reglab/statecodes huggingface dataset:
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-2 - Powers of a power holder.

§ 36C-8A-2. Powers of a power holder.
(a) The terms of a trust may confer upon a power holder a power to direct or consent to a duty that would normally be required of a trustee, including, but not limited to, a power to direct or consent to the following:
(1) Investments, including any action relating to investment of all or any one or more of the trust assets that a trustee may take under this Chapter.
(2) Discretionary distributions of trust assets, including distributions to one or more beneficiaries, distribution of one of more trust assets, and termination of the trust by distribution of all of the trust assets.
(3) Any other matter regarding trust administration, including the transfer of the principal place of administration of the trust.
(b) The terms of a trust may also confer upon a power holder any other power, including, but not limited to, the power to do the following:
(1) Modify or amend the trust to do any of the following:
a. Achieve favorable tax status under applicable law.
b. Take advantage of laws governing restraints on alienation or other State laws restricting the terms of the trust, distribution of trust property, or the administration of the trust.
(2) Remove and appoint trustees and power holders.
(3) Increase or decrease the interests of any beneficiary.
(4) Grant a power of appointment to one or more beneficiaries of the trust or modify the terms of or terminate a power of appointment granted to a beneficiary by the governing instrument, except that a grant or modification of a power of appointment shall not grant a beneficial interest to any of the following:
a. Any individual or class of individuals not specifically provided for in the trust instrument.
b. The person having the power to grant, modify, or terminate the power of appointment.
c. The estate and creditors of the person having the power to grant, modify, or terminate the power of appointment.
(5) Change the governing law of the trust.
(c) A power holder may exercise any further power appropriate to the exercise or nonexercise of a power granted to the power holder under subsections (a) and (b) of this section.
(d) The powers granted to a power holder under this section are subject to the same provisions of G.S. 36C-8-814 regarding discretionary powers and tax savings that are applicable to a trustee in a like position and under similar circumstances. (2012-18, s. 3.4; 2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-3 - Duty and liability of power holder.

§ 36C-8A-3. Duty and liability of power holder.
(a) Except as otherwise provided in subsection (f) of this section, a power holder is a fiduciary with respect to the exercise or nonexercise of a power and has the same duty and liability as the following:
(1) If the power is not held jointly with the trustee or another power holder, as a sole trustee in a like position and under similar circumstances.
(2) If the power is held jointly with the trustee or another power holder, as a cotrustee in a like position and under similar circumstances.
(b) Repealed by Session Laws 2021-85, s. 2(c), effective July 8, 2021, and applicable to trusts created before, on, or after that date.
(c) The provisions regarding the same duty and liability of a power holder as a trustee in a like position and under similar circumstances include all of the following:
(1) The provisions of Article 8 of this Chapter regarding the duties of a trustee.
(2) The provisions of G.S. 36C-10-1001 through G.S. 36C-10-1012 regarding liability of trustees and rights of third persons dealing with trustees.
(3) The provisions of Article 9 of this Chapter regarding the uniform prudent investor rule.
(4) The provisions of G.S. 36C-7-703 regarding cotrustees.
(d) Subject to subsection (e) of this section, a power holder shall provide information to a trustee or another power holder to the extent the information is reasonably related both to the powers and duties of a power holder and the powers and duties of the trustee or the other power holder. A trustee or other power holder that acts in reliance on information provided by the power holder is not liable for breach of trust to the extent the breach resulted from the reliance, unless by so acting the trustee or the other power holder engages in intentional misconduct.
(e) A power holder does not have a duty to monitor a trustee or another power holder or inform or give advice to a settlor, beneficiary, trustee, or another power holder concerning an instance in which the power holder might have acted differently than a trustee or another power holder. By taking the action described in this subsection, the power holder does not assume the duty excluded under this subsection.
(f) The terms of a trust may provide that a power holder is a nonfiduciary with respect to the exercise or nonexercise of a power, including the power to achieve the settlor's tax objectives under the Internal Revenue Code. Unless the terms of a trust provide otherwise, the power to remove and appoint a trustee or power holder shall be deemed to be held in a nonfiduciary capacity. (2012-18, s. 3.4; 2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-4 - Duty and liability of trustee.

