reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-302 - Intent to exercise; determining intent from residuary clause.

A. As used in this section:
(1) "residuary clause" does not include a residuary clause containing a blanket-exercise clause or a specific-exercise clause; and
(2) "will" includes a codicil and a testamentary instrument that revises another will.
B. A residuary clause in a powerholder's will, or a comparable clause in the powerholder's revocable trust, manifests the powerholder's intent to exercise a power of appointment only if:
(1) the terms of the instrument containing the residuary clause do not manifest a contrary intent;
(2) the power is a general power exercisable in favor of the powerholder's estate;
(3) there is no gift-in-default clause or the gift-in-default clause is ineffective; and
(4) the powerholder did not release the power.
History:
Laws 2016, ch. 69, § 302.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-303 - Intent to exercise; after-acquired power.

Unless the terms of the instrument exercising a power of appointment manifest a contrary intent:
A. except as otherwise provided in Subsection B of this section, a blanket-exercise clause extends to a power acquired by the powerholder after executing the instrument containing the clause; and
B. if the powerholder is also the donor of the power, the clause does not extend to the power unless there is no gift-in-default clause or the gift-in-default clause is ineffective.
History:
Laws 2016, ch. 69, § 303.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-304 - Substantial compliance with donor-imposed formal requirement.

A powerholder's substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if:
A. the powerholder knows of and intends to exercise the power; and
B. the powerholder's manner of attempted exercise of the power does not impair a material purpose of the donor in imposing the requirement.
History:
Laws 2016, ch. 69, § 304.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-305 - Permissible appointment.

A. A powerholder of a general power of appointment that permits appointment to the powerholder or the powerholder's estate may make any appointment, including an appointment in trust or creating a new power of appointment, that the powerholder could make in disposing of the powerholder's own property.
B. A powerholder of a general power of appointment that permits appointment only to the creditors of the powerholder or of the powerholder's estate may appoint only to those creditors.
C. Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the powerholder of a nongeneral power may:
(1) make an appointment in any form, including an appointment in trust, in favor of a permissible appointee;
(2) create a general power in a permissible appointee;
(3) create a nongeneral power in any person to appoint to one or more of the permissible appointees of the original nongeneral power; or
(4) create a nongeneral power in a permissible appointee to appoint to one or more persons if the permissible appointees of the new nongeneral power include the permissible appointees of the original nongeneral power.
History:
Laws 2016, ch. 69, § 305; 2019, ch. 221, § 6.
ANNOTATIONS
The 2019 amendment,
effective July 1, 2019, provided that a powerholder of a nongeneral power may create a nongeneral power in a permissible appointee to appoint to one or more persons if the permissible appointees of the new nongeneral power include the permissible appointees of the original nongeneral power; and in Subsection C, added Paragraph C(4).
Applicability.
— Laws 2019, ch. 221, § 7, provided that the provisions of this act apply to:
A. a governing instrument created before, on or after July 1, 2019;
B. a judicial proceeding commenced on or after July 1, 2019; and
C. a judicial proceeding commenced before July 1, 2019, unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision does not apply and the previous law applies.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-306 - Appointment to deceased appointee or permissible appointee's descendant.

A. Subject to Sections 45-2-603 and 45-2-707 NMSA 1978, an appointment to a deceased appointee is ineffective.
B. Unless the terms of the instrument creating a power of appointment manifest a contrary intent, a powerholder of a nongeneral power may exercise the power in favor of, or create a new power of appointment in, a descendant of a deceased permissible appointee whether or not the descendant is described by the donor as a permissible appointee.
History:
Laws 2016, ch. 69, § 306.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-307 - Impermissible appointment.

A. Except as otherwise provided in Section 306 [46-11-306 NMSA 1978] of the Uniform Powers of Appointment Act, an exercise of a power of appointment in favor of an impermissible appointee is ineffective.
B. An exercise of a power of appointment in favor of a permissible appointee is ineffective to the extent the appointment is a fraud on the power.
History:
Laws 2016, ch. 69, § 307.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-308 - Selective allocation doctrine.

