Revision: Jan. 20, 2011, midnight
SB 50 – AS INTRODUCED
2011 SESSION
08/05
SENATE BILL 50
AN ACT making various changes to laws regulating trusts and trust companies.
SPONSORS: Sen. D'Allesandro, Dist 20; Sen. Bradley, Dist 3; Sen. Odell, Dist 8; Sen. Gallus, Dist 1; Sen. Houde, Dist 5; Rep. Hunt, Ches 7
This bill makes various changes to laws regulating trusts and trust companies.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11-1049 08/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT making various changes to laws regulating trusts and trust companies.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Purpose. The general court finds:
I. The market for trusts and fiduciary services across the nation is a rapidly growing sector of the nation’s economy.
II. New Hampshire is uniquely positioned to provide the most attractive legal and financial environment for individuals and families seeking to establish and locate their trusts and investment assets.
III. This act will serve to continue New Hampshire’s firm commitment to be the best and most attractive legal environment in the nation for trusts and fiduciary services, an environment that will continue to attract to our state good-paying jobs for trust and investment management, legal and accounting professionals, and other professionals to provide the support and infrastructure required to service this growing sector of the nation’s economy.
2 Testamentary Trusts; Bond and Surety Requirements for Trustees. Amend RSA 564:1 to read as follows:
564:1 Bonds. Every trustee to whom any estate, real or personal, is devised in trust for any person shall give bond to the judge of probate, with sufficient sureties, or without sureties in estates of five thousand dollars or less where the judge finds it in the interest of the estate, in such sum as the judge may order, except as provided in RSA 564:2, conditioned:
I. That [he] the trustee will make and file in the probate office a true inventory of the real estate, goods, chattels, rights and credits so devised, at such time as the judge shall order.
II. That [he] the trustee will annually render an account to the judge of the annual income and profit thereof, unless excused by the judge of probate as provided by law.
III. That at the expiration of the trust [he] the trustee will adjust and settle his or her account with the judge, and pay and deliver over all balances, money, and property with which [he] the trustee has been entrusted.
IV. That [he] the trustee will faithfully execute the trust according to the true intent of the devisor.
V. The conditions of paragraphs I through IV shall not apply if the trustee of a formerly non-New Hampshire supervised trust is not required to submit annual accountings as provided in RSA 564:19, II and III.
3 Testamentary Trusts; Bonds of Banks. Amend RSA 564:5 to read as follows:
564:5 Bond of Banks. Except as otherwise provided in RSA 564:1, such trust company or national bank when appointed trustee shall give a surety company bond in such sum as the judge may order.
4 Testamentary Trusts; Filing Accounts. Amend RSA 564:19 to read as follows:
564:19 Filing Account. Except as otherwise provided in paragraphs II and III, every trustee shall file in the probate court an annual account of administration, unless upon petition he is excused by the judge of probate; but in no event shall [he] the trustee be excused for a period longer than three years, except that in cases where such filing may be impractical and may work financial hardship to the trust estate the judge of probate upon written approval of the attorney general may extend said period not exceeding in the aggregate five years. Such annual account of administration provided for herein may be allowed by the judge of probate without publication unless he shall otherwise order. Before giving notice to settle a final account the trustee shall file it in the probate office and shall cause the fact of such filing to appear in the notice and shall at the same time file a statement of the names and residences of the beneficiaries in the trust estate.
II. Notwithstanding paragraph I, if (a) the probate court grants a petition for the acceptance of jurisdiction over a trust with respect to which a court of another state has released its jurisdiction, and (b) the court releasing jurisdiction did not require the trustee(s) of that trust to file accounts with that court, or required that the trustees of the trust file accounts less frequently than annually, then the court accepting jurisdiction over such trust shall not require accountings whatsoever, or shall require accountings less frequently than annually, as the case may be, on the same basis as were required, or not required, by the court releasing jurisdiction.
III. A trust under will described in paragraph II, with respect to which no judicial accountings will be required, shall in all respects be subject to the beneficiary reporting and information requirements of RSA 564-B, the Uniform Trust Code, except to the extent that a contrary provision appears in the will under which the trust was created, provided that such contrary provision does not violate any of the mandatory rules of RSA 564-B:1-105. For these purposes, the “will creating the trust” shall have the same meaning as “trust instrument,” and the pertinent terms of the will shall have the same meaning as “terms of a trust” as defined in RSA 564-B:1-103 (19) and (20), respectively.
5 Uniform Trust Code; Application of Judicial Supervision of Trusts. Amend RSA 564-B:2-201 to read as follows:
564-B:2-201 Role of Court in Administration of Trust.
(a) The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.
(b) A trust[, other than a trust created by a will,] is not subject to continuing judicial supervision unless ordered by the court.
(c) A judicial proceeding involving a trust may relate to any matter involving the trust’s administration, including a request for instructions and an action to declare rights.
6 New Section; Uniform Trust Code; Application to Testamentary Trusts. Amend RSA 564 by inserting after section 24 the following new section:
564:25 Application of the Uniform Trust Code. The provisions of RSA 564-B, the Uniform Trust Code, shall apply to all trusts under will governed by this chapter, except to the extent that any provisions of the Uniform Trust Code conflict with the express provisions of this chapter, in which case the provisions of this chapter shall control.