§ 36C-8A-4. Duty and liability of trustee.
(a) If the terms of a trust confer upon a power holder the power to direct certain actions of the trustee, the trustee shall act in accordance with the direction and is not liable, individually or as a fiduciary, for any loss resulting directly or indirectly from compliance with the direction, unless compliance with the direction constitutes intentional misconduct on the part of the trustee.
(b) If the terms of a trust confer upon the power holder the power to consent to certain actions of the trustee, and the power holder does not provide consent within a reasonable time after the trustee has made a timely request for the power holder's consent, the trustee is not liable, individually or as a fiduciary, for any loss resulting directly or indirectly from the trustee's failure to take any action that required the power holder's consent.
(c) If the terms of a trust confer upon a power holder a power other than the power to direct or to consent to the actions of the trustee described in G.S. 36C-8A-2(a), the trustee is not liable, individually or as a fiduciary, for any loss resulting directly or indirectly from the exercise or nonexercise of the power.
(d) A trustee does not have a duty to monitor a power holder or inform or give advice to a settlor, beneficiary, trustee, or power holder concerning an instance in which the trustee might have acted differently from a power holder. By taking an action described in this subsection, a trustee does not assume a duty excluded by this subsection.
(e) Subject to subsection (d) of this section, a trustee shall provide information to a power holder to the extent the information is reasonably related both to the powers and duties of the trustee and the powers and duties of the power holder. A power holder that acts in reliance on information provided by a trustee is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the power holder engages in intentional misconduct. (2012-18, s. 3.4; 2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-4.1 - Limitations of actions against power holder for breach of trust.

§ 36C-8A-4.1. Limitations of actions against power holder for breach of trust.
In an action against a power holder for breach of trust, the same limitations of actions apply to the power holder that apply under G.S. 36C-10-1005 to an action for breach of trust against a trustee in a like position and under similar circumstances. (2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-4.2 - Defenses in action against power holder.

§ 36C-8A-4.2. Defenses in action against power holder.
In an action against a power holder for breach of trust, the power holder may assert the same defenses that a trustee in a like position and under similar circumstances could assert in an action for breach of trust against the trustee, including the following:
(1) Reasonable reliance on the terms of a trust pursuant to G.S. 36C-9-901(b) and G.S. 36C-10-1006.
(2) Reasonable care in ascertaining the happening of an event affecting the administration or distribution of a trust pursuant to G.S. 36C-10-1007.
(3) Beneficiary's consent, release, or ratification pursuant to G.S. 36C-10-1009. (2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-5 - Compensation and reimbursement of expenses of power holder.

§ 36C-8A-5. Compensation and reimbursement of expenses of power holder.
A power holder as a fiduciary is entitled to compensation and reimbursement of expenses as provided in G.S. 32-59. (2012-18, s. 3.4.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-6 - Jurisdiction over power holder.

§ 36C-8A-6. Jurisdiction over power holder.
(a) By accepting appointment to serve as a power holder with respect to a trust having its principal place of business in this State, or by moving the principal place of administration to this State, the power holder submits personally to the jurisdiction of the courts of this State regarding any matter involving action or inaction of the power holder.
(b) This section does not preclude other methods of obtaining jurisdiction over a power holder. (2012-18, s. 3.4.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-7 - Accepting or declining the appointment as power holder.

§ 36C-8A-7. Accepting or declining the appointment as power holder.
(a) A person designated as a power holder accepts the appointment to serve as a power holder:
(1) By substantially complying with a method of acceptance provided in the terms of a trust; or
(2) If the terms of a trust do not provide a method or the method provided in the terms of a trust is not expressly made exclusive, by exercising powers or performing duties as a power holder or otherwise indicating acceptance of the appointment to serve as a power holder.
(b) A person designated as a power holder may reject the appointment to serve as a power holder. A trustee may give written notice to a power holder requesting acceptance of the appointment as power holder. A power holder who does not accept such appointment within 120 days after receipt of such notice is considered to have rejected the appointment to serve as a power holder. (2012-18, s. 3.4.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-8 - Vacancy in the office of the power holder.

§ 36C-8A-8. Vacancy in the office of the power holder.
(a) If a vacancy occurs in the office of the power holder because the power holder fails or ceases to act for any reason, all of the following apply:
(1) If one or more power holders remain in office, a vacancy in the office of the power holder need not be filled.
(2) If the terms of the trust provide for a successor to the power holder, the person designated by the terms of the trust or appointed under the terms of the trust shall act as the successor power holder.
(3) During the time when a vacancy occurs, the trustee shall be vested with any fiduciary power or duty conferred upon the power holder by the terms of the trust that are described in G.S. 36C-8A-2(a).
(4) The court may appoint a power holder whenever the court considers the appointment necessary for the administration of the trust.
(b) A successor power holder shall succeed to all the powers and is subject to the duties and liabilities that were imposed upon the original power holder, unless a contrary intent appears from the governing instrument. (2012-18, s. 3.4; 2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-9 - More than one power holder.