If a powerholder exercises a power of appointment in a disposition that also disposes of property the powerholder owns, the owned property and the appointive property must be allocated in the permissible manner that best carries out the powerholder's intent.
History:
Laws 2016, ch. 69, § 308.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-309 - Capture doctrine; disposition of ineffectively appointed property under general power.

To the extent a powerholder of a general power of appointment, other than a power to withdraw property from, revoke or amend a trust, makes an ineffective appointment:
A. the gift-in-default clause controls the disposition of the ineffectively appointed property; or
B. if there is no gift-in-default clause or to the extent the clause is ineffective, the ineffectively appointed property:
(1) passes to:
(a) the powerholder if the powerholder is a permissible appointee and is living; or
(b) if the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or
(2) if there is no taker under Paragraph (1) of this subsection, passes under a reversionary interest to the donor or the donor's transferee or successor in interest.
History:
Laws 2016, ch. 69, § 309.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-310 - Disposition of unappointed property under released or unexercised general power.

To the extent a powerholder releases or fails to exercise a general power of appointment other than a power to withdraw property from, revoke or amend a trust:
A. the gift-in-default clause controls the disposition of the unappointed property; or
B. if there is no gift-in-default clause or to the extent the clause is ineffective:
(1) except as otherwise provided in Paragraph (2) of this subsection, the unappointed property passes to:
(a) the powerholder if the powerholder is a permissible appointee and is living; or
(b) if the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or
(2) to the extent the powerholder released the power, or if there is no taker under Paragraph (1) of this subsection, the unappointed property passes under a reversionary interest to the donor or the donor's transferee or successor in interest.
History:
Laws 2016, ch. 69, § 310.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-311 - Disposition of unappointed property under released or unexercised nongeneral power.

To the extent a powerholder releases, ineffectively exercises or fails to exercise a nongeneral power of appointment:
A. the gift-in-default clause controls the disposition of the unappointed property; or
B. if there is no gift-in-default clause or to the extent that the clause is ineffective, the unappointed property:
(1) passes to the permissible appointees if:
(a) the permissible appointees are defined and limited; and
(b) the terms of the instrument creating the power do not manifest a contrary intent; or
(2) if there is no taker under Paragraph (1) of this subsection, passes under a reversionary interest to the donor or the donor's transferee or successor in interest.
History:
Laws 2016, ch. 69, § 311.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-312 - Disposition of unappointed property if partial appointment to taker in default.

Unless the terms of the instrument creating or exercising a power of appointment manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share fully in unappointed property.
History:
Laws 2016, ch. 69, § 312.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-313 - Appointment to taker in default.

If a powerholder makes an appointment to a taker in default of appointment and the appointee would have taken the property under a gift-in-default clause had the property not been appointed, the power of appointment is deemed not to have been exercised and the appointee takes under the clause.
History:
Laws 2016, ch. 69, § 313.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 3 - EXERCISE OF POWER OF APPOINTMENT › Section 46-11-314 - Powerholder's authority to revoke or amend exercise.

A powerholder may revoke or amend an exercise of a power of appointment only to the extent that:
A. the powerholder reserves a power of revocation or amendment in the instrument exercising the power of appointment and, if the power is nongeneral, the terms of the instrument creating the power of appointment do not prohibit the reservation; or
B. the terms of the instrument creating the power of appointment provide that the exercise is revocable or amendable.
History:
Laws 2016, ch. 69, § 314.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-401 - Disclaimer.

As provided by the Uniform Disclaimer of Property Interests Act [45-2-1101 to 45-2-1116 NMSA 1978]:
A. a powerholder may disclaim all or part of a power of appointment; and
B. a permissible appointee, appointee or taker in default of appointment may disclaim all or part of an interest in appointive property.
History:
Laws 2016, ch. 69, § 401.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-402 - Authority to release.

A powerholder may release a power of appointment, in whole or in part, except to the extent that the terms of the instrument creating the power prevent the release.
History:
Laws 2016, ch. 69, § 402.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-403 - Method of release.

A powerholder of a releasable power of appointment may release the power in whole or in part:
A. by substantial compliance with a method provided in the terms of the instrument creating the power; or
B. if the terms of the instrument creating the power do not provide a method or the method provided in the terms of the instrument is not expressly made exclusive, by a record manifesting the powerholder's intent by clear and convincing evidence.
History:
Laws 2016, ch. 69, § 403.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-404 - Revocation or amendment of release.

