Chapter 10 - Uniform Trust Code
CHAPTER 10 - UNIFORM TRUST CODE
ARTICLE 1 - GENERAL PROVISIONS ANDDEFINITIONS
4-10-101. Short title.
This act may be cited as the Uniform Trust Code.
4-10-102. Scope.
This act applies to charitable or noncharitable expresstrusts and trusts created pursuant to a statute, judgment or decree thatrequires the trust to be administered in the manner of an express trust.
4-10-103. Definitions.
(a) As used in this act:
(i) "Action," with respect to an act of a trustee,includes a failure to act;
(ii) "Beneficiary" means a person that:
(A) Has a present or future beneficial interest in a trust,vested or contingent; or
(B) In a capacity other than that of trustee or trustprotector, holds a power of appointment over trust property.
(iii) "Charitable trust" means a trust, or portion of atrust, created for a charitable purpose described in W.S. 4-10-406(a);
(iv) "Conservator" for the purposes of this act meansas defined in W.S. 3-1-101(a)(iii);
(v) "Environmental law" means a federal, state, orlocal law, rule, regulation, or ordinance relating to protection of theenvironment;
(vi) "Excluded fiduciary" means any fiduciary excludedfrom exercising certain powers under the trust instrument or by court orderwhich powers may be exercised by the settlor, trust advisor, trust protector orother persons designated by the instrument or court order;
(vii) "Fiduciary" means a trustee under a testamentaryor other trust, an executor, administrator, or personal representative of adecedent's estate, or any other party including a trust advisor or a trustprotector, who is acting in a fiduciary capacity for any person, trust orestate;
(viii) "Guardian" for the purposes of this act means asdefined in W.S. 3-1-101(a)(v);
(ix) "Incapacity" or "incompetency" or"incompetent person" means as defined in W.S. 3-1-101(a)(ix) unlessotherwise defined by the terms of the trust;
(x) "Interests of the beneficiaries" means thebeneficial interests provided in the terms of the trust;
(xi) "Jurisdiction," with respect to a geographicarea, includes a state or country;
(xii) "Person" means an individual, corporation,business trust, estate, trust, partnership, limited liability company,association, joint venture, government, governmental subdivision, agency orinstrumentality, public corporation or any other legal or commercial entity;
(xiii) "Power of withdrawal" means a presentlyexercisable general power of appointment other than a power exercisable by atrustee which is limited by an ascertainable standard, or which is exercisableby another person only upon consent of the trustee or a person holding anadverse interest;
(xiv) "Property" means anything that may be the subjectof ownership, whether real or personal, legal or equitable, or any interesttherein;
(xv) "Qualified beneficiary" means a beneficiary whois currently entitled to distributions of income or principal from the trust orhas a vested remainder interest in the residuary of the trust which is notsubject to divestment, provided, however, if a trust has no qualifiedbeneficiary, "qualified beneficiary" shall mean a beneficiarycurrently eligible to receive distributions of income or principal from thetrust. The department of health is a qualified beneficiary as the vestedremainder beneficiary of trusts established pursuant to W.S. 42-2-403(f)(i),(ii) and (iii) and 42 U.S.C. 1396p(d)(4)(A), (B) and (C);
(xvi) "Regulated financial services institution" meansa financial institution as defined in W.S. 13-1-101(a)(ix) and any otherfinancial services provider regulated by the state of Wyoming or agency of thefederal government;
(xvii) "Revocable," as applied to a trust, meansrevocable by the settlor without the consent of the trustee or a person holdingan adverse interest;
(xviii) "Settlor" means a person, including a testator,grantor or trust maker, who creates, transfers or contributes property to, atrust. If more than one (1) person creates, or transfers or contributesproperty to, a trust, each person is a settlor of the portion of the trustproperty attributable to that person's contributions or transfers, except tothe extent another person has the power to revoke that portion;
(xix) "Spendthrift provision" means a term of a trustwhich restrains either a voluntary or an involuntary transfer, or both, of abeneficiary's interest and shall not include or prevent a disclaimer of aninterest of a beneficiary;
(xx) "State" means a state of the United States, theDistrict of Columbia, Puerto Rico, the United States Virgin Islands, or anyterritory or insular possession subject to the jurisdiction of the UnitedStates. The term includes an Indian tribe or band recognized by federal law orformally acknowledged by a state;
