reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 4 - Creation, Validity, Modification and Termination of Trust › Section 46A-4-414 - Termination of uneconomic trust.

A. After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than fifty thousand dollars ($50,000) may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.
B. The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.
C. 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.
D. This section does not apply to an easement for conservation or preservation.
History:
Laws 2003, ch. 122, § 4-414.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 4 - Creation, Validity, Modification and Termination of Trust › Section 46A-4-415 - Reformation to correct mistakes.

The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.
History:
Laws 2003, ch. 122, § 4-415.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 4 - Creation, Validity, Modification and Termination of Trust › Section 46A-4-416 - 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.
History:
Laws 2003, ch. 122, § 4-416.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 4 - Creation, Validity, Modification and Termination of Trust › Section 46A-4-417 - 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.
History:
Laws 2003, ch. 122, § 4-417.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-501 - Rights of beneficiary's creditor or assignee.

To the extent a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances.
History:
Laws 2003, ch. 122, § 5-501; 2007, ch. 128, § 12.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, provided that if a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor to reach the beneficiary's interest.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-502 - Spendthrift provision.

A. A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest.
B. 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.
C. A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this article, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.
History:
Laws 2003, ch. 122, § 5-502.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-503 - Exceptions to spendthrift provision.

A. As used in this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.
B. A spendthrift provision is unenforceable against:
(1) a beneficiary's child, spouse or former spouse who has a judgment or court order against the beneficiary for support or maintenance;
(2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust; and
(3) a claim of this state or the United States to the extent a statute of this state or federal law so provides.
C. A claimant against whom a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances. The order attaching present or future distributions to or for the benefit of the beneficiary shall be the exclusive remedy available to a claimant against whom a spendthrift provision cannot be enforced.
History:
Laws 2003, ch. 122, § 5-503; 2007, ch. 128, § 13.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, in Subsection B, restated the provisions of Subsections B and C.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-504 - Discretionary trusts; effect of standard.

A. As used in this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.
B. Except as otherwise provided in Subsection C of this section, whether or not a trust contains a spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if:
(1) the discretion is expressed in the form of a standard of distribution; or
(2) the trustee has abused the discretion.
C. To the extent a trustee has not complied with a standard of distribution or has abused a discretion:
(1) a distribution may be ordered by the court to satisfy a judgment or court order against the beneficiary for support or maintenance of the beneficiary's child, spouse or former spouse; and
(2) the court shall direct the trustee to pay to the child, spouse or former spouse such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion.
D. This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.
E. If the trustee's or co-trustee's discretion to make distributions for the trustee's or co-trustee's own benefit is limited by an ascertainable standard, a creditor shall 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 co-trustee.
History:
Laws 2003, ch. 122, § 5-504; 2007, ch. 128, § 14.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, added Subsection E.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-505 - Creditor's claim against settlor.

A. Whether or not the terms of a trust contain a spendthrift provision, the following rules apply:
(1) during the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors;
(2) with respect to an irrevocable trust, a creditor or assignee of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution; and
(3) after the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains and statutory allowances to a surviving spouse and children to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, expenses and allowances.
B. For purposes of this section:
(1) during the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power; and
(2) upon the lapse, release or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release or waiver exceeds the greater of the amount specified in Section 2041(b)(2), 2514(e) or 2503(b) of the Internal Revenue Code of 1986, as amended.
History:
Laws 2003, ch. 122, § 5-505.
ANNOTATIONS
Cross references.
— For the Internal Revenue Code of 1986,
see
Title 26 U.S.C.S.
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Invasion of trust.
— Section 46A-5-505A(3) NMSA 1978 allows a revocable trust to be invaded in two relevant instances: to satisfy the claims of creditors and to provide the surviving family with the statutory allowances. There is no legislative intent in the plain language of the statute that would allow an omitted spouse to invade a trust corpus to determine or satisfy an intestate share. Bell v. Estate of Ralph M. Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 145 N.M. 532, 202 P.3d 125.
Omitted spouse.
— The intestate share of an omitted spouse is not a statutory allowance as contemplated by Section 46A-5-505A(3) NMSA 1878. Bell v. Estate of Ralph M. Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 145 N.M. 532, 202 P.3d 125.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-506 - Overdue distribution.