A powerholder may revoke or amend a release of a power of appointment only to the extent that:
A. the instrument of release is revocable by the powerholder; or
B. the powerholder reserves a power of revocation or amendment in the instrument of release.
History:
Laws 2016, ch. 69, § 404.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-405 - Power to contract; presently exercisable power of appointment.

A powerholder of a presently exercisable power of appointment may contract:
A. not to exercise the power; or
B. to exercise the power if the contract when made does not confer a benefit on an impermissible appointee.
History:
Laws 2016, ch. 69, § 405.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-406 - Power to contract; power of appointment not presently exercisable.

A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if the powerholder:
A. is also the donor of the power; and
B. has reserved the power in a revocable trust.
History:
Laws 2016, ch. 69, § 406.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 4 - DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT › Section 46-11-407 - Remedy for breach of contract to appoint or not to appoint.

The remedy for a powerholder's breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.
History:
Laws 2016, ch. 69, § 407.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 5 - RIGHTS OF POWERHOLDER'S CREDITORS IN APPOINTIVE PROPERTY › Section 46-11-501 - Creditor claim; general power created by powerholder.

A. As used in this section, "power of appointment created by the powerholder" includes a power of appointment created in a transfer by another person to the extent that the powerholder contributed value to the transfer.
B. Appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of the powerholder or of the powerholder's estate to the extent provided in the Uniform Voidable Transactions Act [56-10-14 to 56-10-29 NMSA 1978].
C. Subject to Subsection B of this section, appointive property subject to a general power of appointment created by the powerholder is not subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent the powerholder irrevocably appointed the property in favor of a person other than the powerholder or the powerholder's estate.
D. Subject to Subsections B and C of this section, and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the creation of the power of appointment, appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of:
(1) the powerholder, to the same extent as if the powerholder owned the appointive property, if the power is presently exercisable; and
(2) the powerholder's estate, to the extent the estate is insufficient to satisfy the claim and subject to the right of a decedent to direct the source from which liabilities are paid, if the power is exercisable at the powerholder's death.
History:
Laws 2016, ch. 69, § 501.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 5 - RIGHTS OF POWERHOLDER'S CREDITORS IN APPOINTIVE PROPERTY › Section 46-11-502 - Creditor claim; general power not created by powerholder.

A. Except as otherwise provided in Subsection B of this section, appointive property subject to a general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of:
(1) the powerholder, to the extent that the powerholder's property is insufficient, if the power is presently exercisable; and
(2) the powerholder's estate, to the extent that the estate is insufficient, subject to the right of a decedent to direct the source from which liabilities are paid.
B. Subject to Subsection C of Section 504 [46-11-504 NMSA 1978] of the Uniform Powers of Appointment Act, a power of appointment created by a person other than the powerholder that is subject to an ascertainable standard relating to an individual's health, education, support or maintenance within the meaning of 26 U.S.C. Section 2041(b)(1)(A), as amended, or 26 U.S.C. Section 2514(c)(1), as amended, is treated for purposes of this article as a nongeneral power.
History:
Laws 2016, ch. 69, § 502.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 5 - RIGHTS OF POWERHOLDER'S CREDITORS IN APPOINTIVE PROPERTY › Section 46-11-503 - Power to withdraw.

A. For purposes of this article and except as otherwise provided in Subsection B of this section, a power to withdraw property from a trust is treated, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the property subject to the power to withdraw.
B. On the lapse, release or waiver of a power to withdraw property from a trust, the power is treated as a presently exercisable general power of appointment only to the extent that the value of the property affected by the lapse, release or waiver exceeds the greater of the amount specified in 26 U.S.C. Section 2041(b)(2), as amended, and 26 U.S.C. Section 2514(e), as amended, or the amount specified in 26 U.S.C. Section 2503(b), as amended.
History:
Laws 2016, ch. 69, § 503.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 5 - RIGHTS OF POWERHOLDER'S CREDITORS IN APPOINTIVE PROPERTY › Section 46-11-504 - Creditor claim; nongeneral power.