(xxi) "Terms of a trust" means the manifestation of thesettlor's intent regarding a trust's provisions as expressed in the trustinstrument or as may be established by other evidence that would be admissiblein a judicial proceeding;
(xxii) "Trust advisor" means the settlor of a trustinstrument or another person whose appointment is provided in the trustinstrument and whose powers are defined in W.S. 4-10-712;
(xxiii) "Trust protector" means any disinterested partywhose appointment is provided for in the trust instrument or who is appointedby a court of competent jurisdiction and whose powers are defined in W.S.4-10-710;
(xxiv) "Trust instrument" means an instrument executedby the settlor that contains terms of the trust, including any amendmentsthereto;
(xxv) "Trustee" includes an original, additional andsuccessor trustee and a cotrustee;
(xxvi) "This act" means W.S. 4-10-101 through 4-10-1103;
(xxvii) "Ascertainable standard" means a standardrelating to an individual's health, education, support or maintenance withinthe meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Codeof 1986, as in effect on July 1, 2005;
(xxviii) "Directed trust" means a trust where eitherthrough the terms of the trust, an agreement of the qualified beneficiaries ora court order, one (1) or more persons is given the authority to direct,consent to or disapprove a fiduciary's actual or proposed investment decision,distribution decision or any other noninvestment decision of the fiduciary;
(xxix) "Discretionary distribution" means a distributionwhich the trustee is not directed to make, but is permitted to make in the trustee'sdiscretion. For example, the language in a trust instrument providing for adiscretionary distribution may contain the words "may" or "inthe trustee's discretion". The language providing for a discretionarydistribution may include a standard of distribution or other guidance as longas the language or other guidance does not require the trustee to make adistribution in accordance with the standard or guidance;
(xxx) "Discretionary trust" means a trust in which thetrustee is not directed to make any distributions, but is permitted to makediscretionary distributions;
(xxxi) "Mandatory distribution" means a distributionwhich a trustee is required to make under the trust instrument and the trusteehas no discretion in determining whether the distribution shall be made. Trustinstrument language providing for a mandatory distribution may include astandard of distribution accompanied by a direction requiring the trustee tomake the distribution in accordance with the standard. For example, trustinstrument language providing for a mandatory distribution may contain thewords "shall" or "must" or "directed";
(xxxii) "Power of appointment" means an inter vivos ortestamentary power to direct the disposition of trust property, other than adistribution decision by a trustee to a beneficiary;
(xxxiii) "Qualified spendthrift trust" means a trustestablished in accordance with W.S. 4-10-510 et seq.;
(xxxiv) "Qualified transfer" means as defined in W.S.4-10-512;
(xxxv) "Qualified trustee" as used in article 5 of thisact means:
(A) A natural person who is a resident of this state; or
(B) A person authorized by the law of this state to act as atrustee or a regulated financial institution which:
(I) Maintains or arranges for custody in this state of some orall of the qualified trust property;
(II) Maintains records for the qualified spendthrift trust on anexclusive or nonexclusive basis;
(III) Prepares or arranges for the preparation of fiduciaryincome tax returns for the qualified spendthrift trust; or
(IV) Otherwise materially participates in the administration ofthe qualified spendthrift trust.
(C) Neither the settlor, nor any other natural person who is anonresident of this state, nor an entity that is not authorized by the law ofthis state to act as a trustee or is not a regulated financial institution, mayserve as a qualified trustee.
(xxxvi) "Qualified trust property" means the property ofa qualified spendthrift trust as defined in W.S. 4 10-511;
(xxxvii) "Standard of distribution" means language in atrust instrument providing guidance or direction to a trustee regardingdistributions of income or principal. Standards of distribution are not limitedto ascertainable standards.
4-10-104. Knowledge.
(a) Subject to subsection (b) of this section, a person hasknowledge of a fact if the person:
(i) Has actual knowledge of it;
(ii) Has received a notice or notification of it; or
(iii) From all the facts and circumstances known to the person atthe time in question, has reason to know it.
