Bill Summary for S 466 (2015-2016)

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Summary date: 

Mar 26 2015

Bill Information:

View NCGA Bill Details2015-2016 Session
Senate Bill 466 (Public) Filed Wednesday, March 25, 2015
Intro. by Hartsell.

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Bill summary

Enacts new Article 5A, Creditors' Claims: Qualified Self-Settled Trusts, in GS Chapter 36C, providing as follows.

Allows a settlor to transfer assets to a qualified self‑settled trust and retain in that trust a qualified interest and provides that a creditor has only those rights with respect to a transfer to a qualified self‑settled trust retaining a qualified interest as are provided in this Article. Prohibits a creditor or assignee of a settlor from reaching a qualified interest or distribution by the trustee before it is received by the settlor. Prohibits a creditor or assignee of a settlor from compelling a distribution from a trust in which the settlor has a qualified interest even if the trustee has abused the trustee's discretion; however, this does not limit the right of the settlor to maintain a judicial proceeding against a trustee for abuse of discretion or failure to comply with a standard of distribution.

Defines a qualified self‑settled trust as a trust for which all of the following apply: (1) the trust is irrevocable, (2) the trust is created during the settlor's lifetime, (3) the settlor has a qualified interest, (4) there is at all times during the existence of the settlor's qualified interest at least one beneficiary other than the settlor to whom income or principal may be distributed, (5) the trust has at all times at least one qualified trustee, and (6) the trust instrument expressly incorporates the law of this state to govern the meaning and effect of the trust. Provides that a trust instrument is not deemed revocable on account of the inclusion of any of the 14 specified rights, powers, and interest, including the settlor's power to consent to a distribution from the trust, the settlor's qualified interest in the trust, or the settlor's receipt each year of a percentage (not exceeding 5%), specified in the trust instrument of the initial value of the trust assets or their value determined from time to time pursuant to the trust instrument. 

Defines qualified interest to mean  a settlor's interest in a qualified self‑settled trust that is a discretionary trust interest, to the extent that the interest entitles the settlor to receive distributions of income, principal, or both, in the discretion of a qualified trustee. Defines a qualified trustee to mean any person who: (1) is a natural person residing within this state or is a state or federal chartered bank or trust company authorized to engage in trust business within this State and having a place of business within this state; (2) maintains or arranges for custody within this state of some or all of the property that has been transferred to the trust by the settlor, maintains records within this state for the trust on an exclusive or nonexclusive basis, prepares or arranges for the preparation within this state of fiduciary income tax returns for the trust, or otherwise materially participates within this state in the administration of the trust; (3) is not a "related or subordinate party" in relation to the settlor; and (4) is neither the settlor nor the settlor's spouse.

Sets out the procedure for filling a vacancy in the position of qualified trustee. Allows a settlor to appoint power holders and sets out provisions concerning who may serve as a power holder and what powers they have.

Prohibits an action by a creditor or assignee of the settlor to reach a qualified interest by attachment of present or future distributions to or for the settlor or other means, or against the trust property by attachment or other means, unless the action is brought for avoidance of a transfer to a qualified self‑settled trust, with specified exceptions. 

Provides that a transfer to a qualified self-settled trust with a retained qualified interest is avoided only to the extent necessary to satisfy the settlor's debt to the creditor at whose instance the transfer has been avoided, along with any costs that he court may allow. Sets out provisions governing when transfer is avoided. 

Sets out rules that apply when a settlor makes more than one transfer to the same qualified self-settled trust. Establishes a settlor's rights with respect to qualified interest.

Provides that the trustee or power holder has no liability to any creditor of the settlor for distributions made to or for the benefit of the settlor to the extent that the settlor's interest is protected or restricted by a qualified interest. Also provides that no creditor or assignee of a settlor has any claim or cause of action against any person involved in the counseling, drafting, administration, preparation, execution, or funding of the qualified self‑settled trust, or a limited liability company, limited partnership, or corporation or similar entity or interest in that entity that is subsequently transferred to the qualified self‑settled trust.

Specifies claims that are not defeated by this Article.

Applies to transfers to trusts made on or after January 1, 2016.