A. Except as otherwise provided in Subsections B and C of this section, appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder's estate.
B. Appointive property subject to a nongeneral power of appointment is subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent that the powerholder owned the property and, reserving the nongeneral power, transferred the property in violation of the Uniform Voidable Transactions Act [56-10-14 to 56-10-29 NMSA 1978].
C. If the initial gift in default of appointment is to the powerholder or the powerholder's estate, a nongeneral power of appointment is treated for purposes of this article as a general power.
History:
Laws 2016, ch. 69, § 504.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 6 - MISCELLANEOUS PROVISIONS › Section 46-11-601 - Uniformity of application and construction.

In applying and construing the Uniform Powers of Appointment Act, consideration shall be given to the need to promote uniformity of the act with respect to its subject matter among states that enact it.
History:
Laws 2016, ch. 69, § 601.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 6 - MISCELLANEOUS PROVISIONS › Section 46-11-602 - Relation to Electronic Signatures in Global and National Commerce Act.

The Uniform Powers of Appointment Act modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
History:
Laws 2016, ch. 69, § 602.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 11 - Uniform Powers of Appointment › Article 6 - MISCELLANEOUS PROVISIONS › Section 46-11-603 - Application to existing relationships.

A. Except as otherwise provided in the Uniform Powers of Appointment Act, on and after January 1, 2017:
(1) the Uniform Powers of Appointment Act applies to a power of appointment created before, on or after January 1, 2017;
(2) the Uniform Powers of Appointment Act applies to a judicial proceeding concerning a power of appointment commenced on or after January 1, 2017;
(3) the Uniform Powers of Appointment Act applies to a judicial proceeding concerning a power of appointment commenced before January 1, 2017 unless the court finds that application of a particular provision of the Uniform Powers of Appointment Act would interfere substantially with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision of the Uniform Powers of Appointment Act does not apply and the superseded law applies;
(4) a rule of construction or presumption provided in the Uniform Powers of Appointment Act applies to an instrument executed before January 1, 2017 unless there is a clear indication of a contrary intent in the terms of the instrument; and
(5) except as otherwise provided in Paragraphs (1) through (4) of this subsection, an action done before January 1, 2017 is not affected by the Uniform Powers of Appointment Act.
B. If a right is acquired, extinguished or barred on the expiration of a prescribed period that commenced under New Mexico law other than the Uniform Powers of Appointment Act before January 1, 2017, the law continues to apply to the right.
History:
Laws 2016, ch. 69, § 603.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727B made Laws 2016, ch. 69, §§ 101 through 603 and 724 effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-101 - Short title.

Sections 1-101 through 1-129 [46-12-101 to 46-12-129 NMSA 1978] of this act may be cited as the "Uniform Trust Decanting Act".
History:
Laws 2016, ch. 72, § 1-101.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-103 - Scope.

A. Except as otherwise provided in Subsections B and C of this section, the Uniform Trust Decanting Act 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. The Uniform Trust Decanting Act does not apply to a trust held solely for charitable purposes.
C. Subject to Section 1-115 [46-12-115 NMSA 1978] of the Uniform Trust Decanting Act, a trust instrument may restrict or prohibit exercise of the decanting power.
D. The Uniform Trust Decanting Act does not limit the power of a trustee, powerholder or other person to distribute or appoint property in further trust or to modify a trust under the trust instrument, New Mexico law other than the Uniform Trust Decanting Act, common law, a court order or a nonjudicial-settlement agreement.
E. The Uniform Trust Decanting Act does 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.
History:
Laws 2016, ch. 72, § 1-103.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-104 - 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. The Uniform Trust Decanting Act does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the applicability of the Uniform Trust Decanting Act.
C. Except as otherwise provided in a first-trust instrument, the terms of the first trust are, for purposes of the Uniform Trust Decanting Act, Section 46A-8-801 NMSA 1978 and Subsection A of Section 46A-8-802 NMSA 1978, deemed to include the decanting power.
History:
Laws 2016, ch. 72, § 1-104.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-105 - Application; governing law.