(b) An organization that conducts activities through employeeshas notice or knowledge of a fact involving a trust only from the time theinformation was received by an employee having responsibility to act for the trust,or would have been brought to the employee's attention if the organization hadexercised reasonable diligence. An organization exercises reasonable diligenceif it maintains reasonable routines for communicating significant informationto the employee having responsibility to act for the trust and there isreasonable compliance with the routines. Reasonable diligence does not requirean employee of the organization to communicate information unless thecommunication is part of the individual's regular duties or the individualknows a matter involving the trust would be materially affected by theinformation.
4-10-105. Default and mandatory rules.
(a) Except as otherwise provided in the terms of the trust,this act governs the duties and powers of a trustee, relations among trusteesand the rights and interests of a beneficiary.
(b) The terms of a trust shall prevail over any provision ofthis act except:
(i) The requirements for creating a trust;
(ii) The duty of a trustee to act in good faith and inaccordance with the purposes of the trust;
(iii) The requirement that a trust and its terms be for thebenefit of its beneficiaries, and that the trust have a purpose that is lawful,not contrary to public policy, and possible to achieve;
(iv) The power of the court to modify or terminate a trust underW.S. 4-10-411 through 4-10-417;
(v) The effect of a spendthrift provision and the rights ofcertain creditors and assignees to reach a trust as provided in article 5 ofthis act;
(vi) The power of the court under W.S. 4-10-702 to require,dispense with, or modify or terminate a bond;
(vii) The power of the court under W.S. 4-10-708(b) to adjust atrustee's compensation specified in the terms of the trust which isunreasonably low or high;
(viii) The effect of an exculpatory term under W.S. 4-10-1008;
(ix) The rights under W.S. 4-10-1010 through 4-10-1013 of aperson other than a trustee or beneficiary;
(x) Periods of limitation for commencing a judicial proceeding;
(xi) The power of the court to take such action and exercisesuch jurisdiction as may be necessary in the interests of justice; and
(xii) The subject-matter jurisdiction of the court and venue forcommencing a proceeding as provided in W.S. 4-10-203 and 4-10-204.
4-10-106. Common law of trusts; principles of equity.
The common law of trusts and principles of equity supplement thisact, except to the extent modified by this act or another statute of thisstate. When interpreting article 5 of this act, the court shall first use thelaw of this state, then general common law.
4-10-107. Governing law.
(a) The meaning and effect of the terms of a trust aredetermined by:
(i) The law of the jurisdiction designated in the terms of thetrust; or
(ii) In the absence of a controlling designation in the terms ofthe trust, the law of the jurisdiction having the most significant relationshipto the matter at issue. In determining the most significant relationship, theprincipal place of administration as defined in W.S. 4-10-108 shall be the mostheavily weighted factor and the location of trust property shall be the secondmost significant factor. The least significant factors shall be where thebeneficiaries or settlor are domiciled.
(b) The law of the jurisdiction designated in the terms of thetrust may be changed to the principal place of administration by a court withsubject matter jurisdiction.
4-10-108. Principal place of administration.
(a) Without precluding other means for establishing asufficient connection with the designated jurisdiction, terms of a trustdesignating the principal place of administration are valid and controlling if:
(i) A trustee's principal place of business is located in, or atrustee is a resident of, the designated jurisdiction;
(ii) All or part of the administration occurs in the designatedjurisdiction; or
(iii) The settlor was a resident of the designated jurisdictionat creation of the trust instrument.
(b) A trustee is under a continuing duty to administer thetrust at a place appropriate to its purposes, its administration and theinterests of the beneficiaries unless otherwise provided in subsection (a) ofthis section or changed as provided in subsection (c) of this section.
(c) Without precluding the right of the court to order, approveor disapprove a transfer, the trustee, in furtherance of the duty prescribed bysubsection (b) of this section, may transfer the trust's principal place ofadministration to another state or to a jurisdiction outside of the United States.
(d) The trustee shall notify the qualified beneficiaries inwriting of a proposed transfer of a trust's principal place of administrationto another jurisdiction not less than sixty (60) days before initiating thetransfer, unless waived by written consent of all qualified beneficiaries. Thenotice of proposed transfer shall include:
(i) The name of the jurisdiction to which the principal placeof administration is to be transferred;
(ii) The address and telephone number at the new location atwhich the trustee can be contacted;
(iii) An explanation of the reasons for the proposed transfer;
(iv) The date on which the proposed transfer is anticipated tooccur; and
(v) The date, not less than sixty (60) days after the giving ofthe notice, by which the qualified beneficiary is required to notify thetrustee of an objection to the proposed transfer.