A. 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.
B. As used in this section, "mandatory distribution" means a distribution of income or principal that the trustee is required to make to a beneficiary under the terms of the 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 the discretion is expressed in the form of a standard of distribution or the terms of the trust authorizing distribution combine language of discretion with language of direction.
History:
Laws 2003, ch. 122, § 5-506; 2007, ch. 128, § 15.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, added Subsection B.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 5 - Creditor's Claims; Spendthrift and Discretionary Trusts › Section 46A-5-507 - Personal obligations of trustee.

Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.
History:
Laws 2003, ch. 122, § 5-507.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 6 - Revocable Trusts › Section 46A-6-601 - Capacity of settlor of revocable trust.

The capacity required to create, amend, revoke or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
History:
Laws 2003, ch. 122, § 6-601.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 6 - Revocable Trusts › Section 46A-6-603 - Settlor's powers; powers of withdrawal.

A. While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust.
B. While a trust is revocable and the settlor has capacity to revoke the trust, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
C. During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.
History:
Laws 2003, ch. 122, § 6-603; 2007, ch. 128, § 17; 2018, ch. 63, § 22.
ANNOTATIONS
The 2018 amendment,
effective January 1, 2019, provided additional powers of a settlor of a trust; and added a new Subsection A and redesignated former Subsections A and B as Subsections B and C, respectively.
The 2007 amendment,
effective July 1, 2007, eliminated the provision that a trustee has a duty to all settlers who have capacity to revoke a trust.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 6 - Revocable Trusts › Section 46A-6-604 - Limitation on action contesting validity of revocable trust; distribution of trust property.

A. A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of:
(1) three years after the settlor's death; or
(2) one hundred twenty days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address and of the time allowed for commencing a proceeding.
B. Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
(1) the trustee knows of a pending judicial proceeding contesting the validity of the trust; or
(2) a potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within sixty days after the contestant sent the notification.
C. A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.
History:
Laws 2007, ch. 128, § 18.
ANNOTATIONS
Effective dates.
— Laws 2007, ch. 128, § 31 made the section effective July 1, 2007.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-701 - Accepting or declining trusteeship.

A. Except as otherwise provided in Subsection C of this section, a person designated as trustee accepts the trusteeship:
(1) by substantially complying with a method of acceptance provided in the terms of the trust; or
(2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee or otherwise indicating acceptance of the trusteeship.
B. A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship.
C. A person designated as trustee, without accepting the trusteeship, may:
(1) act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a qualified beneficiary; and
(2) inspect or investigate trust property to determine potential liability under environmental law or other law or for any other purpose.
History:
Laws 2003, ch. 122, § 7-701.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-702 - Trustee's bond.

A. 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.
B. 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.
C. A regulated financial service institution qualified to do trust business in New Mexico need not give bond, even if required by the terms of the trust.
History:
Laws 2003, ch. 122, § 7-702; 2007, ch. 128, § 19.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, added Subsection C.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-703 - Co-trustees.

A. Co-trustees who are unable to reach a unanimous decision may act by majority decision.
B. If a vacancy occurs in a co-trusteeship, the remaining co-trustees may act for the trust.
C. Subject to Section 12 [46-14-12 NMSA 1978] of the Uniform Directed Trust Act, a co-trustee shall participate in the performance of a trustee's function unless the co-trustee is unavailable to perform the function because of absence, illness, disqualification under other law or other temporary incapacity, or the co-trustee has properly delegated the performance of the function to another trustee.
D. If a co-trustee is unavailable to perform duties because of absence, illness, disqualification under other law or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining co-trustee or a majority of the remaining co-trustees may act for the trust.
E. A trustee shall not delegate to a co-trustee the performance of a function the settlor reasonably expected the trustees to perform jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation previously made.
F. Except as otherwise provided in Subsection G of this section, a trustee who does not join in an action of another trustee is not liable for the action.
G. Subject to Section 12 of the Uniform Directed Trust Act, each trustee shall exercise reasonable care to:
(1) prevent a co-trustee from committing a serious breach of trust; and
(2) compel a co-trustee to redress a serious breach of trust.
H. A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified any co-trustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust.
History:
Laws 2003, ch. 122, § 7-703; 2018, ch. 63, § 23.
ANNOTATIONS
The 2018 amendment,
effective January 1, 2019, made certain provisions related to co-trustees subject to the Uniform Directed Trust Act; in Subsection C, added "Subject to Section 12 of the Uniform Directed Trust Act", and after the first occurrence of "co-trustee", deleted "must" and added "shall"; in Subsection E, after "A trustee", deleted "may" and added "shall"; and in Subsection G, added "Subject to Section 12 of the Uniform Directed Trust Act".
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-704 - Vacancy in trusteeship; appointment of successor.

