An Act To Update the Maine Uniform Trust Code
Maine Legislature, Session 125, LD 0532
Committee: Judiciary
Amends: 18-B MRSA §103, 18-B MRSA §105, 18-B MRSA §504, 18-B MRSA §506, 18-B MRSA §813

Legislative Document 
No. 532 
H.P. 415 
House of Representatives, February 15, 2011 
An Act To Update the Maine Uniform Trust Code 
Reported by Representative NASS of Acton for the Probate and Trust Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 18-A, section 1-803, subsection 2. 
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218. 
HEATHER J.R. PRIEST 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  18-B MRSA §103, sub-§4-A is enacted to read: 
4-A.  Current beneficiary. "Current beneficiary" means a beneficiary who, on the 
date the beneficiary's qualification is determined, is a distributee or permissible 
distributee of trust income or principal. 
2011 MAINE COMMENT (103) 
Subsection 4-A.  "Current beneficiaries" are a subclass of "qualified beneficiaries," as 
defined in section 103, subsection 12, paragraph A.  The term "current beneficiary" has 
been added to distinguish a qualified beneficiary who is a present distributee or 
permissible distributee of trust income or principal from a qualified beneficiary who may 
or will become a distributee or permissible distributee on some future date.  Current 
beneficiaries have rights to notice, information or reports under section 105, subsection 2, 
paragraphs H and I that are not afforded to other qualified beneficiaries. 
Sec. 2.  18-B MRSA §105, sub-§2, ¶H, as amended by PL 2005, c. 184, §5, is 
further amended to read: 
H.    Subject to subsection 3, the duty under section 813, subsection 2, paragraphs B 
and C to notify qualified current beneficiaries of an irrevocable trust who have 
attained 25 years of age of the existence of the trust, of the identity of the trustee and 
of their right to request trustee's reports; 
Sec. 3.  18-B MRSA §105, sub-§2, ¶I, as amended by PL 2005, c. 184, §5, is 
further amended to read: 
I.    Subject to subsection 3, the duty under section 813, subsection 1 to respond to the 
request of a qualified current beneficiary of an irrevocable trust for trustee's reports 
and other information reasonably related to the administration of a trust; 
Sec. 4.  18-B MRSA §105, sub-§3, ¶B, as enacted by PL 2005, c. 184, §6, is 
amended to read: 
B.    Designating With respect to one or more of the current beneficiaries as to whom 
the settlor has waived or modified such duties, designating a person or persons, any 
of whom may or may not be a beneficiary, to act in good faith to protect the interests 
of the qualified current beneficiaries who are not receiving notice, information or 
reports and to receive any notice, information or reports required under section 813, 
subsection 1 or 2 in lieu of providing such notice, information or reports to the 
qualified current beneficiaries.  The person or persons designated under this 
paragraph are deemed to be representatives of the qualified current beneficiaries not 
receiving notice, information or reports for the purposes of the time limitation for a 
beneficiary to commence an action against the trustee for breach of trust as provided 
in section 1005, subsection 1. 
2011 MAINE COMMENT  (105) 
As a result of the changes to subsection 2, paragraph H and subsection 3, paragraph B, 
the original Maine Comment is revised to read: 
Subsection 2, paragraph H has been changed by adding the word "current" before 
"beneficiaries."  "Current beneficiary" is a defined term under section 103, subsection 4-
A.  The term identifies a subclass of "qualified beneficiaries," as defined in section 103, 
subsection 12, paragraph A.  Section 813, subsection 1, as adopted in Maine, requires that 
a trustee respond to a "qualified beneficiary's" request for trustee's reports and other 
information reasonably related to the administration of a trust.  Notwithstanding the 
trustee's default duty under section 813, subsection 2, paragraphs B and C to provide 
qualified beneficiaries with notice of certain information about the trust, under section 
105, subsection 2, paragraph H a settlor may, by the terms of the trust, prohibit the trustee 
from notifying a current beneficiary who has not yet attained 25 years of age of the 
existence of the trust, of the identity of the trustee and of the current beneficiary's right to 
request trustee reports.  However, once a current beneficiary attains 25 years of age, the 
only way the current beneficiary may be "kept in the dark" as to the existence of the trust 
is for the settlor to name a person or persons to receive trustee reports on behalf of the 
current beneficiary as provided in subsection 3. The protector named in subsection 3 must 
act in good faith to protect the interests of the current beneficiary on whose behalf the 
protector is receiving trust information. Subsection 3 is not a uniform provision of the 
Uniform Trust Code.  Maine added subsection 3 as a means to provide settlors with an 
option to prevent disclosure of the existence of the trust and details of the trust 
administration to current beneficiaries.  A settlor has the power to prohibit the disclosure 
of the existence of the trust and details of the trust administration to all non-qualified 
beneficiaries and to all qualified beneficiaries that are not current beneficiaries (i.e., 
remainder beneficiaries) without the need to name a third person to receive such 
information on behalf of the nonqualified beneficiaries and remainder beneficiaries.   