(e) The authority of a trustee under this section to transfer atrust's principal place of administration terminates if a qualified beneficiarynotifies the trustee of an objection to the proposed transfer on or before thedate specified in the notice.
4-10-109. Methods and waiver of notice.
(a) Notice to a person under this act or the sending of adocument to a person under this act shall be accomplished in a mannerreasonably suitable under the circumstances and that results in receipt of thenotice or document. Permissible methods of notice, or for sending a document,include first-class mail, personal delivery, delivery to the person's lastknown place of residence or place of business or a properly directed electronicmessage.
(b) Notice otherwise required under this act or a documentotherwise required to be sent under this act need not be provided to a personwhose identity or location is unknown to and not reasonably ascertainable bythe trustee.
(c) Notice under this act or the sending of a document underthis act may be waived in writing by the person to be notified or sent thedocument.
(d) Notice of a judicial proceeding shall be given as providedin the Wyoming Rules of Civil Procedure.
4-10-110. Others treated as qualified beneficiaries.
(a) Whenever notice to qualified beneficiaries of a trust isrequired under this act before the death of the settlor, the trustee may givenotice to any beneficiary from whom the trustee has received a written requestfor notice if the trustee has the written consent of the settlor.
(b) Whenever notice to qualified beneficiaries of a trust isrequired under this act after the death of the settlor, the trustee shall givenotice to any beneficiary from whom the trustee has received a written requestfor notice unless the terms of the trust specify otherwise.
(c) A charitable organization expressly mandated to receivedistributions under the terms of a charitable trust or a person appointed toenforce a trust created for the care of an animal or another noncharitablepurpose as provided in W.S. 4-10-409 or 4-10-410 has the rights of a qualifiedbeneficiary under this act.
(d) The attorney general of this state may exercise the rightsof a qualified beneficiary with respect to a charitable trust having itsprincipal place of administration in this state by notifying the trustee bywritten notice.
4-10-111. Nonjudicial settlement agreements.
(a) For purposes of this section, "interestedpersons" means noncharitable beneficiaries eligible to receive currentdistributions from the trust, the settlor, if living, the trustee and trustprotector, if any.
(b) Except as otherwise provided in subsection (c) of thissection, interested persons may enter into a binding nonjudicial settlementagreement with respect to any matter involving a trust.
(c) Subject to the rights of persons dealing with a fiduciaryas provided in W.S. 4-10-1013, a nonjudicial settlement agreement is valid onlyto the extent it does not violate a material purpose of the trust and includesterms and conditions that could be properly approved by the court under thisact or other applicable law.
(d) Matters that may be resolved by a nonjudicial settlementagreement include:
(i) The interpretation or construction of the terms of thetrust;
(ii) The approval of a trustee's report or accounting;
(iii) Direction to a trustee to refrain from performing aparticular act or the grant to a trustee of any necessary or desirable power;
(iv) The resignation or appointment of a trustee and thedetermination of a trustee's compensation;
(v) Transfer of a trust's principal place of administration;
(vi) Liability of a trustee for an action relating to the trust;and
(vii) An election to treat the trust as a qualified spendthrifttrust under article 5 of this act and modification of the trust to comply withW.S. 4-10-510.
(e) Any interested person may request the court to approve anonjudicial settlement agreement, to determine whether the representation asprovided in article 3 of this act was adequate, and to determine whether theagreement contains terms and conditions the court could have properly approved.
ARTICLE 2 - JUDICIAL PROCEEDINGS
4-10-201. Role of court in administration of trust.
(a) The court may intervene in the administration of a trust tothe extent its jurisdiction is invoked by an interested person or as providedby law.
(b) A trust is not subject to continuing judicial supervisionunless ordered by the court.
(c) A judicial proceeding involving a trust may relate to anymatter involving the trust's administration, including a request forinstructions, an action to declare rights, to appoint a trust protector or todetermine the qualification of a trust as a qualified spendthrift trust underarticle 5 of this act.
4-10-202. Jurisdiction over fiduciary and beneficiary.
(a) By becoming a fiduciary of a trust having its principalplace of administration in this state or by moving the principal place ofadministration to this state, all trust fiduciaries submit personally to thejurisdiction of the courts of this state regarding any matter involving thetrust.
