the power to act in the pending transaction.

6. A person who acts in reliance upon a certification of trust without knowledge that the

representations contained therein are incorrect is not liable to any person for so acting

and may assume without inquiry the existence of the facts contained in the

certification. Knowledge of the terms of the trust may not be inferred solely from the

fact that a copy of all or part of the trust instrument is held by the person relying upon

the certification.

7. A person who in good faith enters into a transaction in reliance upon a certification of

trust may enforce the transaction against the trust property as if the representations

contained in the certification were correct.

8. A person making a demand for the trust instrument in addition to a certification of trust

or excerpts is liable for damages if the court determines that the person did not act in

good faith in demanding the trust instrument.

9. This section does not limit the right of a person to obtain a copy of the trust instrument

in a judicial proceeding concerning the trust.
N.D. Cent. Code § 59-15-04 — ND Code / Title 59 / Chapter 59-15 / Section 59-15-04
59-15-04. (704) Vacancy in trusteeship - Appointment of successor
Status: in_force

59-15-04. (704) Vacancy in trusteeship - Appointment of successor

1. A vacancy in a trusteeship occurs if a person designated as trustee declines the

trusteeship, a person designated as trustee cannot be identified, cannot be located, or

does not exist, a trustee resigns, a trustee is disqualified or removed, a trustee dies, or

a guardian or conservator is appointed for an individual serving as trustee.

2. If one or more cotrustees remain in office, a vacancy in a trusteeship need not be

filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.

3. A vacancy in a trusteeship of a noncharitable trust which is required to be filled must

be filled in the following order of priority. First, the vacancy must be filled by a person

designated in the terms of the trust or appointed under the terms of the trust to act as

successor trustee. Second, the vacancy must be filled by a person appointed by

unanimous agreement of the qualified beneficiaries. Finally, the vacancy must be filled

by a person appointed by the court.

4. A vacancy in a trusteeship of a charitable trust which is required to be filled must be

filled in the following order of priority. First, the vacancy must be filled by a person

designated in the terms of the trust or appointed under the terms of the trust to act as

successor trustee. Second, the vacancy must be filled by a person selected by the

charitable organizations expressly designated to receive distributions under the terms

of the trust if the attorney general concurs in the selection. Finally, the vacancy must

be filled by a person appointed by the court.

5. Whether or not a vacancy in a trusteeship exists or is required to be filled, the court

may appoint an additional trustee or special fiduciary whenever the court considers the

appointment necessary for the administration of the trust.
N.D. Cent. Code § 59-16-14 — ND Code / Title 59 / Chapter 59-16 / Section 59-16-14
59-16-14. (814) Discretionary powers - Tax savings
Status: in_force

59-16-14. (814) 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

exercise a discretionary power in good faith and in accordance with the purposes of

the trust.

2. Subject to subsection 4, and unless the terms of the trust expressly indicate that a rule

in this subsection does not apply:

a. A person other than a settlor who is a beneficiary and trustee of a trust that

confers on the trustee a power to make discretionary distributions to or for the

trustee's personal benefit may exercise the power only in accordance with an

ascertainable standard; and

b. A trustee may not exercise a power to make discretionary distributions to satisfy a

legal obligation of support that the trustee personally owes another person.

3. A power whose exercise is limited or prohibited by subsection 2 may be exercised by a

majority of the remaining trustees whose exercise of the power is not so limited or

prohibited. If the power of all trustees is so limited or prohibited, the court may appoint

a special fiduciary 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

marital deduction, as defined in section 2056(b)(5) or 2523(e) of the Internal

Revenue Code 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 section

2503(c) of the Internal Revenue Code.
N.D. Cent. Code § 59-16.1-12 — ND Code / Title 59 / Chapter 59-16.1 / Section 59-16.1-12
59-16.1-12. Requirements for exercise of power to appoint - Notice
Status: in_force

59-16.1-12. Requirements for exercise of power to appoint - Notice

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.
N.D. Cent. Code § 59-16.1-10 — ND Code / Title 59 / Chapter 59-16.1 / Section 59-16.1-10
59-16.1-10. Fiduciary duty
Status: in_force

59-16.1-10. Fiduciary duty

An authorized trustee exercising the power under this chapter has a fiduciary duty to

exercise the power in the best interests of one or more proper objects of the exercise of the

power and as a prudent person would exercise the power under the prevailing circumstances.
N.D. Cent. Code § 59-16.3-01 — ND Code / Title 59 / Chapter 59-16.3 / Section 59-16.3-01
59-16.3-01. Definitions
Status: in_force

59-16.3-01. Definitions

For purposes of this chapter, unless the context otherwise requires:

1. "Disinterested person" means a person who is not a related or subordinate party, as

defined in section 672(c) of the Internal Revenue Code [26 U.S.C. 1, et seq.], with

respect to the person then acting as trustee of the trust and excludes the settlor of the

trust and any interested trustee.

2. "Income trust" means a trust, created by either an inter vivos or a testamentary

instrument, which directs or permits the trustee to distribute the net income of the trust

to one or more persons, either in fixed proportions, or in amounts, or proportions

determined by the trustee. However, a trust that otherwise is an income trust may not

qualify if it is subject to taxation under section 2001 or section 2501 of the Internal

Revenue Code, until the expiration of the period for filing the return therefor.

3. "Interested distributee" means a person to whom distributions of income or principal

can currently be made who has the power to remove the existing trustee and

designate as successor a person who may be a related or subordinate party, as

defined in section 672(c) of the Internal Revenue Code, with respect to such

distributee.