A. A vacancy in a trusteeship occurs if:
(1) a person designated as trustee rejects the trusteeship;
(2) a person designated as trustee cannot be identified or does not exist;
(3) a trustee resigns;
(4) a trustee is disqualified or removed;
(5) a trustee dies; or
(6) a guardian or conservator is appointed for an individual serving as trustee.
B. If one or more co-trustees 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.
C. A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:
(1) by a person designated in the terms of the trust to act as successor trustee;
(2) by a person appointed by unanimous agreement of the qualified beneficiaries; or
(3) by a person appointed by the court.
D. A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:
(1) by a person designated in the terms of the trust to act as successor trustee;
(2) 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; or
(3) by a person appointed by the court.
E. 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.
History:
Laws 2003, ch. 122, § 7-704.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Death of trustee.
— The death of a sole or surviving trustee does not terminate the trust, unless the settlor has manifested an intention that the trust shall be personal to the particular trustee. Butt v. Bank of America, N.A., 477 F.3d 1171 (10th Cir. 2007)
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-705 - Resignation of trustee.

A. A trustee may resign:
(1) upon at least thirty days' notice to the qualified beneficiaries, the settlor, if living, and all co-trustees; or
(2) with the approval of the court.
B. In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.
C. 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.
History:
Laws 2003, ch. 122, § 7-705; 2007, ch. 128, § 20.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, required a trustee to given notice of resignation to the settlor.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-706 - Removal of trustee.

A. The settlor, a co-trustee or a beneficiary may request the court to remove a trustee or a trustee may be removed by the court on its own initiative.
B. The court may remove a trustee if:
(1) the trustee has committed a serious breach of trust;
(2) lack of cooperation among co-trustees substantially impairs the administration of the trust;
(3) because of unfitness, unwillingness or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or
(4) there has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available.
C. Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief as may be necessary to protect the trust property or the interests of the beneficiaries.
History:
Laws 2003, ch. 122, § 7-706.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-707 - Delivery of property by former trustee.

A. Unless a co-trustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.
B. A trustee who has resigned or been removed shall proceed expeditiously to deliver the trust property within the trustee's possession to the co-trustee, successor trustee or other person entitled to it.
History:
Laws 2003, ch. 122, § 7-707.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-708 - Compensation of trustee.

A. If the terms of a trust do not specify the trustee's compensation, a trustee is entitled to compensation that is reasonable under the circumstances.
B. If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:
(1) the duties of the trustee are substantially different from those contemplated when the trust was created; or
(2) the compensation specified by the terms of the trust would be unreasonably low or high.
History:
Laws 2003, ch. 122, § 7-708.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 7 - Office of Trustee › Section 46A-7-709 - Reimbursement of expenses.

A. A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for:
(1) expenses that were properly incurred in the administration of the trust; and
(2) to the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.
B. 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.
History:
Laws 2003, ch. 122, § 7-709.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-801 - Duty to administer trust.

Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries and in accordance with the Uniform Trust Code [46A-1-101 NMSA 1978].
History:
Laws 2003, ch. 122, § 8-801.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Claim of breach of fiduciary duty against co-owner of trademark.
— Where beneficiary of survivor trust claimed the co-owner of a trademark took actions that negatively impacted beneficiary's half interest in the trademark, court of appeals determined that the contention of negative impact on beneficiary's trademark interest was in the nature of a claim of trademark infringement by one co-owner against the other, not a claim of breach of fiduciary duty in the trust context; notwithstanding, the court of appeals held that when parties are co-owners of a trademark, one party cannot sue the other party for trademark infringement because a co-owner cannot infringe the trademark it owns. Khalsa v. Puri, 2015-NMCA-027, cert. denied, 2015-NMCERT-001.
Fiduciary duty not owed to non-beneficiary of trust.
— Where wife, as beneficiary of a survivor's trust, created from half of the community estate contained in a living trust following beneficiary's husband's death, claimed that the trustees of an administrative trust, created from the other half of the community estate contained in the living trust, breached their fiduciary duties in the management of the administrative trust, wife was precluded from claiming a breach of fiduciary duties when she was not a beneficiary of the administrative trust. Khalsa v. Puri, 2015-NMCA-027, cert. denied, 2015-NMCERT-001.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-803 - Impartiality.