(b) With respect to their interests in the trust, thebeneficiaries of a trust having its principal place of administration in thisstate are subject to the jurisdiction of the courts of this state regarding anymatter involving the trust. By accepting a distribution from such a trust, therecipient submits personally to the jurisdiction of the courts of this stateregarding any matter involving the trust.
(c) This section does not preclude other methods of obtainingjurisdiction over a fiduciary or a beneficiary or other person receiving propertyfrom the trust.
4-10-203. Subject matter jurisdiction.
(a) The district court has exclusive jurisdiction ofproceedings in this state brought by a trustee, trust protector, trust advisoror beneficiary concerning the administration of a trust.
(b) The district court has concurrent jurisdiction with othercourts of this state in other proceedings involving a trust.
4-10-204. Venue.
(a) Except as otherwise provided in subsections (b) and (c) ofthis section, venue for a judicial proceeding involving a trust is in thecounty of this state in which the trust's principal place of administration isor will be located and, if the trust is created by will and the estate is notyet closed, in the county in which the decedent's estate is being administered.
(b) If a trust has no trustee, venue for a judicial proceedingfor the appointment of a trustee is in a county of this state in which abeneficiary resides, in a county in which any trust property is located, and ifthe trust is created by will, in the county in which the decedent's estate wasor is being administered.
(c) If the governing law of a trust designates this state, thevenue for judicial proceeding involving a trust is in a county of this state inwhich a beneficiary resides, in a county in which any trust property is locatedor in a county where the trustee maintains an office.
(d) If venue is not established under subsection (c) of thissection, venue shall be proper in the first judicial district court in Laramiecounty.
ARTICLE 3 - REPRESENTATION
4-10-301. Representation; basic effect.
(a) Notice to a person who may represent and bind anotherperson under this article has the same effect as if notice were given directlyto the other person.
(b) The consent of a person who may represent and bind anotherperson under this article is binding on the person represented unless theperson represented objects to the representation by notifying the trustee orthe representative before the consent would otherwise have become effective.
(c) Except as otherwise provided in W.S. 4-10-412 and 4-10-602,a person who under this article may represent a settlor who lacks capacity mayreceive notice and give a binding consent on the settlor's behalf.
(d) A settlor may not represent and bind a beneficiary underthis article with respect to the termination or modification of a trust underW.S. 4-10-412(a).
4-10-302. Representation by holder of general testamentary power ofappointment.
The holder of a general testamentary power of appointment mayrepresent and bind persons whose interests, as permissible appointees, takersin default, or otherwise, are subject to the power.
4-10-303. Representation by fiduciaries and parents.
(a) To the extent there is no conflict of interest between the representativeand the person represented or among those being represented with respect to aparticular question or dispute:
(i) A conservator may represent and bind the estate that theconservator controls;
(ii) A guardian may represent and bind the ward if a conservatorof the ward's estate has not been appointed;
(iii) An agent having authority to act with respect to theparticular question or dispute may represent and bind the principal;
(iv) A trustee may represent and bind the beneficiaries of thetrust;
(v) A personal representative of a decedent's estate mayrepresent and bind persons interested in the estate;
(vi) A parent with primary legal custody may represent and bindeach of the parent's minor or incapacitated children if no legal representativehas been appointed by a court for that child, unborn children of that parent,the unborn descendants of each child, and each minor or incapacitateddescendant of each child if no legal representative has been appointed by acourt for that descendant, to the extent there is no conflict of interestbetween the parent and the person or class of persons represented with respectto a particular question or dispute; and
(vii) A beneficiary who is not a qualified beneficiary shall berepresented and bound by the decisions, actions and omissions of the qualifiedbeneficiary through whom, or by reason of whose death or exercise of a power ofappointment, the beneficiary will receive his interest, if any, in the trust,including without limitations for the purposes of W.S. 4-10-802, 4-10-813,4-10-1005 and 4-10-1009.
(b) A trustee may rely on a certificate of the fiduciarydescribed in paragraphs (a)(i) through (v) of this section with regard towhether or not any such conflict of interest exists.
4-10-304. Representation by person having substantially identicalinterest.