4. "Interested trustee" means:

a. Any individual trustee to whom the net income or principal of the trust can

currently be distributed or would be distributed if the trust were then to terminate

and be distributed; and

b. An individual trustee whose legal obligation to support a beneficiary may be

satisfied by distributions of income and principal of the trust.

5. "Total return unitrust" means an income trust that has been converted under and

meets the provisions of this chapter.

6. "Trustee" means all persons acting as trustee of the trust, except where expressly

noted otherwise, whether acting in their discretion, or on the direction of one or more

persons acting in a fiduciary capacity.

7. "Settlor" means an individual who created an inter vivos or a testamentary trust.

8. "Unitrust" means a trust, the terms of which require or permit distribution of a unitrust

amount, without regard to whether the trust has been converted to a unitrust in

accordance with this chapter, or whether the trust is established by express terms of

the governing instrument.

9. "Unitrust amount" means an amount equal to a percentage of a unitrust's assets that

may, or are required, to be distributed to one or more beneficiaries annually in

accordance with the terms of the unitrust. The unitrust amount may be determined by

reference to the net fair market value of the unitrust's assets as of a particular date

each year, or as an average determined on a multiple year basis.

10. "Current valuation year" means the accounting period of the trust for which the unitrust

amount is being determined.

11. "Prior valuation year" means each of the two accounting periods of the trust

immediately preceding the current valuation year.
N.D. Cent. Code § 59-16.1-02 — ND Code / Title 59 / Chapter 59-16.1 / Section 59-16.1-02
59-16.1-02. Definitions
Status: in_force

59-16.1-02. Definitions

For purposes of this chapter, unless the context otherwise requires:

1. "Appointed trust" means an irrevocable trust which receives principal from an invaded

trust under this chapter, including a trust created by the settlor of the invaded trust,

under the terms of the invaded trust or any other trust instrument, or by the trustees,

acting in that capacity, of the invaded trust. For purposes of creating another trust, a

requirement that a trust instrument be signed by the settlor is deemed satisfied by the

signature of the trustee of the appointed trust.

2. "Authorized trustee" means, as to an invaded trust, a trustee with authority to pay trust

principal to or for one or more current beneficiaries other than a trustee who is the

settlor, or a beneficiary to whom income or principal must be paid currently or in the

future, or who is or will become eligible to receive a distribution of income or principal

in the discretion of the trustee, other than by the exercise of a power of appointment

held in a nonfiduciary capacity.

3. "Current beneficiary" or "beneficiaries" means individual, or as to a class, an individual

who is or will become members of that class, to whom the trustees may distribute

principal at the time of the exercise of the power, provided that the interest of a

beneficiary to whom income, but not principal, may be distributed at the discretion of

the trustee of the invaded trust, may be continued in the appointed trust.

4. "Invade" means the power to pay directly to the beneficiary of a trust or make

application for the benefit of the beneficiary.

5. "Invaded trust" means an existing irrevocable inter vivas or testamentary trust whose

principal is appointed under this chapter.

6. "Person or persons interested in the invaded trust" means all qualified beneficiaries as

defined in subsection 16 of section 59-09-06.

7. "Principal" includes the income of the trust at the time of the exercise of the power

which is not currently required to be distributed, including accrued and accumulated

income.

8. "Unlimited discretion" means the unlimited power to distribute principal. A power to

distribute principal which includes words, such as best interests, welfare, comfort, or

happiness may not be considered a limitation of the power to distribute principal.
N.D. Cent. Code § 59-04.2-21 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-21
59-04.2-21. (413) Property not productive of income
Status: reserved

59-04.2-21. (413) Property not productive of income

Reserved.
N.D. Cent. Code § 59-04.2-01 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-01
59-04.2-01. (102) Definitions
Status: in_force

59-04.2-01. (102) Definitions

In this chapter:

1. "Accounting period" means a calendar year unless another twelve-month period is

selected by a fiduciary. The term includes a portion of a calendar year or other

twelve-month period that begins when an income interest begins or ends when an

income interest ends.

2. "Beneficiary" includes, in the case of a decedent's estate, an heir, legatee, and devisee

and, in the case of a trust, an income beneficiary and a remainder beneficiary.

3. "Fiduciary" means a personal representative or a trustee. The term includes an

executor, administrator, successor personal representative, special administrator, and

a person performing substantially the same function.

4. "Income" means money or property that a fiduciary receives as current return from a

principal asset. The term includes a portion of receipts from a sale, exchange, or

liquidation of a principal asset, to the extent provided in sections 59-04.2-09 through

59-04.2-23.

5. "Income beneficiary" means a person to whom net income of a trust is or may be

payable.

6. "Income interest" means the right of an income beneficiary to receive all or part of net

income, whether the terms of the trust require it to be distributed or authorize it to be

distributed in the trustee's discretion.

7. "Mandatory income interest" means the right of an income beneficiary to receive net

income that the terms of the trust require the fiduciary to distribute.

8. "Net income" means the total receipts allocated to income during an accounting period

minus the disbursements made from income during the period, plus or minus transfers

under this chapter to or from income during the period.

9. "Principal" means property held in trust for distribution to a remainder beneficiary when

the trust terminates.

10. "Remainder beneficiary" means a person entitled to receive principal when an income

interest ends.

11. "Terms of a trust" means the manifestation of the intent of a settlor or decedent with

respect to the trust, expressed in a manner that admits of its proof in a judicial

proceeding, whether by written or spoken words or by conduct.