7 New Section; Uniform Trust Code; Authority to Seal Confidential Records Under Limited Circumstances. Amend RSA 548 by inserting after section 5-a the following new section:
548:5-b Sealing of Records in Limited Circumstances.
I. Except as otherwise provided in this section, all pleadings and other papers including deposition transcripts and exhibits, answers to interrogatories and requests for admission, and affidavits of certificates and exhibits thereto, that are filed with the register of probate and relating to contested and uncontested trust matters shall become a part of the public record of the proceedings before this court.
II. Documents shall not be filed under seal unless and except to the extent that the person seeking such filing under seal shall have first obtained, for good cause shown, an order of this court specifying those documents or categories of documents which should be filed under seal; provided, however, the court may, in its discretion, receive and review any document in camera without public disclosure thereof and in connection with any such review, may determine whether good cause exists for the filing of such document under seal.
III. Notwithstanding the provisions of paragraph II, the court may, in its discretion, by order, authorize the parties or other persons to designate documents to be filed under seal pending a judicial determination of the specific documents or categories of documents to which such restriction on public access shall continue to apply. In all such cases the court shall require submission of the matter within 10 days of such initial order and shall make such a determination as soon as practicable.
IV. Whenever any brief or correspondence of any party to a contested matter is filed under seal with the court because it would disclose information from a document which is otherwise required to be filed under seal pursuant this section, the following procedures shall be followed:
(a) If the restricted documents had been designated by the party filing the brief or correspondence, the party shall also file a copy of the brief or correspondence for public inspection omitting only such restricted information which the party believes should continue to be sealed for good cause; or
(b) If the restricted documents had been designated by another person, the party filing the brief or correspondence under seal shall give written notice to such person that a copy of the entire brief or correspondence will be filed for public inspection unless such person files, within 3 days of the filing of the brief or correspondence under seal, a copy of the brief or correspondence for public inspection omitting only such restricted information which such person believes should continue to be sealed for good cause; or
(c) If the brief or correspondence discloses information from a restricted document which had been designated by the party filing the brief or correspondence and also discloses information from a restricted document which had been designated by another person, the party filing the brief or correspondence under seal and such other person shall jointly prepare and file, within 3 days of the filing of the brief or correspondence under seal, a copy of the brief or correspondence for public inspection omitting only such restricted information as each of them believes should continue to be sealed for good cause.
V. Any person who seeks the continued sealing of any portion of a brief or correspondence pursuant to paragraph IV shall also file a certification signed by such person’s attorney of record, or in the event such person is not represented by an attorney, signed by such person, that said attorney has personally reviewed the brief or correspondence filed under seal and that said attorney believes to the best of the attorney’s knowledge, information and belief that the restricted information should continue to be sealed for good cause. Said certificate shall briefly set for the
reasons why said attorney believes that good cause exists for continued filing of the brief or correspondence under seal.
VI. Any party who objects to the continued sealing of any document filed under seal pursuant to paragraphs II and III or to any portion of a brief or correspondence filed under seal pursuant to paragraph IV shall give written notice of such party’s objection to the person who designated the document for filing under seal. To the extent that such person seeks to continue the restriction on public access to such document, said person shall serve and file an application with 7 days after receipt of such written notice setting forth the grounds for such continued restriction and requesting a judicial determination whether good cause exists therefor. In such circumstances, the court shall promptly make such a determination.
VII. The register of probate shall promptly unseal any document or brief or correspondence in the absence of timely compliance with the provisions of this section. In addition, 30 days after final judgment has been entered without any appeal having been taken therefrom, the register of probate shall send a notice to any person who designated a document to be filed under seal that such document shall be released from confidential treatment, unless that person makes application to the court within 30 days for further confidential treatment for good cause shown.
VIII. Notwithstanding any provision of this section, any order permitting or requiring a document, brief, or letter to be filed or remain filed under seal shall expire 3 years after the final disposition of the action in which such order was entered, and any document, brief, or letter filed under seal pursuant to such order shall become a part of the public record. Notwithstanding anything to the contrary in this paragraph, the time within which such order shall expire may be extended by the court for good cause shown.
8 New Section; Probate Courts; Authority to Seal Confidential Records Under Limited Circumstances. Amend RSA 547 by inserting after section 17 the following new section:
547:17-a Authority to Order Sealing of Records Under; Limited Circumstances. A judge of probate in any county may order that probate records be sealed under such terms and conditions as are described in RSA 548:5-b.
9 Uniform Trust Code; Clarifying Terms of Trust Instrument Control. Amend RSA 564-B:1-105(b)(3)to read as follows:
(3) The requirement that a trust [and its terms be for the benefit of its beneficiaries] exists, and its assets shall be held, for the benefit of the trust’s beneficiaries in accordance with the interests of the beneficiaries of the trust as defined in the trust instrument, and the requirement that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve;
10 Uniform Trust Code; Limitation of Action Against Trustee. Amend RSA 564-B:10-1005 to read as follows:
564-B:10-1005 Limitation of Action Against Trustee.
(a) A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding.
(b) A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence.
(c) If subsection (a) does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within 3 years after the first to occur of:
(1) The removal, resignation, or death of the trustee;
(2) The termination of the beneficiary’s interest in the trust; [or]
(3) The termination of the trust[.]; or
(4) The date on which the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust.
(d) The periods of limitation under this section shall not be tolled for any reason.
11 Effective Date. This act shall take effect 60 days after its passage.