Unless otherwise represented, a minor, incapacitated or unbornindividual, or a person whose identity or location is unknown and notreasonably ascertainable, may be represented by and bound by another having asubstantially identical interest with respect to the particular question ordispute, but only to the extent there is no conflict of interest between therepresentative and the person represented.
4-10-305. Appointment of representative.
(a) If the court determines that an interest is not representedunder this article, or that the otherwise available representation might beinadequate, the court may appoint a representative to receive notice, giveconsent and otherwise represent, bind and act on behalf of a minor,incapacitated or unborn individual, or a person whose identity or location isunknown. A representative may be appointed to represent several persons orinterests.
(b) A representative may act on behalf of the individualrepresented with respect to any matter arising under this act, whether or not ajudicial proceeding concerning the trust is pending.
(c) In making decisions, a representative may consider generalbenefit accruing to the living members of the individual's family.
ARTICLE 4 - CREATION, VALIDITY, MODIFICATIONAND TERMINATION OF TRUST
4-10-401. Methods of creating trust.
(a) A trust may be created by:
(i) Transfer of property to another person as trustee duringthe settlor's lifetime or by will or other disposition taking effect upon thesettlor's death;
(ii) Declaration by the owner of property that the owner holdsidentifiable property as trustee;
(iii) Exercise of a power of appointment in favor of a trustee;
(iv) The court as provided in W.S. 3-3-607(a)(vi); or
(v) An agent under a power of attorney where the expressauthority is designated with the appointment document and where the trustdirects distribution upon the settlor's death consistent with an existing willor other testamentary instrument or in absence thereof in accordance with thelaw of intestate succession as provided in W.S. 2-4-101.
4-10-402. Title of trust property.
(a) Property transferred to a trust shall be titled:
(i) If it is real property, in accordance with W.S. 34-2-122;and
(ii) If it is personal property, in:
(A) The name of the current trustee as the trustee of suchtrust;
(B) The name of "the trustee" as the trustee of suchtrust;
(C) The name of the nominee of the trustee; or
(D) The name of the trust.
(b) Any reference to the trustee shall be deemed to include anysuccessor or substitute trustee serving from time to time.
4-10-403. Requirements for creation.
(a) A trust is created only if:
(i) The settlor has capacity to create a trust;
(ii) The settlor indicates an intention to create the trust;
(iii) The trust has a definite beneficiary or is:
(A) A charitable trust;
(B) A trust for the care of an animal, as provided in W.S.4-10-409; or
(C) A trust for a noncharitable purpose, as provided in W.S.4-10-410.
(iv) The trustee has duties to perform; and
(v) The same person is not the sole trustee and solebeneficiary.
(b) A beneficiary is definite if the beneficiary can beascertained now or in the future, subject to W.S. 34-1-139.
(c) A power in a trustee, trust advisor, trust protector orother party designated in the trust instrument to select a beneficiary from anindefinite class is valid. If the power is not exercised within a reasonabletime, the power fails and the property subject to the power passes to thepersons who would have taken the property had the power not been conferred.
4-10-404. Trusts created in other jurisdictions.
(a) A trust not created by will is validly created if itscreation complies with the law of the jurisdiction in which the trustinstrument was executed, or the law of the jurisdiction in which, at the timeof creation:
(i) The settlor was domiciled, had a place of abode, or was anational;
(ii) A trustee was domiciled or had a place of business; or
(iii) Any trust property was located.
4-10-405. Trust purposes.
A trust may be created only to the extent its purposes are lawful,not contrary to public policy, and possible to achieve. A trust and its termsshall be for the benefit of its beneficiaries.
4-10-406. Charitable purposes; enforcement.
(a) A charitable trust may be created for the relief ofpoverty, the advancement of education or religion, the promotion of health,governmental or municipal purposes, or other purposes the achievement of whichis beneficial to the community.
(b) If the terms of a charitable trust do not indicate orotherwise provide for selection of a particular charitable purpose orbeneficiary or if the designated charitable purpose cannot be completed or nolonger exists, the court may select one (1) or more charitable purposes orbeneficiaries. The selection shall be consistent with the settlor's intentionto the extent it can be ascertained.
(c) The settlor of a charitable trust, among others, maymaintain a proceeding to enforce the trust.
4-10-407. Creation of trust induced by fraud, duress or undueinfluence.