A. The Uniform Trust Decanting Act applies to a trust that:
(1) has its principal place of administration in New Mexico, including a trust whose principal place of administration has been changed to New Mexico; or
(2) provides by its trust instrument that it is governed by New Mexico law or is governed by New Mexico law for the purpose of:
(a) administration, including administration of a trust whose governing law for purposes of administration has been changed to New Mexico law;
(b) construction of terms of the trust; or
(c) determining the meaning or effect of terms of the trust.
B. Except as otherwise provided in the Uniform Trust Decanting Act, on and after January 1, 2017:
(1) the Uniform Trust Decanting Act applies to a trust created before, on or after January 1, 2017;
(2) the Uniform Trust Decanting Act applies to a judicial proceeding concerning a trust commenced on or after January 1, 2017;
(3) the Uniform Trust Decanting Act applies to a judicial proceeding concerning a trust commenced before January 1, 2017 unless the court finds that application of a particular provision of the Uniform Trust Decanting Act would interfere substantially with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision of the Uniform Trust Decanting Act does not apply and the superseded law applies;
(4) a rule of construction or presumption provided in the Uniform Trust Decanting Act applies to a trust instrument executed before January 1, 2017 unless there is a clear indication of a contrary intent in the terms of the instrument; and
(5) except as otherwise provided in Paragraphs (1) through (4) of this subsection, an action done before January 1, 2017 is not affected by the Uniform Trust Decanting Act.
C. If a right is acquired, extinguished or barred on the expiration of a prescribed period that commenced under New Mexico law other than the Uniform Trust Decanting Act before January 1, 2017, the law continues to apply to the right.
History:
Laws 2016, ch. 72, § 1-105.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-106 - Reasonable reliance.

A trustee or other person that reasonably relies on the validity of a distribution of part or all of the property of a trust to another trust, or a modification of a trust under the Uniform Trust Decanting Act, New Mexico law other than the Uniform Trust Decanting Act or the law of another jurisdiction, is not liable to any person for any action or failure to act as a result of the reliance.
History:
Laws 2016, ch. 72, § 1-106.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-107 - Notice; exercise of decanting power.

A. In this section, a notice period begins on the day notice is given under Subsection C of this section and ends fifty-nine days after the day notice is given.
B. Except as otherwise provided in the Uniform Trust Decanting Act, an authorized fiduciary may exercise the decanting power without the consent of any person and without court approval.
C. Except as otherwise provided in Subsection F of this section, an authorized fiduciary shall give notice in a record of the intended exercise of the decanting power not later than sixty days before the exercise to:
(1) each settlor of the first trust, if living or then in existence;
(2) each qualified beneficiary of the first trust;
(3) each holder of a presently exercisable power of appointment over any part or all of the first trust;
(4) each person that currently has the right to remove or replace the authorized fiduciary;
(5) each other fiduciary of the first trust;
(6) each fiduciary of the second trust; and
(7) the attorney general, if Subsection B of Section 1-114 [46-12-114 NMSA 1978] of the Uniform Trust Decanting Act applies.
D. An authorized fiduciary is not required to give notice under Subsection C of this section to a person that is not known to the fiduciary or is known to the fiduciary but cannot be located by the fiduciary after reasonable diligence.
E. A notice given under Subsection C of this section shall:
(1) specify the manner in which the authorized fiduciary intends to exercise the decanting power;
(2) specify the proposed effective date for exercise of the power;
(3) include a copy of the first-trust instrument; and
(4) include a copy of all second-trust instruments.
F. The decanting power may be exercised before expiration of the notice period specified in Subsection A of this section if all persons entitled to receive notice waive the period in a signed record.
G. The receipt of notice, waiver of the notice period or expiration of the notice period does not affect the right of a person to file an application under Section 1-109 [46-12-109 NMSA 1978] of the Uniform Trust Decanting Act asserting that:
(1) an attempted exercise of the decanting power is ineffective because it did not comply with the Uniform Trust Decanting Act or was an abuse of discretion or breach of fiduciary duty; or
(2) Section 1-122 [46-12-122 NMSA 1978] of the Uniform Trust Decanting Act applies to the exercise of the decanting power.
H. An exercise of the decanting power is not ineffective because of the failure to give notice to one or more persons under Subsection C of this section if the authorized fiduciary acted with reasonable care to comply with that subsection.
History:
Laws 2016, ch. 72, § 1-107.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-108 - Representation.

