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WV Code § 44D-8B-7 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-7. Notice; Exercise of Decanting Power

(a) In this section, a notice period begins on the day notice is given under subsection (c) of this section and ends 59 days after the day notice is given.(b) Except as otherwise provided in this article, an authorized fiduciary may exercise the decanting power without the consent of any person and without court approval.(c) Except as otherwise provided in subsection (f) of this section, an authorized fiduciary shall give notice in a record of the intended exercise of the decanting power not later than 60 days before the exercise to:(1) Each grantor of the first trust, if living or then in existence;(2) Each qualified beneficiary of the first trust;(3) Each holder of a presently exercisable power of appointment over any part, or all of, the first trust;(4) Each person that currently has the right to remove or replace the authorized fiduciary;(5) Each other fiduciary of the first trust; (6) Each fiduciary of the second trust; and(7) The West Virginia Attorney General, if 44D-8B-14(b) of this code applies.(d) An authorized fiduciary is not required to give notice under subsection (c) of this section to a person that is not known to the fiduciary.(e) A notice under subsection (c) of this section must:(1) Specify the manner in which the authorized fiduciary intends to exercise the decanting power;(2) Specify the proposed effective date for exercise of the power;(3) Include a copy of the first-trust instrument; and(4) Include a copy of all second-trust instruments.(f) The decanting power may be exercised before expiration of the notice period under subsection (a) of this section if all persons entitled to receive notice waive the period in a signed record.(g) The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under 44D-8B-9 of this code asserting that:(1) An attempted exercise of the decanting power is ineffective because it did not comply with this article or was an abuse of discretion or breach of fiduciary duty; or(2) Section 44D-8B-22 of this code applies to the exercise of the decanting power.(h) An exercise of the decanting power is not ineffective because of the failure to give notice to one or more persons under subsection (c) of this section if the authorized fiduciary acted with reasonable care to comply with that subsection.
WV Code § 44D-8B-8 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-8. Representation

(a) Notice to a person with authority to represent and bind another person under a first-trust instrument or the provisions of this chapter has the same effect as notice given directly to the person represented.(b) Consent of or waiver by a person with authority to represent and bind another person under a first-trust instrument or the provisions of this chapter is binding on the person represented unless the person represented objects to the representation before the consent or waiver otherwise would become effective.(c) A person with authority to represent and bind another person under a first-trust instrument or the provisions of this chapter may file an application under 44D-8B-9 of this code on behalf of the person represented.(d) A grantor may not represent or bind a beneficiary under this article.
WV Code § 44D-8B-9 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-9. Court Involvement

(a) On application of an authorized fiduciary, a person entitled to notice under 44D-8B-7(c) of this code, a beneficiary, or with respect to a charitable interest any other person that has standing to enforce the charitable interest, the court may:(1) Provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under this article and consistent with the fiduciary duties of the authorized fiduciary;(2) Appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under this article and to exercise the decanting power;(3) Approve an exercise of the decanting power;(4) Determine that a proposed or attempted exercise of the decanting power is ineffective because:(A) After applying 44D-8B-22 of this code, the proposed or attempted exercise does not, or did not, comply with this article; or (B) The proposed or attempted exercise would be or was an abuse of the fiduciarys discretion or a breach of fiduciary duty;(5) Determine the extent to which 44D-8B-22 of this code applies to a prior exercise of the decanting power;(6) Provide instructions to the trustee regarding the application of 44D-8B-22 of this code to a prior exercise of the decanting power; or(7) Order other relief to carry out the purposes of this article.(b) On application of an authorized fiduciary, the court may approve:(1) An increase in the fiduciarys compensation under 44D-8B-16 of this code; or(2) A modification under 44D-8B-18 of this code of a provision granting a person the right to remove or replace the fiduciary.
WV Code § 44D-8B-10 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-10. Formalities

An exercise of the decanting power must be made in a record signed by an authorized fiduciary. The signed record must, directly or by reference to the notice required by 44D-8B-7 of this code, identify the first trust and the second trust or trusts and state the property of the first trust being distributed to each second trust and the property, if any, that remains in the first trust.
WV Code § 44D-8B-12 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-12. Decanting Power Under Limited Distributive Discretion

(a) In this section, "limited distributive discretion" means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard.(b) An authorized fiduciary that has limited distributive discretion over the principal of the first trust for benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust.(c) Under this section and subject to 44D-8B-14 of this code, a second trust may be created or administered under the law of any jurisdiction. Under this section, the second trusts, in the aggregate, must grant each beneficiary of the first trust beneficial interests which are substantially similar to the beneficial interests of the beneficiary in the first trust.(d) A power to make a distribution under a second trust for the benefit of a beneficiary who is an individual is substantially similar to a power under the first trust to make a distribution directly to the beneficiary. A distribution is for the benefit of a beneficiary if:(1) The distribution is applied for the benefit of the beneficiary;(2) The beneficiary is under a legal disability or the trustee reasonably believes the beneficiary is incapacitated, and the distribution is made as permitted under this chapter; or(3) The distribution is made as permitted under the terms of the first-trust instrument and the second-trust instrument for the benefit of the beneficiary.(e) If an authorized fiduciary has limited distributive discretion over part, but not all of, the principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the principal over which the authorized fiduciary has limited distributive discretion.
WV Code § 44D-8B-13 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-13. Trust for Beneficiary With Disability