If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing and distributing the trust property, giving due regard to the beneficiaries' respective interests.
History:
Laws 2003, ch. 122, § 8-803.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-805 - 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.
History:
Laws 2003, ch. 122, § 8-805.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-806 - 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.
History:
Laws 2003, ch. 122, § 8-806.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-807 - Delegation by trustee.

A. A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill and caution in:
(1) selecting an agent;
(2) establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
(3) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
B. In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
C. A trustee who complies with Subsection A of this section is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.
D. By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.
History:
Laws 2003, ch. 122, § 8-807.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-808 - Repealed.

History:
Laws 2003, ch. 122, § 8-808; repealed by Laws 2018, ch. 63, § 24.
ANNOTATIONS
Repeals.
— Laws 2018, ch. 63, § 24 repealed 46A-8-808 NMSA 1978, as enacted by Laws 2003, ch. 122, § 8-808, relating to powers to direct, effective January 1, 2019. For provisions of former section,
see
the 2017 NMSA 1978 on
NMOneSource.com
.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-809 - Control and protection of trust property.

A trustee shall take reasonable steps to take control of and protect the trust property.
History:
Laws 2003, ch. 122, § 8-809.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-810 - Recordkeeping and identification of trust property.

A. A trustee shall keep adequate records of the administration of the trust.
B. A trustee shall keep trust property separate from the trustee's own property.
C. Except as otherwise provided in Subsection D of this section, a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.
D. If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts.
History:
Laws 2003, ch. 122, § 8-810.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-811 - Enforcement and defense of claims.

A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.
History:
Laws 2003, ch. 122, § 8-811.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-812 - Collecting trust property.

A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee and to redress a breach of trust known to the trustee to have been committed by a former trustee.
History:
Laws 2003, ch. 122, § 8-812.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-814 - Discretionary powers; tax savings.

A. 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 terms and purposes of the trust and the interests of the beneficiaries.
B. Subject to Subsection D of this section, and unless the terms of the trust expressly indicate that a rule in this subsection does not apply:
(1) 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
(2) 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.
C. A power whose exercise is limited or prohibited by Subsection B of this section 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.
D. Subsection B of this section does not apply to:
(1) 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(b)(5) of the Internal Revenue Code of 1986, as amended, was previously allowed;
(2) any trust during any period that the trust may be revoked or amended by its settlor; or
(3) a trust if contributions to the trust qualify for the annual exclusion under Section 2503(c) of the Internal Revenue Code of 1986, as amended.
History:
Laws 2003, ch. 122, § 8-814; 2007, ch. 128, § 23.
ANNOTATIONS
Cross references.
— For the federal Internal Revenue Code,
see
26 U.S.C. § 1 et seq.
The 2007 amendment,
effective July 1, 2007, amended Paragraph (2) of Subsection B to eliminate the qualification that the ascertainable standard relate to the trustee's individual health, education, support or maintenance within the meaning of the Internal Revenue Code.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-815 - General powers of trustee.

A. A trustee, without authorization by the court, may exercise:
(1) powers conferred by the terms of the trust; and
(2) except as limited by the terms of the trust:
(a) all powers over the trust property that an unmarried competent owner has over individually owned property;
(b) any other powers appropriate to achieve the proper investment, management and distribution of the trust property; and
(c) any other powers conferred by the Uniform Trust Code [46A-1-101 NMSA 1978].
B. The exercise of a power is subject to the fiduciary duties prescribed by Chapter 46A, Article 8 NMSA 1978.
History:
Laws 2003, ch. 122, § 8-815; 2007, ch. 128, § 24.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, changed the statutory reference in Subsection B.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 8 - Duties and Powers of Trustee › Section 46A-8-817 - Distribution upon termination.

A. Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within thirty days after the proposal was sent, but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection.
B. Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses and taxes.
C. A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent:
(1) it was induced by improper conduct of the trustee; or
(2) the beneficiary, at the time of the release, did not know of the beneficiary's rights or of the material facts relating to the breach.
History:
Laws 2003, ch. 122, § 8-817.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees › Section 46A-10-1001 - Breach of trust.