A. Notice to a person with authority to represent and bind another person under a first-trust instrument or the Uniform Trust Code [Chapter 46A NMSA 1978] has the same effect as notice given directly to the person represented.
B. Consent of or waiver by a person with authority to represent and bind another person under a first-trust instrument or the Uniform Trust Code is binding on the person represented unless the person represented objects to the representation before the consent or waiver otherwise would become effective.
C. A person with authority to represent and bind another person under a first-trust instrument or the Uniform Trust Code may file an application under Section 1-109 [46-12-109 NMSA 1978] of the Uniform Trust Decanting Act on behalf of the person represented.
D. A settlor shall not represent or bind a beneficiary under the Uniform Trust Decanting Act.
History:
Laws 2016, ch. 72, § 1-108.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-109 - Court involvement.

A. On application of an authorized fiduciary, a person entitled to notice under Subsection C of Section 1-107 [46-12-107 NMSA 1978] of the Uniform Trust Decanting Act, a beneficiary or, with respect to a charitable interest, the attorney general or other person that has standing to enforce the charitable interest, the court, may:
(1) provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under the Uniform Trust Decanting Act and consistent with the fiduciary duties of the authorized fiduciary;
(2) appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under the Uniform Trust Decanting Act and to exercise the decanting power;
(3) approve an exercise of the decanting power;
(4) determine that a proposed or attempted exercise of the decanting power is ineffective because:
(a) after applying Section 1-122 [46-12-122 NMSA 1978] of the Uniform Trust Decanting Act, the proposed or attempted exercise does not or did not comply with the Uniform Trust Decanting Act; or
(b) the proposed or attempted exercise would be or was an abuse of the fiduciary's discretion or a breach of fiduciary duty;
(5) determine the extent to which Section 1-122 of the Uniform Trust Decanting Act applies to a prior exercise of the decanting power;
(6) provide instructions to the trustee regarding the application of Section 1-122 of the Uniform Trust Decanting Act to a prior exercise of the decanting power; or
(7) order other relief to carry out the purposes of the Uniform Trust Decanting Act.
B. On application of an authorized fiduciary, the court may approve:
(1) an increase in the fiduciary's compensation under Section 1-116 [46-12-116 NMSA 1978] of the Uniform Trust Decanting Act; or
(2) a modification under Section 1-118 [46-12-118 NMSA 1978] of the Uniform Trust Decanting Act of a provision granting a person the right to remove or replace the fiduciary.
History:
Laws 2016, ch. 72, § 1-109.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-110 - Formalities.

An exercise of the decanting power shall be made in a record signed by an authorized fiduciary. The signed record shall, directly or by reference to the notice required by Section 1-107 [46-12-107 NMA 1978] of the Uniform Trust Decanting Act, identify the first trust and the second trust or trusts and state the property of the first trust being distributed to each second trust and the property, if any, that remains in the first trust.
History:
Laws 2016, ch. 72, § 1-110.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-112 - Decanting power under limited distributive discretion.

A. As used in this section, "limited distributive discretion" means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard.
B. An authorized fiduciary that has limited distributive discretion over the principal of the first trust for benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust.
C. Under this section and subject to Section 1-114 [46-12-114 NMSA 1978] of the Uniform Trust Decanting Act, a second trust may be created or administered under the law of any jurisdiction. Under this section, the second trusts, in the aggregate, shall grant each beneficiary of the first trust beneficial interests that are substantially similar to the beneficial interests of the beneficiary in the first trust.
D. A power to make a distribution under a second trust for the benefit of a beneficiary who is an individual is substantially similar to a power under the first trust to make a distribution directly to the beneficiary. A distribution is for the benefit of a beneficiary if:
(1) the distribution is applied for the benefit of the beneficiary;
(2) the beneficiary is under a legal disability or the trustee reasonably believes the beneficiary is incapacitated and the distribution is made as permitted under the Uniform Trust Code [Chapter 46A NMSA 1978]; or
(3) the distribution is made as permitted under the terms of the first-trust instrument and the second-trust instrument for the benefit of the beneficiary.
E. If an authorized fiduciary has limited distributive discretion over part but not all of the principal of a first trust, the fiduciary may exercise the decanting power provided by this section over that part of the principal over which the authorized fiduciary has limited distributive discretion.
History:
Laws 2016, ch. 72, § 1-112.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-114 - Protection of charitable interest.