(a) In this section:(1) "Beneficiary with a disability" means a beneficiary of a first trust who the special-needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been adjudicated a protected person.(2) "Governmental benefits" means financial aid or services from a state, federal, or other public agency.(3) "Special-needs fiduciary" means, with respect to a trust that has a beneficiary with a disability:(A) A trustee or other fiduciary, other than a grantor, that has discretion to distribute part or all of the principal of a first trust to one, or more current beneficiaries;(B) If no trustee or fiduciary has discretion under paragraph (A) of this subdivision, a trustee or other fiduciary, other than a grantor, that has discretion to distribute part, or all of, the income of the first trust to one or more current beneficiaries; or(C) If no trustee or fiduciary has discretion under paragraphs (A) and (B) of this subdivision, a trustee or other fiduciary, other than a grantor, that is required to distribute part, or all of, the income or principal of the first trust to one or more current beneficiaries.(4) "Special-needs trust" means a trust the trustee believes would not be considered a resource for purposes of determining whether a beneficiary with a disability is eligible for governmental benefits.(b) A special-needs fiduciary may exercise the decanting power under 44D-8B-11 of this code over the principal of a first trust as if the fiduciary had authority to distribute principal to a beneficiary with a disability subject to expanded distributive discretion if:(1) A second trust is a special-needs trust that benefits the beneficiary with a disability; and (2) The special-needs fiduciary determines that exercise of the decanting power will further the purposes of the first trust.(c) In an exercise of the decanting power under this section, the following rules apply:(1) Notwithstanding 44D-8B-11(c)(2) of this code, the interest in the second trust of a beneficiary with a disability may:(A) Be a pooled trust as defined by Medicaid law for the benefit of the beneficiary with a disability under 42 U.S.C. 1396p(d)(4)(C); or(B) Contain payback provisions complying with reimbursement requirements of Medicaid law under 42 U.S.C. 1396p(d)(4)(A).(2) Section 44D-8B-11(c)(3) of this code does not apply to the interests of the beneficiary with a disability.(3) Except as affected by any change to the interests of the beneficiary with a disability, the second trust, or if there are two or more second trusts, the second trusts in the aggregate, must grant each other beneficiary of the first trust beneficial interests in the second trusts which are substantially similar to the beneficiarys beneficial interests in the first trust.
WV Code § 44D-8B-14 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-14. Protection of Charitable Interest

(a) In this section:(1) "Determinable charitable interest" means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event, or after the passage of a specified time and which is unconditional or will be held solely for charitable purposes.(2) "Unconditional" means not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the United States Internal Revenue Code of 1986 on the date of the distribution, if the charitable organization meets the requirement on the date of determination.(b) If a first trust contains a determinable charitable interest which is not held by an identified charitable organization, the Attorney General has the rights of a qualified beneficiary and may represent and bind the charitable interest.(c) If a first trust contains a charitable interest, the second trust or trusts may not:(1) Diminish the charitable interest;(2) Diminish the interest of an identified charitable organization that holds the charitable interest;(3) Alter any charitable purpose stated in the first-trust instrument; or(4) Alter any condition or restriction related to the charitable interest.(d) If there are two or more second trusts, the second trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of subsection (c) of this section.(e) If a first trust contains a determinable charitable interest which is not held by an identified charitable organization, the second trust or trusts that include a charitable interest pursuant to subsection (c) of this section must be administered under the law of this state unless:(1) The Attorney General, after receiving notice under 44D-8B-7 of this code, fails to object in a signed record delivered to the authorized fiduciary within the notice period;(2) The Attorney General consents in a signed record to the second trust or trusts being administered under the law of another jurisdiction; or(3) The court approves the exercise of the decanting power.
WV Code § 44D-8B-15 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-15. Trust Limitation on Decanting

(a) An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of:(1) The decanting power; or(2) A power granted by state law to the fiduciary to distribute part, or all of, the principal of the trust to another trust or to modify the trust.(b) Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of:(1) The decanting power; or(2) A power granted by state law to a fiduciary to distribute part, or all of, the principal of the trust to another trust or to modify the trust.(c) A general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiarys interest does not preclude exercise of the decanting power. (d) Subject to subsections (a) and (b) of this section, an authorized fiduciary may exercise the decanting power under this article even if the first-trust instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part, or all of, the principal of the first trust to another trust.(e) If a first-trust instrument contains an express prohibition described in subsection (a) of this section or an express restriction described in subsection (b) of this section, the provision must be included in the second-trust instrument.
WV Code § 44D-8B-16 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-16. Change in Compensation