For example, in a trust for the lifetime benefit of a settlor's child, with distribution to the 
child's descendants upon the death of the child, the child is the only current beneficiary of 
the trust.  The settlor may direct that until the child attains 25 years of age, no notices, 
information or reports need be given to the child or to anyone on the child's behalf.  After 
the child attains 25 years of age, the settlor may direct that the child still be "kept in the 
dark" about the trust, but in order to do so, the settlor must identify another person to 
receive trust notices, information and reports on behalf of the child.  The child's 
descendants are not current beneficiaries and therefore the settlor may direct that the 
trustee withhold all notices, information and reports from the child's descendants, 
regardless of their age.  By permitting a settlor to direct the trustee to withhold notice, 
information and reports from remainder beneficiaries, the settlor avoids the need to 
provide notice, information and reports to a class of beneficiaries who may never benefit 
from the trust, particularly when the current beneficiary has a testamentary power of 
appointment that may be exercised to eliminate the interest of one or more of the 
remainder beneficiaries.   
Note that a settlor may not name a protector to receive notice, information or reports in 
lieu of providing the notice, information or reports directly to the settlor's surviving 
spouse. 
The Uniform Trust Code has built into its default provisions a hierarchy of rights relating 
to providing various beneficiaries with information about a trust. The default provisions 
will govern unless the settlor chooses to modify them by the terms of the trust document: 
i.  Some classes of beneficiaries have a right to information whether they request it or not 
(e.g., under section 813, subsection 3, distributees or permissible distributees of trust 
income or principal have a right to receive annual reports without request); 
ii.  Other beneficiaries have a right to be affirmatively told of their right to request 
information (e.g., under section 813, subsection 2, paragraph C, qualified beneficiaries 
have to be informed of their right to request a copy of the trust instrument and of trustee's 
reports); and 
iii.  Nonqualified beneficiaries have a right to obtain a copy of the trust instrument only if 
they request a copy, but a trustee is under no affirmative obligation to inform them of the 
existence of the trust or of their right to request a copy; the nonqualified beneficiaries are 
on their own to learn of the existence of the trust (see section 813, subsection 2, 
paragraph A). 
Section 105 permits the settlor, by the terms of the trust, to alter the beneficiaries' rights 
and trustee's duties under section 813, except as specified in section 105, subsection 2, 
paragraphs H and I. 
Sec. 5.  18-B MRSA §504, sub-§3, as enacted by PL 2005, c. 184, §12, is 
repealed and the following enacted in its place: 
3.  Creditor limited.  If a trustee's or cotrustee's discretion to make distributions for 
the trustee's or cotrustee's own benefit is limited by an ascertainable standard, a creditor 
may not reach or compel distribution of the beneficial interest except to the extent the 
interest would be subject to the creditor's claim were the beneficiary not acting as trustee 
or cotrustee. 
2011 MAINE COMMENT  (504) 
The change to section 504, subsection 3 does not represent a change in Maine law.  Since 
the effective date of the Maine Uniform Trust Code, Maine law has prohibited a creditor 
from reaching or compelling distribution of the interest of a beneficiary who also serves 
as trustee as long as the trustee's discretion to make distributions for the trustee's own 
benefit is limited by an ascertainable standard. 
The restrictions on a creditor's ability to reach or compel distribution of the beneficial 
interest as provided in subsection 3 are not limited to a bypass trust.  Although a bypass 
trust is a common example of a trust in which a cotrustee or the sole trustee is also a 
beneficiary, with the settlor's spouse frequently named as both trustee and beneficiary, the 
provisions of subsection 3 are not limited to a bypass trust.  The provisions of subsection 
apply to any trust in which a beneficiary serves as a cotrustee or the sole trustee of the 
trust as long as the trustee's or cotrustee's discretion to make distributions for the trustee-
beneficiary's own benefit is limited by an ascertainable standard, regardless of whether 
the beneficiary has a testamentary power of appointment that will result in the trust 
property being included in the beneficiary's taxable estate upon the beneficiary's death.  
Therefore, although the main purpose of subsection 3 may be to protect the trustee-
beneficiary of a bypass trust from creditor claims, the same protection from creditor 
claims is available to the trustee-beneficiary of any trust that limits the trustee's discretion 
to make distributions for the trustee-beneficiary's own benefit by an ascertainable 
standard. 
Sec. 6.  18-B MRSA §506, as enacted by PL 2003, c. 618, Pt. A, §1 and affected 
by §2, is repealed and the following enacted in its place: 
§506.  Overdue distribution 
1.  Definitions. As used in this section, unless the context otherwise indicates,  
"mandatory distribution" means a distribution of income or principal that a trustee is 
required to make to a beneficiary under the terms of a trust, including a distribution upon 
termination of the trust.  "Mandatory distribution" does not include a distribution subject 
to the exercise of the trustee's discretion even if: 
A.  The discretion is expressed in the form of a standard of distribution; or 
B.  The terms of the trust authorizing a distribution couple language of discretion 
with language of direction. 
2.  Unreasonable delay in distribution. Whether or not a trust contains a spendthrift 
provision, a creditor or assignee of a beneficiary may reach a mandatory distribution of 
income or principal, including a distribution upon termination of the trust, if the trustee 
has not made the distribution to the beneficiary within a reasonable time after the 
designated distribution date. 