§ 36C-8A-9. More than one power holder.
When there is more than one power holder authorized to act, and they are unable to reach a unanimous decision, they may act by majority decision. Unanimity is required when only two are authorized to act. (2012-18, s. 3.4.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-10 - Resignation of power holder.

§ 36C-8A-10. Resignation of power holder.
(a) A power holder may resign upon either of the following conditions:
(1) Upon at least 30 days' notice in writing to the qualified beneficiaries, the settlor, if living, and all trustees.
(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. (2012-18, s. 3.4.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-11 - Removal of power holder.

§ 36C-8A-11. Removal of power holder.
(a) For the reasons set forth in subsection (b) of this section, the settlor of an irrevocable trust, a trustee of an irrevocable trust, or a beneficiary of an irrevocable trust may request the court to remove a power holder, or a power holder may be removed by the court on its own initiative.
(b) The court may remove a power holder under any of the following circumstances:
(1) The power holder has committed a serious breach of trust.
(2) Lack of cooperation with the trustee substantially impairs the administration of the trust.
(3) Because of unfitness, unwillingness, or a persistent failure of the power holder to exercise effectively the duties and powers conferred upon the power holder the court determines that removal of the power holder best serves the interests of the beneficiaries.
(4) There has been a substantial change of circumstances, the court finds that removal of the power holder best serves the interests of all of the beneficiaries and is consistent with a material purpose of the trust, and a suitable successor power holder is available.
(c) Pending a final decision on a request to remove a power holder, or in lieu of or in addition to removing a power holder, the court may order appropriate relief under G.S. 36C-10-1001(b) as may be necessary to protect the trust property or the interests of the beneficiaries. (2012-18, s. 3.4.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8A - Powers, Duties, and Liability of a Power Holder Other Than a Trustee; Duty and Liability of a Trustee With Respect to Power Holder's Actions. › § 36C-8A-12 - Power holder's bond.

§ 36C-8A-12. Power holder's bond.
(a) A bond shall be required for the performance of the power holder's duty only if the terms of a trust require the power holder to provide a bond.
(b) If no bond is required, the provisions of G.S. 36C-7-702(a)(3) and (4) applicable to a trustee apply to the power holder, but in no event shall a bond be required of a power holder if the terms of a trust require otherwise.
(c) If a bond is required, the provisions of G.S. 36C-7-702(b) and (c) applicable to a trustee apply to the power holder. (2021-85, s. 2(c).)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-2 - Definitions.

§ 36C-8B-2. Definitions.
The following definitions apply to this Article, unless the context clearly requires otherwise:
(1) Authorized fiduciary. – A trustee or other fiduciary, other than a settlor, that has discretion to distribute or direct a trustee to distribute part or all of the principal of the first trust to one or more current beneficiaries. The term also includes a special fiduciary appointed under G.S. 36C-8B-9 or a special-needs fiduciary under G.S. 36C-8B-13.
(2) Current beneficiary. – A beneficiary that, on the date the beneficiary's qualification is determined, is a distributee or permissible distributee of trust income or principal.
(3) Decanting power. – The power of an authorized fiduciary under this Article to distribute property of a first trust to one or more second trusts or to modify the terms of the first trust.
(4) First trust. – A trust over which an authorized fiduciary may exercise the decanting power.
(5) Second trust. – A first trust after modification pursuant to this Article or a trust to which a distribution of property from a first trust is or may be made pursuant to this Article. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-3 - Scope.

§ 36C-8B-3. Scope.
(a) Except as otherwise provided in this section, this Article applies to an express trust that is irrevocable or revocable by the settlor only with the consent of the trustee or a person holding an adverse interest.
(b) This Article shall not apply to a trust held solely for charitable purposes as described in G.S. 36C-4-405(a).
(c) Subject to G.S. 36C-8B-15, a trust instrument may restrict or prohibit exercise of the decanting power.
(d) This Article shall not limit the power of a trustee, power holder, or other person to distribute or appoint property in further trust or to modify a trust under the trust instrument, law of this State other than this Article, common law, a court order, or a nonjudicial settlement agreement.
(e) This Article shall not affect the ability of a settlor to provide in a trust instrument for the distribution of the trust property or appointment in further trust of the trust property or for modification of the trust instrument. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-4 - Fiduciary duty.

