North Dakota Code 59-16.2-05 – Designation and powers of trust protector
1. A trust protector may be designated in the governing instrument of a trust.
Terms Used In North Dakota Code 59-16.2-05
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Charity: An agency, institution, or organization in existence and operating for the benefit of an indefinite number of persons and conducted for educational, religious, scientific, medical, or other beneficent purposes.
- Fiduciary: A trustee, executor, or administrator.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Individual: means a human being. See North Dakota Code 1-01-49
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Trustee: A person or institution holding and administering property in trust.
2. The powers of a trust protector may be exercised or not exercised in the sole and absolute discretion of the trust protector, and are binding on all other persons, including a beneficiary, an investment trust advisor, a distribution trust advisor, a fiduciary, an excluded fiduciary, and any other person having an interest in the trust.
3. The governing instrument may use the title “trust protector” or a similar name or description demonstrating the intent to provide for the office and function of a trust protector.
4. The powers granted to a trust protector by the governing instrument may include authority to do one or more of the following:
a. Modify or amend the governing instrument to achieve favorable tax status or respond to changes in the Internal Revenue Code, federal laws, state laws, or the rulings and regulations under those laws; b. Increase, decrease, or modify the interests of a beneficiary or beneficiaries of the trust; c. Modify the terms of a power of appointment granted by the trust provided, the modification or amendment does not grant a beneficial interest to any individual, class of individuals, or other parties not specifically provided for under the trust instrument; d. Remove, or appoint, a trustee, investment trust advisor, distribution trust advisor, another directing party, investment committee member, or distribution committee member, including designation of a plan of succession for future holders of that office; e. Terminate the trust, including determination of how the trustee is to distribute the trust property to be consistent with the purposes of the trust; f. Change the situs of the trust, the governing law of the trust, or both; g. Appoint one or more successor trust protectors, including designation of a plan of succession for future trust protectors; h. Interpret terms of the trust instrument at the request of the trustee; i. Advise the trustee on matters concerning a beneficiary; j. Amend or modify the governing instrument to take advantage of laws governing: (1) Restraints on alienation; (2) Distribution of trust property; or
(3) Improvement of the administration of the trust; k. Veto or direct trust distributions; or
l. Provide direction regarding notification of qualified beneficiaries.
5. If a charity is a qualified beneficiary of the trust, a trust protector shall give notice to the attorney general at least sixty days before taking any action authorized under subdivisions b through f of subsection 4. The attorney general may waive this notice requirement.