12. "Trustee" includes an original, additional, or successor trustee, whether or not

appointed or confirmed by a court.
N.D. Cent. Code § 59-12-07 — ND Code / Title 59 / Chapter 59-12 / Section 59-12-07
59-12-07. (407) Evidence of oral trust
Status: in_force

59-12-07. (407) Evidence of oral trust

Except as required by section 47-11-02 or a statute other than chapters 59-09, 59-10,

59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and 59-19, a trust need not be

evidenced by a trust instrument, but the creation of an oral trust and its terms, or an amendment

or revocation of an oral trust, may be established only by clear and convincing evidence.
N.D. Cent. Code § 59-19-01 — ND Code / Title 59 / Chapter 59-19 / Section 59-19-01
59-19-01. (1102) Electronic records and signatures
Status: in_force

59-19-01. (1102) Electronic records and signatures

The provisions of chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17,

59-18, and 59-19 governing the legal effect, validity, or enforceability of electronic records or

electronic signatures, and of contracts formed or performed with the use of such records or

signatures, conform to the requirements of section 102 of the Electronic Signatures in Global

and National Commerce Act [15 U.S.C. 7002] and supersede, modify, and limit the requirements

of the Electronic Signatures in Global and National Commerce Act.
N.D. Cent. Code § 59-16.3-07 — ND Code / Title 59 / Chapter 59-16.3 / Section 59-16.3-07
59-16.3-07. Unitrust amount as net income
Status: in_force

59-16.3-07. Unitrust amount as net income

Following the conversion of an income trust to a total return unitrust, the trustee:

1. Shall treat the unitrust amount as net income of the trust for purposes of determining

the amount available, from time to time, for distributions from the trust;

2. May allocate to trust income for each taxable year of the trust:

a. Net short-term capital gain described in section 1222(5) of the Internal Revenue

Code for that year, but only to the extent the amounts so allocated together with

all other amounts allocate to trust income for that year does not exceed the

unitrust amount for that year; and

b. Net long-term capital gain described in section 1222(7) of the Internal Revenue

Code for that year, but only to the extent the amount so allocated together with all

other amounts, including amounts described in subdivision a, allocated to trust

income for that year does not exceed the unitrust amount for that year.
N.D. Cent. Code § 59-09-07 — ND Code / Title 59 / Chapter 59-09 / Section 59-09-07
59-09-07. (107) Governing law
Status: in_force

59-09-07. (107) Governing law

The meaning and effect of the terms of a trust are determined by the law of the jurisdiction

designated in the terms or, in the absence of a controlling designation in the terms of the trust,

the law of the jurisdiction having the most significant relationship to the matter at issue.
N.D. Cent. Code § 59-16-05 — ND Code / Title 59 / Chapter 59-16 / Section 59-16-05
59-16-05. (805) Costs of administration
Status: in_force

59-16-05. (805) Costs of administration

In administering a trust, the trustee may incur only costs that are reasonable in relation to

the trust property, the purposes of the trust, and the skills of the trustee.
N.D. Cent. Code § 59-16.1-14 — ND Code / Title 59 / Chapter 59-16.1 / Section 59-16.1-14
59-16.1-14. No duty to exercise a power to invade
Status: in_force

59-16.1-14. No duty to exercise a power to invade

This chapter does not create a duty to exercise a power to invade principal and inference of

impropriety may not be made as a result of an authorized trustee not exercising the power

conferred under sections 59-16.1-04 and 59-16.1-05.
N.D. Cent. Code § 59-04.2-07 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-07
59-04.2-07. (302) Apportionment of receipts and disbursements when decedent dies or income interest begins
Status: in_force

59-04.2-07. (302) Apportionment of receipts and disbursements when decedent dies

or income interest begins.

1. A trustee shall allocate an income receipt or disbursement other than one to which

subsection 1 of section 59-04.2-04 applies to principal if its due date occurs before a

decedent dies in the case of an estate or before an income interest begins in the case

of a trust or successive income interest.

2. A trustee shall allocate an income receipt or disbursement to income if its due date

occurs on or after the date on which a decedent dies or an income interest begins and

it is a periodic due date. An income receipt or disbursement must be treated as

accruing from day to day if its due date is not periodic or it has no due date. The

portion of the receipt or disbursement accruing before the date on which a decedent

dies or an income interest begins must be allocated to principal and the balance must

be allocated to income.

3. An item of income or an obligation is due on the date the payer is required to make a

payment. If a payment date is not stated, there is no due date for the purposes of this

chapter. Distributions to shareholders or other owners from an entity to which section

59-04.2-09 applies are deemed to be due on the date fixed by the entity for

determining who is entitled to receive the distribution or, if no date is fixed, on the

declaration date for the distribution. A due date is periodic for receipts or

disbursements that must be paid at regular intervals under a lease or an obligation to

pay interest or if an entity customarily makes distributions at regular intervals.
N.D. Cent. Code § 59-04.2-05 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-05
59-04.2-05. (202) Distribution to residuary and remainder beneficiaries
Status: in_force

59-04.2-05. (202) Distribution to residuary and remainder beneficiaries

1. Each beneficiary described in subsection 4 of section 59-04.2-04 is entitled to receive

a portion of the net income equal to the beneficiary's fractional interest in undistributed

principal assets, using values as of the distribution date. If a fiduciary makes more

than one distribution of assets to beneficiaries to whom this section applies, each

beneficiary, including one who does not receive part of the distribution, is entitled, as of

each distribution date, to the net income the fiduciary has received after the date of

death or terminating event or earlier distribution date but has not distributed as of the

current distribution date.