Subject to the rights of persons dealing with a fiduciary asprovided in W.S. 4-10-1013, a trust is void to the extent its creation wasinduced by fraud, duress or undue influence.
4-10-408. Evidence of oral trust.
Except as required by a statute other than this act, a trust neednot be evidenced by a trust instrument, but the creation of an oral trust andits terms may be established only by clear and convincing evidence.
4-10-409. Trust for care of animal.
(a) A trust may be created to provide for the care of an animalalive during the settlor's lifetime. The trust terminates upon the death of theanimal or, if the trust was created to provide for the care of more than one(1) animal alive during the settlor's lifetime, upon the death of the lastsurviving animal.
(b) A trust authorized by this section may be enforced by aperson appointed in the terms of the trust, trust advisor, trust protector or,if no person is so appointed, by a person appointed by the court. A personhaving an interest in the welfare of the animal may request the court toappoint a person to enforce the trust or to remove a person appointed.
(c) Property of a trust authorized by this section may beapplied only to its intended use, except to the extent the court determinesthat the value of the trust property exceeds the amount required for theintended use. Except as otherwise provided in the terms of the trust, propertynot required for the intended use shall be distributed to the settlor, if thenliving, otherwise to the settlor's successors in interest.
4-10-410. Noncharitable trust without ascertainable beneficiary.
(a) Except as otherwise provided in W.S. 4-10-409 or by anotherstatute, the following rules apply:
(i) A trust may be created for a noncharitable purpose withouta definite or definitely ascertainable beneficiary or for a noncharitable butotherwise valid purpose to be selected by the trustee;
(ii) A trust authorized by this section may be enforced by atrust advisor, trust protector, person appointed in the terms of the trust or,if no person is so appointed, by a person appointed by the court;
(iii) Property of a trust authorized by this section may beapplied only to its intended use, except to the extent the court determinesthat the value of the trust property exceeds the amount required for theintended use. Except as otherwise provided in the terms of the trust, propertynot required for the intended use shall be distributed to the settlor, if thenliving, otherwise to the settlor's successors in interest.
4-10-411. Modification or termination of trust; proceedings forapproval or disapproval.
(a) In addition to the methods of termination prescribed byW.S. 4-10-412 through 4-10-415, a trust terminates to the extent the trust isrevoked or expires pursuant to its terms, no material purpose of the trustremains to be achieved or the purposes of the trust have become unlawful,contrary to public policy or impossible to achieve.
(b) A proceeding to approve or disapprove a proposedmodification or termination under W.S. 4-10-412 through 4-10-417, or trustcombination or division under W.S. 4-10-418, may be commenced by a trustee orbeneficiary, and a proceeding to approve or disapprove a proposed modificationor termination under W.S. 4-10-412 may be commenced by the settlor. The settlorof a charitable trust may maintain a proceeding to modify the trust under W.S. 4-10-414.
4-10-412. Modification or termination of noncharitable irrevocabletrust by consent.
(a) If upon petition the court finds that the settlor and allqualified beneficiaries consent to the modification or termination of anoncharitable irrevocable trust, the court may enter an order approving themodification or termination, even if the modification or termination isinconsistent with a material purpose of the trust. A settlor's power to consentto a modification or termination of a trust may be exercised by an agent undera power of attorney only to the extent expressly authorized by the power ofattorney or the terms of the trust or, if no agent is so authorized, then bythe settlor's conservator or guardian. Exercise of the settlor's power to consentby an agent, conservator or guardian shall be in each case with the approval ofthe court upon a finding by the court that such action is not inconsistent withthe settlor's purpose or intent.
(b) A noncharitable irrevocable trust may be modified orterminated by a trust protector provided that the terms of the trust authorizea protector and grant the trust protector the power to modify or terminate thetrust.
(c) A noncharitable irrevocable trust may be terminated uponconsent of all of the beneficiaries if the court concludes that continuance ofthe trust is not necessary to achieve any material purpose of the trust. Anoncharitable irrevocable trust may be modified upon consent of all of thebeneficiaries if the court concludes that modification is not inconsistent witha material purpose of the trust.
(d) A spendthrift provision in the terms of the trust is notpresumed to constitute a material purpose of the trust for purposes of thissection.