§ 36C-8B-4. Fiduciary duty.
(a) In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust.
(b) This Article does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the applicability of this Article.
(c) Except as otherwise provided in the terms of the first trust, for purposes of this Article, G.S. 36C-8-801, and G.S. 36C-8-802(a), the terms of the first trust shall be deemed to include the decanting power. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-5 - Application; governing law.

§ 36C-8B-5. Application; governing law.
This Article shall apply to a trust that meets any of the following criteria:
(1) The trust has its principal place of administration in this State, including a trust that has had its principal place of administration changed to this State.
(2) The trust provides by its trust instrument that it is governed by the law of this State or is governed by the law of this State for any of the following purposes:
a. Administration, including administration of a trust that has had its governing law for purposes of administration changed to this State.
b. Construction of terms of the trust.
c. Determination of the meaning or effect of terms of the trust. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-6 - Reasonable reliance.

§ 36C-8B-6. Reasonable reliance.
A trustee or other person that reasonably relies on the validity of the exercise of a decanting power under this Article, law of this State other than this Article, or the exercise of a similar power under the law of this State or another jurisdiction shall not be liable to any person for any action or failure to act as a result of the reliance. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-7 - Notice; exercise of decanting power.

§ 36C-8B-7. Notice; exercise of decanting power.
(a) 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.
(b) Except as otherwise provided in this section, an authorized fiduciary shall give written notice of the intended exercise of the decanting power at least 60 days prior to the effective date of the exercise of the decanting power to all of the following:
(1) Any settlor as to whom the second trust would be a grantor trust.
(2) Each qualified beneficiary of the first trust.
(3) Each person that currently has the right to remove or replace the authorized fiduciary.
(4) Each other fiduciary of the first trust.
(c) The notice required pursuant to subsection (b) of this section shall meet all of the following requirements:
(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.
(4) Include a copy of all second trusts.
(d) The decanting power may be exercised before expiration of the notice period under subsection (b) of this section if all persons entitled to receive notice waive the period in a signed written instrument.
(e) The receipt of notice, waiver of the notice period, or expiration of the notice period shall not affect the right of a person to file an application pursuant to G.S. 36C-8B-9 asserting any of the following:
(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.
(2) The provisions of G.S. 36C-8B-22 apply to the exercise of the decanting power.
(f) An exercise of the decanting power shall not be ineffective because of the failure to give notice to one or more persons pursuant to subsection (b) of this section if the authorized fiduciary acted with reasonable care to comply with subsection (b) of this section. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-9 - Court involvement.

§ 36C-8B-9. Court involvement.
(a) An authorized fiduciary, a beneficiary, or a person entitled to notice under G.S. 36C-8B-7(b) may commence a proceeding for any of the following purposes:
(1) To approve or disapprove a proposed exercise of the authorized fiduciary's decanting power.
(2) To appoint a special fiduciary to exercise the decanting power.
(b) Nothing in this section shall affect the right of a person to file an action in the superior court division of the General Court of Justice for declaratory relief under Article 26 of Chapter 1 of the General Statutes, including, but not limited to, an action to determine the extent to which G.S. 36C-8B-22 applies to a prior exercise of the decanting power. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-10 - Formalities.

§ 36C-8B-10. Formalities.
An exercise of the decanting power shall be made in a written instrument signed by an authorized fiduciary. The signed written instrument shall identify, directly or by reference to the notice required by G.S. 36C-8B-7, 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. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-15 - Trust limitation on decanting.

§ 36C-8B-15. Trust limitation on decanting.
(a) An authorized fiduciary shall not exercise the decanting power to the extent the terms of the first trust expressly prohibit exercise of the decanting power or 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 shall be subject to any restriction in the terms of the first trust that expressly applies to the exercise of the following powers:
(1) The decanting power, and any such restriction contained in the terms of the first trust, shall be included in the terms of the second trust.
(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 beneficiary's interest shall 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 permits the authorized fiduciary or another person to modify the terms of the first trust or to distribute part or all of the principal of the first trust to another trust. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-16 - Change in compensation.