2. In determining a beneficiary's share of net income, the following rules apply:

a. The beneficiary is entitled to receive a portion of the net income equal to the

beneficiary's fractional interest in the undistributed principal assets immediately

before the distribution date, including assets that later may be sold to meet

principal obligations.

b. The beneficiary's fractional interest in the undistributed principal assets must be

calculated without regard to property specifically given to a beneficiary and

property required to pay pecuniary amounts not in trust.

c. The beneficiary's fractional interest in the undistributed principal assets must be

calculated on the basis of the aggregate value of those assets as of the

distribution date without reducing the value by any unpaid principal obligation.

d. The distribution date for purposes of this section may be the date as of which the

fiduciary calculates the value of the assets if that date is reasonably near the date

on which assets are actually distributed.

3. If a fiduciary does not distribute all of the collected but undistributed net income to

each person as of a distribution date, the fiduciary shall maintain appropriate records

showing the interest of each beneficiary in that net income.

4. A fiduciary may apply the rules in this section, to the extent that the fiduciary considers

it appropriate, to net gain or loss realized after the date of death or terminating event

or earlier distribution date from the disposition of a principal asset if this section applies

to the income from the asset.
N.D. Cent. Code § 59-21-01 — ND Code / Title 59 / Chapter 59-21 / Section 59-21-01
59-21-01. Definitions
Status: in_force

59-21-01. Definitions

In this chapter:

1. "Charitable purpose" means the relief of poverty, the advancement of education, the

advancement of religion, the promotion of health, or any other purpose the

achievement of which is beneficial to the community.

2. "Endowment fund" means an institutional fund or part thereof that, under the terms of

a gift instrument, is not wholly expendable by the institution on a current basis. The

term does not include assets that an institution designates as an endowment fund for

its own use.

3. "Gift instrument" means a record, including an institutional solicitation, under which

property is granted to, transferred to, or held by an institution as an institutional fund.

4. "Institution" means:

a. A person, other than an individual, organized and operated exclusively for

charitable purposes;

b. A government or governmental entity, to the extent that it holds funds exclusively

for a charitable purpose; or

c. A trust that had both charitable and noncharitable interests, after all noncharitable

interests have terminated.

5. "Institutional fund" means a fund held by an institution exclusively for charitable

purposes. The term does not include:

a. Program-related assets;

b. A fund held for an institution by a trustee that is not an institution;

c. A fund in which a beneficiary that is not an institution has an interest, other than

an interest that could arise upon violation or failure of the purposes of the fund; or

d. Perpetual trust funds established by article IX of the Constitution of North Dakota.

6. "Program-related asset" means an asset held by an institution primarily to accomplish

a charitable purpose of the institution and not primarily for investment.

7. "Record" means information that is inscribed on a tangible medium or that is stored in

an electronic or other medium and is retrievable in perceivable form.
N.D. Cent. Code § 59-15-05 — ND Code / Title 59 / Chapter 59-15 / Section 59-15-05
59-15-05. (705) Resignation of trustee
Status: in_force

59-15-05. (705) Resignation of trustee

1. A trustee may resign:

a. Upon at least thirty days' notice to the settlor, if living, to all cotrustees, and the

qualified beneficiaries, except those qualified beneficiaries under a revocable

trust that the settlor has the capacity to revoke; or

b. With the approval of the court.

2. In approving a resignation, the court may issue orders and impose conditions

reasonably necessary for the protection of the trust property.

3. Any liability of a resigning trustee or of any sureties on the trustee's bond for acts or

omissions of the trustee is not discharged or affected by the trustee's resignation.
N.D. Cent. Code § 59-16-08 — ND Code / Title 59 / Chapter 59-16 / Section 59-16-08
59-16-08. (808) Powers to direct
Status: repealed

59-16-08. (808) Powers to direct

Repealed by S.L. 2017, ch. 416, § 11.
N.D. Cent. Code § 59-15-09 — ND Code / Title 59 / Chapter 59-15 / Section 59-15-09
59-15-09. (709) Reimbursement of expenses
Status: in_force

59-15-09. (709) Reimbursement of expenses

1. A trustee is entitled to be reimbursed out of the trust property, with interest as

appropriate, for expenses that were properly incurred in the administration of the trust

and, to the extent necessary to prevent unjust enrichment of the trust, expenses that

were not properly incurred in the administration of the trust.

2. An advance by the trustee of money for the protection of the trust gives rise to a lien

against trust property to secure reimbursement with reasonable interest. The lien

under this subsection does not apply to a common or collective fund that is exempt

under 26 U.S.C. 584.
N.D. Cent. Code § 59-04.2-12 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-12
59-04.2-12. (404) Principal receipts
Status: in_force

59-04.2-12. (404) Principal receipts

A trustee shall allocate to principal:

1. To the extent not allocated to income under this chapter, assets received from a

transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating

income interest, or a payer under a contract naming the trust or its trustee as

beneficiary.

2. Money or other property received from the sale, exchange, liquidation, or change in

form of a principal asset, including realized profit, subject to sections 59-04.2-09

through 59-04.2-23.

3. Amounts recovered from third parties to reimburse the trust because of disbursements

described in subdivision g of subsection 1 of section 59-04.2-25 or for other reasons to

the extent not based on the loss of income.

4. Proceeds of property taken by eminent domain, but a separate award made for the

loss of income with respect to an accounting period during which a current income

beneficiary had a mandatory income interest is income.

5. Net income received in an accounting period during which there is no beneficiary to

whom a trustee may or must distribute income.