(a) If a first-trust instrument specifies an authorized fiduciarys compensation, the fiduciary may not exercise the decanting power to increase the fiduciarys compensation above the specified compensation unless:(1) All qualified beneficiaries of the second trust consent to the increase in a signed record; or (2) The increase is approved by the court.(b) If a first-trust instrument does not specify an authorized fiduciarys compensation, the fiduciary may not exercise the decanting power to increase the fiduciarys compensation above the compensation permitted by this chapter unless:(1) All qualified beneficiaries of the second trust consent to the increase in a signed record; or (2) The increase is approved by the court.(c) A change in an authorized fiduciarys compensation which is incidental to other changes made by the exercise of the decanting power is not an increase in the fiduciarys compensation for purposes of subsections (a) and (b) of this section.
WV Code § 44D-8B-17 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-17. Relief From Liability and Indemnification

(a) Except as otherwise provided in this section, a second-trust instrument may not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first-trust instrument.(b) A second-trust instrument may provide for indemnification of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity under the first trust for any liability or claim that would have been payable from the first trust if the decanting power had not been exercised.(c) A second-trust instrument may not reduce fiduciary liability in the aggregate.(d) Subject to subsection (c) of this section, a second-trust instrument may divide and reallocate fiduciary powers among fiduciaries, including one or more trustees, distribution advisors, investment advisors, trust protectors, or other persons, and relieve a fiduciary from liability for an act or failure to act of another fiduciary as permitted by law of this state other than this article.
WV Code § 44D-8B-18 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-18. Removal or Replacement of Authorized Fiduciary

An authorized fiduciary may not exercise the decanting power to modify a provision in a first-trust instrument granting another person power to remove or replace the fiduciary unless:(1) The person holding the power consents to the modification in a signed record and the modification applies only to the person;(2) The person holding the power and the qualified beneficiaries of the second trust consent to the modification in a signed record and the modification grants a substantially similar power to another person; or(3) The court approves the modification and the modification grants a substantially similar power to another person.
WV Code § 44D-8B-20 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-20. Duration of Second Trust

(a) Subject to subsection (b) of this section, a second trust may have a duration that is the same as or different from the duration of the first trust.(b) To the extent that property of a second trust is attributable to property of the first trust, the property of the second trust is subject to any rules governing maximum perpetuity, accumulation, or suspension of the power of alienation which apply to property of the first trust.
WV Code § 44D-8B-21 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-21. Need to Distribute Not Required

An authorized fiduciary may exercise the decanting power whether or not under the first trusts discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of the exercise.
WV Code § 44D-8B-22 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-22. Saving Provision

(a) If exercise of the decanting power would be effective under this article except that the second-trust instrument in part does not comply with this article, the exercise of the power is effective and the following rules apply with respect to the principal of the second trust attributable to the exercise of the power:(1) A provision in the second-trust instrument which is not permitted under this article is void to the extent necessary to comply with this article; and(2) A provision required by this article to be in the second-trust instrument which is not contained in the instrument is considered to be included in the instrument to the extent necessary to comply with this article.(b) If a trustee or other fiduciary of a second trust determines that subsection (a) of this section applies to a prior exercise of the decanting power, the fiduciary shall take corrective action consistent with the fiduciarys duties.
WV Code § 44D-8B-23 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-23. Trust for Care of Animal

(a) In this section:(1) "Animal trust" means a trust or an interest in a trust created to provide for the care of one or more animals.(2) "Protector" means a person appointed in an animal trust to enforce the trust on behalf of the animal or, if no person is appointed in the trust, a person appointed by the court for that purpose.(b) The decanting power may be exercised over an animal trust that has a protector to the extent the trust could be decanted under this article if each animal that benefits from the trust were an individual, if the protector consents in a signed record to the exercise of the power.(c) A protector for an animal has the rights under this article of a qualified beneficiary.(d) Notwithstanding any other provision of this article, if a first trust is an animal trust, in an exercise of the decanting power, the second trust must provide that trust property may be applied only to its intended purpose for the period the first trust benefitted the animal.
WV Code § 44D-8B-24 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-24. Terms of Second Trust

Any reference in this chapter to a trust instrument or terms of the trust includes a second-trust instrument and the terms of the second trust.
WV Code § 44D-8B-25 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-25. Grantor

(a) For purposes of law of this state other than this article and subject to subsection (b) of this section, a grantor of a first trust is considered to be the grantor of the second trust with respect to the portion of the principal of the first trust subject to the exercise of the decanting power.(b) In determining grantor intent with respect to a second trust, the intent of a grantor of the first trust, a grantor of the second trust, and the authorized fiduciary may be considered.
WV Code § 44D-8B-26 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-26. Later-Discovered Property

(a) Except as otherwise provided in subsection (c) of this section, if exercise of the decanting power was intended to distribute all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust and property paid to or acquired by the first trust after the exercise of the power is part of the trust estate of the second trust or trusts.(b) Except as otherwise provided in subsection (c) of this section, if exercise of the decanting power was intended to distribute less than all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power remains part of the trust estate of the first trust.(c) An authorized fiduciary may provide in an exercise of the decanting power or by the terms of a second trust for disposition of later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power.
WV Code § 44D-8B-27 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-27. Obligations

A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the second trust after exercise of the decanting power.
WV Code § 44D-8B-28 (2021)
2021 West Virginia Code|Chapter 44D. Uniform Trust Code|Article 8B. West Virginia Uniform Trust Decanting Act|§44D-8B-28. Uniformity of Application and Construction

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.