§ 36C-8B-16. Change in compensation.
(a) If a first trust specifies an authorized fiduciary's compensation, the fiduciary shall not exercise the decanting power to increase the fiduciary's compensation above the specified compensation unless either of the following conditions is satisfied:
(1) All qualified beneficiaries of the second trust consent to the increase in a signed written instrument.
(2) The increase is approved by the clerk of superior court pursuant to G.S. 36C-2-203(a)(3).
(b) For the purposes of this section, a change in an authorized fiduciary's compensation which is incidental to other changes made by the exercise of the decanting power shall not be deemed an increase in the fiduciary's compensation. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-17 - Relief from liability and indemnification.

§ 36C-8B-17. Relief from liability and indemnification.
(a) Except as otherwise provided in this section, a second trust shall not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first trust.
(b) A second trust 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 shall not reduce fiduciary liability in the aggregate; provided, however, a second trust 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 the laws of this State other than this Article. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-18 - Removal or replacement of authorized fiduciary.

§ 36C-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 granting another person power to remove or replace the fiduciary unless one or more of the following occur:
(1) The person holding the power consents to the modification in a signed written instrument and the modification applies only to the person holding the power.
(2) The person holding the power and the qualified beneficiaries of the second trust consent to the modification in a signed written instrument and the modification grants a substantially similar power to another person.
(3) A court approves the modification and the modification grants a substantially similar power to another person. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-20 - Duration of second trust.

§ 36C-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. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-21 - Need to distribute not required.

§ 36C-8B-21. Need to distribute not required.
An authorized fiduciary may exercise the decanting power whether or not under the first trust's discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of exercise. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-22 - Saving provision.

§ 36C-8B-22. Saving provision.
(a) If exercise of the decanting power would be effective under this Article except that the second trust in part does not comply with this Article, the exercise of the decanting 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 which is not permitted under this Article is void to the extent necessary to comply with this Article.
(2) A provision required by this Article to be in the second trust which is not contained in the second trust is deemed to be included in the second trust to the extent necessary to comply with this Article.
(b) If a trustee of 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 fiduciary's duties. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-24 - Terms of second trust.

§ 36C-8B-24. Terms of second trust.
A reference in this Chapter to a trust instrument or terms of the trust includes a second trust and the terms of the second trust. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-25 - Settlor.

§ 36C-8B-25. Settlor.
(a) For the purposes of the laws of this State other than this Article and subject to subsection (b) of this section, a settlor of a first trust shall be deemed to be the settlor 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 settlor intent with respect to a second trust, the intent of a settlor of the first trust, a settlor of the second trust, and the authorized fiduciary may be considered. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 8B - North Carolina Uniform Trust Decanting Act. › § 36C-8B-26 - Later-discovered property.

§ 36C-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. (2017-121, s. 1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-901 - Prudent investor rule; applicability.

§ 36C-9-901. Prudent investor rule; applicability.
(a) Except as otherwise provided in subsection (b) of this section, a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in this Article.
(b) The prudent investor rule is a default rule and may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust that govern or direct investments in a manner inconsistent with this Article. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the terms of the trust.
(c) The following terms or comparable language in a trust, unless otherwise limited or modified, authorize any investment or strategy permitted under this Article: "Chapter 36A", "investments in accordance with Article 15 of Chapter 36A", "investments in accordance with Article 9 of Chapter 36C", "investments permissible by law for investment of trust funds", "legal investments", "authorized investments", "using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital", "prudent man rule", "prudent trustee rule", "prudent person rule", and "prudent investor rule". This Article also applies where a trust contains no investment standard.
(d) This Article does not apply to:
(1) Unless the trust provides otherwise by specific reference to this Article:
a. Trusts under any federal employee retirement income security statute or other retirement or pension trusts;
b. Trusts that are created by legislative act;
c. Trusts that are created by or under premarital or postmarital agreements, divorce settlements, settlements of other proceedings or disputes;
d. Transfers under a Uniform Transfers to Minors Act;
e. Transfers under a Uniform Custodial Trust Act; or
f. Honorary trusts, trusts for pets, and trusts for cemetery lots.
(2) Trusts imposed or required under another Chapter of the General Statutes or by rule in which the investment of the trust funds is regulated by the other Chapter or by rule, unless a provision of the other chapter or the rule provides otherwise by a specific reference to this Article. (1999-215, s. 1; 2001-267, s. 7; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-902 - Standard of care; portfolio strategy; risk and return objectives.