6. Other receipts as provided in sections 59-04.2-16 through 59-04.2-23.
N.D. Cent. Code § 59-19-02 — ND Code / Title 59 / Chapter 59-19 / Section 59-19-02
59-19-02. (1106) Application to existing relationships
Status: repealed

59-19-02. (1106) Application to existing relationships

1. Except as otherwise provided in chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14,

59-15, 59-16, 59-17, 59-18, and 59-19, effective August 1, 2007, these chapters:

a. Apply to all trusts created after July 31, 2007; and

b. Apply to all judicial proceedings concerning trusts which are commenced after

July 31, 2007.

2. Except as otherwise provided in chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14,

59-15, 59-16, 59-17, 59-18, and 59-19, from August 1, 2007, through July 31, 2009:

a. A trust created before August 1, 2007, may elect to be subject to chapters 59-09,

59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and 59-19;

however, that trust must be in compliance with those chapters by August 1, 2009;

b. Any rule of construction or presumption provided in chapters 59-09, 59-10, 59-11,

59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and 59-19 applies to trust

instruments executed before August 1, 2009, unless there is a clear indication of

a contrary intent in the terms of the trust;

c. Chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18,

and 59-19 do not apply to judicial proceedings concerning trusts which are

commenced before that date unless the court finds that application of a particular

provision of these chapters would not substantially interfere with the effective

conduct of the judicial proceedings or prejudice the rights of the parties, in which

case the particular provision of these chapters applies and the superseded law

does not apply; and

d. An act done before August 1, 2009, is not affected by chapters 59-09, 59-10,

59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and 59-19.

3. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period

that has commenced to run under any other statute before August 1, 2007, for those

trusts that are subject to subsection 1, or before August 1, 2009, for those trusts that

are subject to subsection 2, that statute continues to apply to the right even if it has

been repealed or superseded.
N.D. Cent. Code § 59-16.3-09 — ND Code / Title 59 / Chapter 59-16.3 / Section 59-16.3-09
59-16.3-09. Distributions of principal not affected by conversion
Status: in_force

59-16.3-09. Distributions of principal not affected by conversion

Conversion to a total return unitrust under this chapter does not affect any other provisions

of the governing instrument, if any, regarding distributions of principal.
N.D. Cent. Code § 59-04.2-02 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-02
59-04.2-02. (103) Fiduciary duties - General principles
Status: in_force

59-04.2-02. (103) Fiduciary duties - General principles

1. In allocating receipts and disbursements to or between principal and income, and with

respect to any matter within the scope of sections 59-04.2-04 through 59-04.2-08, a

fiduciary:

a. Shall administer a trust or estate in accordance with the terms of the trust or the

will, even if there is a different provision in this chapter.

b. May administer a trust or estate by the exercise of a discretionary power of

administration given to the fiduciary by the terms of the trust or the will, even if the

exercise of the power produces a result different from a result required or

permitted by this chapter.

c. Shall administer a trust or estate in accordance with this chapter if the terms of

the trust or the will do not contain a different provision or do not give the fiduciary

a discretionary power of administration.

d. Shall add a receipt or charge a disbursement to principal to the extent that the

terms of the trust and this chapter do not provide a rule for allocating the receipt

or disbursement to or between principal and income.

2. In exercising a discretionary power of administration regarding a matter within the

scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a

fiduciary shall administer a trust or estate impartially, based on what is fair and

reasonable to all of the beneficiaries, except to the extent that the terms of the trust or

the will clearly manifest an intention that the fiduciary shall or may favor one or more of

the beneficiaries. A determination in accordance with this chapter is presumed to be

fair and reasonable to all of the beneficiaries.
N.D. Cent. Code § 59-12-01 — ND Code / Title 59 / Chapter 59-12 / Section 59-12-01
59-12-01. (401) Methods of creating trust
Status: in_force

59-12-01. (401) Methods of creating trust

A trust may be created by transfer of property to another person as trustee during the

settlor's lifetime or by will or other disposition taking effect upon the settlor's death, declaration

by the owner of property that the owner holds identifiable property as trustee, or exercise of a

power of appointment in favor of a trustee.
N.D. Cent. Code § 59-04.2-30 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-30
59-04.2-30. Certain charitable remainder unitrusts
Status: in_force

59-04.2-30. Certain charitable remainder unitrusts

1. Notwithstanding any other provision of this chapter, unless the trust instrument directs

otherwise, an increase in the value of the obligations described in this subsection

owned by a charitable remainder unitrust of the type authorized in section 664(d)(3) of

the Internal Revenue Code [26 U.S.C. 664(d)(3)] or its successor provisions is

distributable as income when it becomes available for distribution:

a. A zero coupon bond;

b. An annuity contract before annuitization;

c. A life insurance contract before the death of the insured;

d. An interest in a common trust fund as defined in section 584 of the Internal

Revenue Code [26 U.S.C. 584] or its successor provisions;

e. An interest in a partnership as defined in section 7701 of the Internal Revenue

Code [26 U.S.C. 7701] or its successor provisions; and

f. Any other obligation for the payment of money that is payable at a future time in

accordance with a fixed, variable, or discretionary schedule of appreciation in

excess of the price at which it was issued.

2. The increase in value of the obligations described in subsection 1 is distributable to the

beneficiary who was the income beneficiary at the time of the increase.

3. For purposes of this section, the increase in value of an obligation described in

subsection 1 is available for distribution only when the trustee receives cash on

account of the obligation. If the obligation is surrendered or liquidated partially, the

cash available must be attributed first to the increase.
N.D. Cent. Code § 59-13-02 — ND Code / Title 59 / Chapter 59-13 / Section 59-13-02
59-13-02. (502) Spendthrift provision
Status: in_force

59-13-02. (502) Spendthrift provision

1. A spendthrift provision is valid if it restrains either the voluntary or involuntary transfer

or both the voluntary and involuntary transfer of a beneficiary's interest.