A. A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.
B. To remedy a breach of trust that has occurred or may occur, the court may:
(1) compel the trustee to perform the trustee's duties;
(2) enjoin the trustee from committing a breach of trust;
(3) compel the trustee to redress a breach of trust by paying money, restoring property or other means;
(4) order a trustee to account;
(5) appoint a special fiduciary to take possession of the trust property and administer the trust;
(6) suspend the trustee;
(7) remove the trustee as provided in Section 46A-7-706 NMSA 1978;
(8) reduce or deny compensation to the trustee;
(9) subject to Section 46A-10-1012 NMSA 1978, void an act of the trustee, impose a lien or a constructive trust on trust property or trace trust property wrongfully disposed of and recover the property or its proceeds; or
(10) order any other appropriate relief.
History:
Laws 2003, ch. 122, § 10-1001; 2007, ch. 128, § 25.
ANNOTATIONS
The 2007 amendment,
effective July 1, 2007, added Subsection B.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees › Section 46A-10-1003 - Damages in absence of breach.

A. A trustee is accountable to an affected beneficiary for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust.
B. Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit.
History:
Laws 2003, ch. 122, § 10-1003.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
A trustee is prohibited from profiting from the trust.
— A trustee may not retain any personal profit, whether or not there has been a breach of the duty of loyalty. The New Mexico Uniform Trust Code requires that a trustee disgorge all personal profit. Miller v. Bank of America, 2015-NMSC-022,
rev'g
2014-NMCA-053, 326 P.3d 20.
Where trustee bank, in a breach of its duty of care, invested trust assets in an unproductive commercial building in direct violation of express trust provisions, which caused an $894,000 loss in the value of the trust, arranged loans to the trust from the bank's own affiliates that were secured by mortgages on the building, and collected loan fees and mortgage interest from the trust in breach of its duty of loyalty, and where the district court awarded $171,000 in damages without discussing the actual method of calculation for the restoration award, the court of appeals reversed the district court and awarded plaintiffs $894,000 to restore the value of the trust, but did not award disgorgement damages, holding that an award of restoration damages and disgorgement damages would amount to a double recovery. The New Mexico supreme court reversed the court of appeals, holding that both restoration and disgorgement damages were required under the New Mexico Uniform Trust Code, and remanded the case back to the district court for a recalculation of damages because it was unclear whether disgorgement damages, the mortgage interest and loan fees paid to the trustee, were included in the calculation of the restoration award. Miller v. Bank of America, 2015-NMSC-022,
rev'g
2014-NMCA-053, 326 P.3d 20.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees › Section 46A-10-1004 - Attorney fees and costs.

In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.
History:
Laws 2003, ch. 122, § 10-1004.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
Award of attorney fees is discretionary with the district court.
— An award of attorney fees is a matter within the district court's discretion. Khalsa v. Puri, 2015-NMCA-027, cert. denied, 2015-NMCERT-001.
Where defendant claimed that plaintiff waived an award of attorney fees by failing to request attorney fees in the pleadings, the claim that a request for attorney fees is waived unless it is pleaded is not supported by authority; the district court did not abuse its discretion in awarding attorney fees based on the years of litigation over numerous issues, plaintiff's failure to present any direct evidence to support her claims, and in defendants' success in defending the claims. Khalsa v. Puri, 2015-NMCA-027, cert. denied, 2015-NMCERT-001.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees › Section 46A-10-1005 - Limitation of action against trustee.

A. A beneficiary shall not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding.
B. A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence.
C. If Subsection A of this section does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within five years after the first to occur of:
(1) the removal, resignation or death of the trustee;
(2) the termination of the beneficiary's interest in the trust; or
(3) the termination of the trust.
History:
Laws 2007, ch. 128, § 27.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees › Section 46A-10-1006 - Reliance on trust instrument.

A trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.
History:
Laws 2003, ch. 122, § 10-1005; recompiled as § 46A-10-1006 by Laws 2007, ch. 128, § 30.
ANNOTATIONS
Recompilation.
— Laws 2007, ch. 128, § 30 recompiled former 46A-10-1005 NMSA 1978, as enacted by Laws 2003, ch. 122, § 10-1005, as 46A-10-1006 NMSA 1978, effective July 1, 2007.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).
2023 New Mexico Statutes › Chapter 46A - Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees › Section 46A-10-1007 - Event affecting administration or distribution.

If the happening of an event, including marriage, divorce, performance of educational requirements or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge.
History:
Laws 2003, ch. 122, § 10-1006; recompiled as § 46A-10-1007 by Laws 2007, ch. 128, § 30.
ANNOTATIONS
Recompilation.
— Laws 2007, ch. 128, § 30 recompiled former 46A-10-1006 NMSA 1978, as enacted by Laws 2003, ch. 122, § 10-1006, as 46A-10-1007 NMSA 1978, effective July 1, 2007.
Law reviews.
— For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).