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Purpose Trusts As a Planning Tool for the 21St Century Thomas E

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Purpose Trusts As a Planning Tool for the 21St Century Thomas E University of South Dakota School of Law From the SelectedWorks of Thomas E. Simmons September 8, 2019 Purpose Trusts as a Planning Tool for the 21st Century Thomas E. Simmons Brad Myers Available at: https://works.bepress.com/tom_simmons/71/ Sunday Session III: Purpose Trusts as a Planning Tool for the 21st Century 1 – Myers & Simmons Purpose Trusts as a Planning Tool for the 21st Century Bradley Myers is the Associate Dean for Administration and the Randy H. Lee Professor at the University of North Dakota School of Law. He became a Fellow of the American College of Trust & Estate Counsel in 2017. Governor Hoeven named him one of North Dakota’ Commissioners to the Uniform Law Commission in 2007 and has served on several drafting committees for Uniform Acts in the Trusts & Estates area. Professor Myers joined faculty at the University of North Dakota in 2001 and teaches Federal Income Taxation, Business Entities Taxation Trusts and Estates, Estate Planning. Professor Myers formerly practiced law in the states of Nevada, California and Oregon, with his practice focused primarily in tax, business and estate planning with a special focus on the issues surrounding the development of low-income housing. Professor Myers received BS and MS degrees in Kinesiology from the University of California, Los Angeles. He then spent two years at the University of California, Davis, doing post-graduate research in avian respiratory control. Professor Myers received his J.D. from the University of Oregon. He served on the editorial staff of the Oregon Law Review and was elected to the Order of the Coif. Professor Myers continued his training at New York University, earning an LL.M. in Taxation. Tom Simmons is a professor at the University of South Dakota School of Law as well as a proud graduate of the same institution where he teaches Trusts & Wills, Estate Planning, Professional Responsibility, Remedies in Law & Equity, and an occasional seminar titled Holocaust Law. He also co-teaches Tribal Wills Clinic I and II. Professor Simmons is a fellow with the American College of Trust and Estate Counsel, the American College of Tax Counsel, and the American Bar Foundation. He serves on the South Dakota Governor’s Task Force on Trust Administration Review and Reform. In that capacity, he drafted South Dakota Virtual Representation and its Purpose Trust statutes. He is a former member of the South Dakota Board of Pardons & Paroles. Prior to joining the faculty of the USD law school, Professor Simmons was a partner with the Gunderson, Palmer, Nelson & Ashmore law firm in Rapid City, South Dakota where he practiced in the trusts and estates field for thirteen years. He also clerked for the Honorable Andrew Bogue, a senior federal district court judge. He has taught at every educational level: Head Start, junior high students in Japan, fourth graders in the U.S., paralegal students, and now law students. He also once worked as a “slimer” in a salmon cannery in Alaska. Copyright © 2019. All rights reserved by Bradley Myers and Thomas E. Simmons. 2 – Myers & Simmons TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 4 II. DISCUSSION ................................................................................................ 5 A. Some Purpose Trust Problems ................................................................ 12 1. Income Tax Problems ......................................................................... 13 2. The Rule against Perpetuities ............................................................. 16 3. The Rule against Capriciousness ........................................................ 17 B. A Brief Summary of Existing State Codes.............................................. 18 1. Colorado Code .................................................................................... 19 2. Idaho Code .......................................................................................... 19 3. Montana Code..................................................................................... 20 4. New Mexico Code ............................................................................... 22 5. North Dakota Code ............................................................................. 22 6. South Dakota Code ............................................................................. 22 7. Texas Code .......................................................................................... 24 8. Utah Code ........................................................................................... 25 9. Wyoming Code .................................................................................... 25 C. Purpose Trusts Meet Other Uniform Laws ............................................. 26 1. Uniform Law Commission .................................................................. 26 2. Uniform Probate Code........................................................................ 28 3. Uniform Trust Code ............................................................................ 28 4. Uniform Directed Trust Act ................................................................ 29 5. Uniform Trust Decanting Act ............................................................. 30 6. Uniform Fiduciary Income and Principal Act .................................... 33 D. The States and Uniform Laws: An Analysis .......................................... 34 1. Colorado Code .................................................................................... 34 2. Idaho Code .......................................................................................... 34 3. Montana Code..................................................................................... 35 4. New Mexico Code ............................................................................... 35 5. North Dakota Code ............................................................................. 36 6. South Dakota Code ............................................................................. 36 7. Texas Code .......................................................................................... 37 8. Utah Code ........................................................................................... 38 9. Wyoming Code .................................................................................... 38 III. CONCLUSION ........................................................................................... 39 IV. APPENDIX: Rocky Mountain Region States’ Statutory Provisions.......... 40 A. Colorado Code ........................................................................................ 40 B. Idaho Code .............................................................................................. 44 C. Montana Code ......................................................................................... 45 D. New Mexico Code .................................................................................. 46 E. North Dakota Code .................................................................................. 47 F. South Dakota Code .................................................................................. 48 G. Texas Code ............................................................................................. 52 H. Utah Code ............................................................................................... 53 I. Wyoming Code ......................................................................................... 55 J. Uniform Trust Code §§ 408 and 409........................................................ 56 K. Uniform Trust Code § 2-907 ................................................................... 57 3 – Myers & Simmons Purpose Trusts as a Planning Tool for the 21st Century I. INTRODUCTION Purpose trusts are a rather unique sort of trust.1 The sort of express trust with which we are most familiar is trust which benefits beneficiaries. A woman might create a trust for her husband. A parent might form a trust for his children. Indeed, one critical component of this primary type of trust is that the beneficiaries, if not named or otherwise identified, be at least ascertainable.2 This is more than a mere formality, for without beneficiaries, there is no one who can enforce the trust. If a trustee holds property but is accountable to no one concerning his administration of it, then he doesn’t really hold property in a trustee capacity at all. Thus, a trust which is for the benefit of a settlor’s “friends” might fail even though it is clear that the settlor intended to create a trust. In Clark v. Campbell, the New Hampshire Supreme Court reasoned that because “friends” had “no accepted statutory or other controlling limitations” and in truth had “no precise sense at all” – that the identity of the beneficiaries was too uncertain.3 Therefore, the trust failed. One important exception to the requirement that a trust contain ascertainable beneficiaries is charitable trusts. A charitable trust might be drafted with an aim such as preventing cruelty to animals, working towards the alleviation of hunger, or advancing the education of underprivileged children. Because the purpose identified is “charitable” no ascertainable beneficiaries are required. Or a charitable trust might be drafted which directs the trustee to carry out distributions to charitable organizations. In either case, it might be found that the trust lacks ascertainable beneficiaries,
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