2. A term of a trust providing that the interest of a beneficiary is held subject to a

spendthrift trust, or words of similar import, is sufficient to restrain both voluntary and

involuntary transfer of the beneficiary's interest.

3. A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift

provision and, except as otherwise provided in this chapter, a creditor or assignee of

the beneficiary may not reach the interest or a distribution by the trustee before its

receipt by the beneficiary.
N.D. Cent. Code § 59-16.2-04 — ND Code / Title 59 / Chapter 59-16.2 / Section 59-16.2-04
59-16.2-04. Designation and powers of distribution trust advisor
Status: in_force

59-16.2-04. Designation and powers of distribution trust advisor

1. A distribution trust advisor may be designated in the governing instrument of a trust.

The powers of a distribution trust advisor may be exercised or not exercised in the sole

and absolute discretion of the distribution trust advisor, and are binding on all other

persons, including each beneficiary, each fiduciary, each excluded fiduciary, and any

other person having an interest in the trust.

2. The governing instrument may use the title "distribution trust advisor" or a similar

name or description demonstrating the intent to provide for the office and function of a

distribution trust advisor.

3. Unless the terms of the governing instrument provide otherwise, the distribution trust

advisor may direct the trustee with regard to all decisions relating directly or indirectly

to discretionary distributions to or for one or more beneficiaries.
N.D. Cent. Code § 59-09-06 — ND Code / Title 59 / Chapter 59-09 / Section 59-09-06
59-09-06. (106) Common law of trusts - Principles of equity
Status: in_force

59-09-06. (106) Common law of trusts - Principles of equity

The common law of trusts and principles of equity supplement chapters 59-09, 59-10,

59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and 59-19, except to the extent

modified by chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16, 59-17, 59-18, and

59-19 or another statute of this state.
N.D. Cent. Code § 59-22-04 — ND Code / Title 59 / Chapter 59-22 / Section 59-22-04
59-22-04. (202) Principles of law and equity
Status: in_force

59-22-04. (202) Principles of law and equity

The law of this state and principles of equity applicable to a nontestamentary estate

planning document apply to an electronic nontestamentary estate planning document except as

modified by this chapter.
N.D. Cent. Code § 59-04.2-08 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-08
59-04.2-08. (303) Apportionment when income interest ends
Status: in_force

59-04.2-08. (303) Apportionment when income interest ends

1. In this section, "undistributed income" means net income received before the date on

which an income interest ends. The term does not include an item of income or

expense that is due or accrued or net income that has been added or is required to be

added to principal under the terms of the trust.

2. When a mandatory income interest ends, the trustee shall pay to a mandatory income

beneficiary who survives that date, or the estate of a deceased mandatory income

beneficiary whose death causes the interest to end, the beneficiary's share of the

undistributed income that is not disposed of under the terms of the trust unless the

beneficiary has an unqualified power to revoke more than five percent of the trust

immediately before the income interest ends. In the latter case, the undistributed

income from the portion of the trust that may be revoked must be added to principal.

3. When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the

trust's assets ends, the trustee shall prorate the final payment if and to the extent

required by applicable law to accomplish a purpose of the trust or its settlor relating to

income, gift, estate, or other tax requirements.
N.D. Cent. Code § 59-12-12 — ND Code / Title 59 / Chapter 59-12 / Section 59-12-12
59-12-12. (412) Modification or termination because of unanticipated circumstances or inability to administer trust effectively
Status: in_force

59-12-12. (412) Modification or termination because of unanticipated circumstances

or inability to administer trust effectively.

1. Upon petition by the trustee, the attorney general, or an interested party other than the

settlor, the court may modify the administrative or dispositive terms of a trust or

terminate the trust if, because of circumstances not anticipated by the settlor,

modification or termination will further the purposes of the trust. To the extent

practicable, the modification must be made in accordance with the settlor's probable

intention.

2. The court may modify the administrative terms of a trust if continuation of the trust on

its existing terms would be impracticable or wasteful or impair the trust's

administration.

3. Upon termination of a trust under this section, the trustee shall distribute the trust

property in a manner consistent with the purposes of the trust.
N.D. Cent. Code § 59-04.2-29 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-29
59-04.2-29. (506) Adjustments between principal and income because of taxes
Status: in_force

59-04.2-29. (506) Adjustments between principal and income because of taxes

1. A fiduciary may make adjustments between principal and income to offset the shifting

of economic interests or tax benefits between income beneficiaries and remainder

beneficiaries which arise from:

a. Elections and decisions, other than those described in subsection 2, that the

fiduciary makes from time to time regarding tax matters;

b. An income tax or any other tax that is imposed upon the fiduciary or a beneficiary

as a result of a transaction involving or a distribution from the estate or trust; or

c. The ownership by an estate or trust of an interest in an entity whose taxable

income, whether or not distributed, is includable in the taxable income of the

estate, trust, or a beneficiary.