A. As used in this section:
(1) "determinable charitable interest" means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event or after the passage of a specified time and that is unconditional or will be held solely for charitable purposes; and
(2) "unconditional" means not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the United States Internal Revenue Code of 1986, as amended, on the date of the distribution if the charitable organization meets the requirement on the date of determination.
B. If a first trust contains a determinable charitable interest, the attorney general has the rights of a qualified beneficiary and may represent and bind the charitable interest.
C. If a first trust contains a charitable interest, the second trust or trusts shall not:
(1) diminish the charitable interest;
(2) diminish the interest of an identified charitable organization that holds the charitable interest;
(3) alter any charitable purpose stated in the first-trust instrument; or
(4) alter any condition or restriction related to the charitable interest.
D. If there are two or more second trusts, the second trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of Subsection C of this section.
E. If a first trust contains a determinable charitable interest, the second trust or trusts that include a charitable interest pursuant to Subsection C of this section shall be administered under New Mexico law unless:
(1) the attorney general, after receiving notice under Section 1-107 [46-12-107 NMSA 1978] of the Uniform Trust Decanting Act, fails to object in a signed record delivered to the authorized fiduciary within the notice period;
(2) the attorney general consents in a signed record to the second trust or trusts being administered under the law of another jurisdiction; or
(3) the court approves the exercise of the decanting power.
F. The Uniform Trust Decanting Act does not limit the powers and duties of the attorney general under New Mexico law other than that act.
History:
Laws 2016, ch. 72, § 1-114.
ANNOTATIONS
Cross references.
— For the federal Internal Revenue Code of 1986,
see
26 U.S.C. § 1.
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-115 - Trust limitation on decanting.

A. An authorized fiduciary shall not exercise the decanting power to the extent that the first-trust instrument expressly prohibits exercise of:
(1) the decanting power; or
(2) a power granted by state law to the fiduciary to distribute part or all of the principal of the trust to another trust.
B. Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of:
(1) the decanting power; or
(2) a power granted by state law to a fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.
C. A general prohibition of the amendment or revocation of a first trust, a spendthrift clause or a clause restraining the voluntary or involuntary transfer of a beneficiary's interest does not preclude exercise of the decanting power.
D. Subject to Subsections A and B of this section, an authorized fiduciary may exercise the decanting power provided by the Uniform Trust Decanting Act even if the first-trust instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part or all of the principal of the first trust to another trust.
E. If a first-trust instrument contains an express prohibition described in Subsection A of this section or an express restriction described in Subsection B of this section, the provision shall be included in the second-trust instrument.
History:
Laws 2016, ch. 72, § 1-115.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.
2023 New Mexico Statutes › Chapter 46 - Fiduciaries and Trusts › Article 12 - Uniform Trust Decanting › Section 46-12-116 - Change in compensation.

A. If a first-trust instrument 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:
(1) all qualified beneficiaries of the second trust consent to the increase in a signed record; or
(2) the increase is approved by the court.
B. If a first-trust instrument does not specify an authorized fiduciary's compensation, the fiduciary shall not exercise the decanting power to increase the fiduciary's compensation above the compensation permitted by the Uniform Trust Code [Chapter 46A NMSA 1978] unless:
(1) all qualified beneficiaries of the second trust consent to the increase in a signed record; or
(2) the increase is approved by the court.
C. A change in an authorized fiduciary's compensation that is incidental to other changes made by the exercise of the decanting power is not an increase in the fiduciary's compensation for purposes of Subsections A and B of this section.
History:
Laws 2016, ch. 72, § 1-116.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 72, § 3-101 made the Uniform Trust Decanting Act, §§ 46-12-101 through 46-12-129 NMSA 1978, effective January 1, 2017.