2011 MAINE COMMENT  (506) 
Subsection 1 has been added to the existing section 506 (which has been retained as 
subsection 2 to clarify, not change, the existing section).  It is identical to a new 
subsection that was added to the approved draft of the Uniform Trust Code by the 
National Conference of Commissioners on Uniform State Laws after the Maine Uniform 
Trust Code was drafted.  The new subsection 1 is intended to make clear that the term 
"mandatory distribution" is to be understood in its traditional sense.  Mandatory 
distributions can be distributions of income or principal, or both.  Trust language making 
reference to a standard for distribution (such as "support," "education," "health" or similar 
terms) does not create a mandatory distribution that can be compelled by either a creditor 
or a beneficiary (see section 504).  Even imperative language coupled with discretionary 
language (such as "my trustee shall, in its discretion, distribute such amounts as are 
necessary for the beneficiary's support") does not create a mandatory distribution.  The 
language of the new subsection 1 is consistent with section 814, subsection 1 as adopted 
in Maine ("A trustee's power to make distributions is discretionary notwithstanding terms 
of the trust providing that the trustee 'shall' make distributions exercising a discretionary 
power, with or without standards."). 
Sec. 7.  18-B MRSA §813, sub-§6 is enacted to read: 
6.  Duty to settlor of revocable trust. During the lifetime of the settlor of a 
revocable trust, whether or not the settlor has capacity to revoke the trust, the trustee's 
duties under this section are owed exclusively to the settlor. If the settlor lacks capacity to 
revoke the trust, a trustee may satisfy the trustee's duties under this section by providing 
information and reports to any one or more of the following in the order of preference 
listed: 
A.  The person or persons designated by the settlor in the trust to receive information 
and reports on the settlor's behalf; 
B.  The settlor's spouse or registered domestic partner under Title 22, section 2710; 
C.  The settlor's agent under a durable power of attorney; 
D.  The settlor's court-appointed conservator; or 
E.  The settlor's court-appointed guardian. 
If the settlor lacks capacity to revoke the trust and there are no persons listed in this 
subsection to whom the trustee may provide information and reports, the trustee shall 
satisfy its duties under this section by providing information and reports to the qualified 
beneficiaries. 
2011 MAINE COMMENT  (813) 
The settlor may restrict the information provided to qualified beneficiaries and less so to 
current beneficiaries as a subclass of qualified beneficiaries.  See section 105. 
Subsection 6 is added to clarify that whether or not the settlor has capacity to revoke the 
trust, the trustee's duties under this section are owed exclusively to the settlor.  This is 
consistent with Maine's adoption of section 603, subsection 1 which says, "While a trust 
is revocable, rights of the beneficiaries are subject to the control of, and the duties of the 
trustee are owed exclusively to, the settlor."  The fact that the settlor no longer has 
capacity to revoke the trust does not alter the trustee's duties under section 813.  In the 
event the settlor lacks capacity to revoke the trust, subsection 6 provides that the trustee 
may satisfy the duty to inform and report to the settlor by providing reports to various 
representatives of the incapacitated settlor or to the qualified beneficiaries. 
SUMMARY 
This bill contains recommendations of the Probate and Trust Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 18-A, section 1-803, 
subsection 2.  The bill amends the Maine Uniform Trust Code, which is based on the 
Uniform Trust Code approved by the National Conference of Commissioners on Uniform 
State Laws, and includes Maine Comments to explain the amendments. 
The bill adds a definition of "current beneficiary" to the Maine Uniform Trust Code.  
The bill amends the Maine Uniform Trust Code to distinguish between the rights of 
current beneficiaries and qualified beneficiaries in general with regard to their right to 
receive information about trusts.  Under the bill, current beneficiaries have rights to 
notice, information or reports that are not afforded to other qualified beneficiaries. 
The bill amends the Maine Uniform Trust Code with language added to the approved 
draft of the Uniform Trust Code by the National Conference of Commissioners on 
Uniform State Laws after the Maine Uniform Trust Code was adopted to clarify that a 
creditor may reach or compel distribution of the interest of a beneficiary who also serves 
as trustee when the trustee's discretion to make distributions for the trustee's own benefit 
is limited by an ascertainable standard, but only to the extent the interest would be subject 
to the creditor's claim were the beneficiary not acting as trustee or cotrustee. 
The bill repeals and replaces Title 18-B, section 506 to insert a new subsection 1, 
retaining the current language as a new subsection 2.  The new subsection 1 is based on a 
new subsection added to the approved draft of the Uniform Trust Code by the National 
Conference of Commissioners on Uniform State Laws after the Maine Uniform Trust 
Code was adopted.  The new language is intended to make clear that the term "mandatory 
distribution" is to be understood in its traditional sense. 
The bill adds a new subsection to Title 18-B, section 813 to clarify that whether or 
not a settlor has capacity to revoke a trust, the trustee's duties to inform and report under 
section 813 are owed exclusively to the settlor.