2. If the amount of an estate tax marital deduction or charitable contribution deduction is

reduced because a fiduciary deducts an amount paid from principal for income tax

purposes instead of deducting it for estate tax purposes, and as a result estate taxes

paid from principal are increased and income taxes paid by an estate, trust, or

beneficiary are decreased, each estate, trust, or beneficiary that benefits from the

decrease in income tax shall reimburse the principal from which the increase in estate

tax is paid. The total reimbursement must equal the increase in the estate tax to the

extent that the principal used to pay the increase would have qualified for a marital

deduction or charitable contribution deduction but for the payment. The proportionate

share of the reimbursement for each estate, trust, or beneficiary whose income taxes

are reduced must be the same as its proportionate share of the total decrease in

income tax. An estate or trust shall reimburse principal from income.
N.D. Cent. Code § 59-22-11 — ND Code / Title 59 / Chapter 59-22 / Section 59-22-11
59-22-11. (209) Certification of paper copy
Status: in_force

59-22-11. (209) Certification of paper copy

An individual may create a certified paper copy of an electronic nontestamentary estate

planning document by affirming under penalty of perjury before a notary public that the paper

copy is a complete and accurate copy of the document.
N.D. Cent. Code § 59-16.1-05 — ND Code / Title 59 / Chapter 59-16.1 / Section 59-16.1-05
59-16.1-05. Authorized trustee without unlimited discretion
Status: in_force

59-16.1-05. Authorized trustee without unlimited discretion

1. An authorized trustee with the power to invade trust principal but without unlimited

discretion may appoint part or all of the principal of the trust to a trustee of an

appointed trust, provided that the current beneficiaries of the appointed trust must be

the same as the current beneficiaries of the invaded trust and the successor and

remainder beneficiaries must be the same as the successor and remainder

beneficiaries of the invaded trust.

2. If the authorized trustee exercises the power under this section, the appointed trust

must include the same language authorizing the trustee to distribute the income or

invade the principal of the appointed trust as in the invaded trust.

3. If the authorized trustee exercises the power under this section to extend the term of

the appointed trust beyond the term of the invaded trust, then for any period after the

invaded trust would have otherwise terminated under the provisions of the invaded

trust, then the appointed trust, in addition to the language required to be included in

the appointed trust pursuant to subsection 2 of section 59-16.1-05, also may include

language providing the trustee with unlimited discretion to invade the principal of the

appointed trust during this extended term.

4. If the beneficiary or beneficiaries of the invaded trust are described by a class, the

beneficiary or beneficiaries of the appointed trust shall include present or future

members of the class.

5. If the authorized trustee exercises the power under this section and if the invaded trust

grants a power of appointment to a beneficiary of the trust, the appointed trust shall

grant the power of appointment in the appointed trust and the class of permissible

appointees must be the same as in the invaded trust.
N.D. Cent. Code § 59-22-09 — ND Code / Title 59 / Chapter 59-22 / Section 59-22-09
59-22-09. (207) Witnessing and attestation
Status: in_force

59-22-09. (207) Witnessing and attestation

1. If any other provision of law bases the validity of a nontestamentary estate planning

document on whether the document is signed, witnessed, or attested by another

individual, the signature, witnessing, or attestation of that individual may be electronic.

2. As used in this subsection, "electronic presence" means two or more individuals in

different locations are able to communicate in real time to the same extent as if the

individuals were physically present in the same location. If any other provision of law

bases the validity of a nontestamentary estate planning document on whether the

document is signed, witnessed, or attested by another individual in the presence of the

individual signing the document, the presence requirement is satisfied if the individuals

are in each other's electronic presence.
N.D. Cent. Code § 59-04.2-25 — ND Code / Title 59 / Chapter 59-04.2 / Section 59-04.2-25
59-04.2-25. (502) Disbursements from principal
Status: in_force

59-04.2-25. (502) Disbursements from principal

1. A trustee shall make the following disbursements from principal:

a. The remaining one-half of the disbursements described in subsections 1 and 2 of

section 59-04.2-24;

b. All of the trustee's compensation calculated on principal as a fee for acceptance,

distribution, or termination, and disbursements made to prepare property for sale;

c. Payments on the principal of a trust debt;

d. Expenses of a proceeding that concerns primarily principal, including a

proceeding to construe the trust or to protect the trust or its property;

e. Premiums paid on a policy of insurance not described in subsection 4 of section

59-04.2-24 of which the trust is the owner and beneficiary;

f. Estate, inheritance, and other transfer taxes, including penalties, apportioned to

the trust; and

g. Disbursements related to environmental matters, including reclamation,

assessing environmental conditions, remedying and removing environmental

contamination, monitoring remedial activities and the release of substances,

preventing future releases of substances, collecting amounts from persons liable

or potentially liable for the costs of those activities, penalties imposed under

environmental laws or regulations and other payments made to comply with those

laws or regulations, statutory or common-law claims by third parties, and

defending claims based on environmental matters.

2. If a principal asset is encumbered with an obligation that requires income from that

asset to be paid directly to the creditor, the trustee shall transfer from principal to

income an amount equal to the income paid to the creditor in reduction of the principal

balance of the obligation.
N.D. Cent. Code § 59-10.1-05 — ND Code / Title 59 / Chapter 59-10.1 / Section 59-10.1-05
59-10.1-05. Distributions by trustee - Return of distribution determined to be invalid
Status: in_force

59-10.1-05. Distributions by trustee - Return of distribution determined to be invalid

1. The trustee may proceed to distribute the trust property in accordance with the terms

of the trust. This distribution may be made without liability unless the trustee has actual

knowledge of a pending proceeding to contest the validity of the trust, or is notified by

a potential contestant of a possible contest, followed by service of process upon the

trustee for that proceeding within thirty days of the notification of a possible contest.