§ 36C-9-902. Standard of care; portfolio strategy; risk and return objectives.
(a) A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
(b) A trustee's investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
(c) Among circumstances that a trustee shall consider in investing and managing trust assets are any of the following that are relevant to the trust or its beneficiaries:
(1) General economic conditions;
(2) The possible effect of inflation or deflation;
(3) The expected tax consequences of investment decisions or strategies;
(4) The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;
(5) The expected total return from income and the appreciation of capital;
(6) Other resources of the beneficiaries known to the trustee;
(7) Needs for liquidity, regularity of income, and preservation or appreciation of capital; and
(8) An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.
(d) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.
(e) A trustee may invest in any kind of property or type of investment consistent with the standards of this Article. (1999-215, s. 1; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-903 - Diversification.

§ 36C-9-903. Diversification.
A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying. (1999-215, s. 1; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-903.1 - Duties as to life insurance.

§ 36C-9-903.1. Duties as to life insurance.
(a) Notwithstanding the provisions of this Article, the duties of a trustee with respect to acquiring or retaining a contract of insurance upon the life of the settlor, or the lives of the settlor and the settlor's spouse, do not include a duty (i) to determine whether any such contract is or remains a proper investment; (ii) to exercise policy options, including investment options, available under any such contract; or (iii) to diversify any such contract. A trustee is not liable to the beneficiaries of the trust or to any party for any loss arising from the absence of those duties upon the trustee.
(b) The trustee of a trust described under subsection (a) of this section established prior to October 1, 1995, shall notify the settlor in writing that, unless the settlor provides written notice to the contrary to the trustee within 60 days of the trustee's notice, the provisions of subsection (a) of this section shall apply to the trust. Subsection (a) of this section shall not apply if, within 60 days of the trustee's notice, the settlor notifies the trustee that subsection (a) of this section shall not apply. (2007-106, s. 37.1.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-904 - Duties at inception of trusteeship.

§ 36C-9-904. Duties at inception of trusteeship.
Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust, and with the requirements of this Chapter. (1999-215, s. 1; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-905 - Reviewing compliance.

§ 36C-9-905. Reviewing compliance.
Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight. (1999-215, s. 1; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-906 - Effect on charitable remainder trusts.

§ 36C-9-906. Effect on charitable remainder trusts.
Nothing in this Article shall prevent the application of Article 4B of this Chapter to a "charitable remainder trust" as defined in G.S. 36C-4B-3(1). (1999-215, s. 1; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 9 - Uniform Prudent Investor Act. › § 36C-9-907 - Short title.

§ 36C-9-907. Short title.
This Article may be cited as the "North Carolina Uniform Prudent Investor Act." (1999-215, s. 1; 2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees. › § 36C-10-1001 - Remedies for breach of trust.

§ 36C-10-1001. Remedies for breach of trust.
(a) A violation by a trustee of a duty the trustee owes under a trust 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 G.S. 36C-7-706;
(8) Reduce or deny compensation to the trustee;
(9) Subject to G.S. 36C-10-1012, 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.
(c) The court may, for cause shown, relieve a trustee from liability for any breach of trust, or wholly or partly excuse a trustee who has acted honestly and reasonably from liability for a breach of trust. (2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees. › § 36C-10-1002 - Damages for breach of trust.

§ 36C-10-1002. Damages for breach of trust.
(a) A trustee who commits a breach of trust is liable for the greater of:
(1) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or
(2) The profit the trustee made by reason of the breach.
(b) Except as otherwise provided in this subsection, if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received. (2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees. › § 36C-10-1003 - Liability in absence of breach.

§ 36C-10-1003. Liability in absence of breach.
(a) A trustee is accountable for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust. Nothing in this section limits a trustee's right to compensation under G.S. 36C-7-708 or payments allowed under G.S. 36C-8-802(f).
(b) Absent a breach of trust, a trustee is not liable for a loss or depreciation in the value of trust property or for not having made a profit. (2005-192, s. 2.)
2023 North Carolina General Statutes › Chapter 36C - North Carolina Uniform Trust Code › Article 10 - Liability of Trustees and Rights of Persons Dealing with Trustees. › § 36C-10-1004 - Attorneys' fees and costs.

§ 36C-10-1004. Attorneys' fees and costs.
In a judicial proceeding involving the administration of a trust, the court may award costs and expenses, including reasonable attorneys' fees, as provided in the General Statutes, except that, in the case of a proceeding to establish the validity of a trust under Article 4C of this Chapter, the court shall allow for attorneys' fees for the attorneys of a party contesting the proceeding only if the court finds the party had reasonable grounds for contesting the proceeding. (2005-192, s. 2; 2021-53, s. 1.3.)