2. The court may order the revocation of a distribution made under the authority of a trust

or amendment that is subsequently determined to be invalid and may order the

recipient of an invalid distribution to return the distribution.
N.D. Cent. Code § 59-14-05 — ND Code / Title 59 / Chapter 59-14 / Section 59-14-05
59-14-05. Settlor's powers to direct
Status: in_force

59-14-05. Settlor's powers to direct

While a trust is revocable, the trustee may follow a direction of the settlor which is contrary

to the terms of the trust.
N.D. Cent. Code § 59-16.3-02 — ND Code / Title 59 / Chapter 59-16.3 / Section 59-16.3-02
59-16.3-02. Trustee's authority to convert income trust - Conditions
Status: in_force

59-16.3-02. Trustee's authority to convert income trust - Conditions

A trustee, other than an interested trustee, or if two or more persons are acting as trustee, a

majority of the trustees who are not an interested trustee, and without the approval of a court,

may convert an income trust to a total return unitrust, reconvert a total return unitrust to an

income trust, or change the percentage used to calculate the unitrust amount and the method

used to determine the fair market value of the trust if:

1. The trustee adopts a written policy for the trust providing:

a. In the case of a trust being administered as an income trust, that future

distributions from the trust will be unitrust amounts rather than net income;

b. In the case of a trust being administered as a total return unitrust, that future

distributions from the trust will be net income rather than unitrust amounts; or

c. That the percentage used to calculate the unitrust amount or the method used to

determine the fair market value of the trust will be changed as stated in the policy.

2. The trustee sends written notice of its intention to take that action, along with copies of

the written policy and this chapter, to:

a. The settlor if living;

b. All living individuals who are currently receiving, or eligible to receive,

distributions of income of the trust;

c. All living individuals who would receive principal of the trust if the trust were to

terminate at the time of the giving of such notice, or if the trust does not provide

for its termination, all living individuals who would receive, or be eligible to

receive, distributions of income or principal of the trust if the persons identified in

subdivision b were deceased; and

d. All individuals acting as adviser or protector of the trust.

3. At least one person receiving notice under subdivision b and c of subsection 2, to the

best information and belief of the trustee, is legally competent;

4. No individual receiving the notice objects, by written instrument delivered to the

trustee, to the proposed action of the trustee within sixty days of receipt of notice.

5. In deciding whether, and to what extent, to exercise the power conferred under this

chapter, a trustee may consider all factors relevant to the trust and its beneficiaries,

including the following factors to the extent relevant:

a. The size, nature, purpose, and expected duration of the trust;

b. The intent of the settlor;

c. The identity and circumstances of the beneficiaries;

d. The needs for liquidity, regularity of income, and preservation and appreciation of

capital;

e. The assets held in the trust:

(1) The extent to which they consist of financial assets, interests in closely held

enterprises, tangible and intangible personal property, or real property;

(2) The extent to which an asset is used by a beneficiary; and

(3) Whether an asset was purchased by the trustee or received from the settlor;

f. The net amount allocated to income under the other sections of this chapter and

the increase or decrease in the value of the principal assets, which the trustee

may estimate as to assets for which market values are not readily available;

g. Whether and to what extent the terms of the trust give the trustee the power to

invade principal or accumulate income, or prohibit the trustee from invading

principal or accumulating income, and the extent to which the trustee has

exercised a power from time to time to invade principal or accumulate income;

h. The actual and anticipated effect of economic conditions on principal and income

and effects of inflation and deflation; and

i. The anticipated tax consequences.
N.D. Cent. Code § 59-16.2-08 — ND Code / Title 59 / Chapter 59-16.2 / Section 59-16.2-08
59-16.2-08. Application
Status: in_force

59-16.2-08. Application

This chapter applies to:

1. Existing and future trusts that appoint or provide for a directing party including a party

granted power or authority effectively comparable in substance to that of a directing

party as provided in this chapter; or

2. An existing or future trusts that:

a. Are modified in accordance with applicable law or the terms of the governing

instrument to appoint or provide for a directing party; or

b. Are modified to appoint or provide for a directing party, including a party granted

power or authority effectively comparable in substance to that of a directing party,

in accordance with a court order, or a nonjudicial settlement agreement whether

the order or agreement specifies this chapter governs the responsibilities,

actions, and liabilities of persons designated as a directing party or excluded

fiduciary.
N.D. Cent. Code § 59-13-07 — ND Code / Title 59 / Chapter 59-13 / Section 59-13-07
59-13-07. (507) Personal obligations of trustee
Status: in_force

59-13-07. (507) Personal obligations of trustee

Trust property is not subject to personal obligations of the trustee, even if the trustee

becomes insolvent or bankrupt.
N.D. Cent. Code § 59-12-17 — ND Code / Title 59 / Chapter 59-12 / Section 59-12-17
59-12-17. (417) Combination and division of trusts
Status: in_force

59-12-17. (417) Combination and division of trusts

After notice to the qualified beneficiaries, a trustee may combine two or more trusts into a

single trust or divide a trust into two or more separate trusts, if the result does not impair rights

of any beneficiary or adversely affect achievement of the purposes of the trust. The terms of

each new trust created by a division under this section do not have to be identical if the interest

of each beneficiary is substantially the same under the terms of the trust prior to its division and

the combined terms of all trusts after the division. Two or more trusts may be combined into a

single trust if the interests of each beneficiary in the trust resulting from the combination are

substantially the same as the combined interests of the beneficiary in the trusts prior to the

combination. The trustee shall determine the terms controlling any trust after its combination as

authorized by this section.
N.D. Cent. Code § 59-12-16 — ND Code / Title 59 / Chapter 59-12 / Section 59-12-16
59-12-16. (416) Modification to achieve settlor's tax objectives
Status: in_force

59-12-16. (416) Modification to achieve settlor's tax objectives

To achieve the settlor's tax objectives, the court may modify the terms of a trust in a manner

that is not contrary to the settlor's probable intention. The court may provide that the

modification has retroactive effect.