(e) Upon termination of a trust under subsection (a), (b) or(c) of this section, the trustee shall distribute the trust property asprovided in the terms of the trust or in default of such terms of the trust asagreed by all the beneficiaries.
(f) If not all the beneficiaries consent to a proposedmodification or termination of the trust under subsection (a), (b) or (c) ofthis section, the modification or termination may be approved by the court ifthe court is satisfied that:
(i) If all of the beneficiaries had consented, the trust couldhave been modified or terminated under this section; and
(ii) The interests of a beneficiary who does not consent will beadequately protected.
4-10-413. Modification or termination because of unanticipatedcircumstances or inability to administer trust effectively.
(a) The court may modify the administrative or dispositiveterms of a trust or terminate the trust if, because of circumstances notanticipated by the settlor, modification or termination will further thepurposes of the trust. To the extent practicable, the modification shall bemade in accordance with the settlor's probable intention.
(b) The court may modify the administrative terms of a trust ifcontinuation of the trust on its existing terms would be impracticable orwasteful or impair the trust's administration.
(c) Upon termination of a trust under this section, the trusteeshall distribute the trust property in a manner consistent with the purposes ofthe trust.
4-10-414. Cy pres.
(a) Except as otherwise provided in the terms of the trust, ifa particular charitable purpose becomes unlawful, impracticable, impossible toachieve or wasteful:
(i) The trust does not fail, in whole or in part;
(ii) The trust property does not revert to the settlor or thesettlor's successors in interest; and
(iii) The court may apply cy pres to modify or terminate thetrust by directing that the trust property be applied or distributed, in wholeor in part, in a manner consistent with the settlor's charitable purposes.
4-10-415. Modification or termination of uneconomic trust.
(a) If the fair market value of a trust is less than onehundred fifty thousand dollars ($150,000.00), the trustee may terminate thetrust by the following procedure:
(i) The trustee shall determine a plan of distribution thatagrees, as nearly as possible, with the purposes of the trust;
(ii) The trustee shall give written notice to all qualifiedbeneficiaries of his intent to distribute the assets in accordance with theplan unless a qualified beneficiary objects in writing within thirty (30) daysafter receipt of the notice;
(iii) If no objection is received within thirty (30) days afterreceipt of the notice, the trustee shall proceed to distribute the trust assetsin accordance with the plan;
(iv) If the trustee receives a written objection to the planwithin thirty (30) days after receipt of the notice, the trustee shall notdistribute the assets of the trust, but may then petition the court for anorder authorizing distribution in accordance with the plan. The court shallhave plenary authority to approve, modify or reject the trustee's petition.
(b) The existence of a spendthrift or similar provision shallnot affect the trustee's powers under this section unless the trust instrumentspecifically provides that the trustee shall not have the power to terminatethe trust.
(c) This section does not apply to an easement for conservationor preservation.
4-10-416. Reformation to correct mistakes.
The court may reform the terms of a trust, even if unambiguous, toconform the terms to the settlor's intention if it is proved by clear andconvincing evidence that both the settlor's intent and the terms of the trustwere affected by a mistake of fact or law, whether in expression or inducement.
4-10-417. Modification to achieve settlor's tax objectives.
To achieve the settlor's tax objectives, the court may modify theterms of a trust in a manner that is not contrary to the settlor's probableintention as proved by a preponderance of the evidence. The court may providethat the modification has retroactive effect.
4-10-418. Combination and division of trusts.
After notice to the qualified beneficiaries, a trustee maycombine two (2) or more trusts into a single trust or divide a trust into two(2) or more separate trusts, if the result does not impair the rights of anybeneficiary or adversely affect achievement of the purposes of the trust.
ARTICLE 5 - CREDITOR'S CLAIMS; SPENDTHRIFTAND DISCRETIONARY TRUSTS
4-10-501. Rights of beneficiary's creditor or assignee.
To the extent a beneficiary's interest in trust income orprincipal, or both, is not subject to a spendthrift provision or the exerciseof the trustee's discretion, the court may authorize an assignee or a judgmentcreditor of the beneficiary to attach distributions of trust income orprincipal, or both, when the distributions are received by the beneficiary orby a third party for the benefit of the beneficiary.
4-10-502. Spendthrift provision.
(a) Repealed By Laws 2007, Ch. 155, 5.
(b) A term of a trust providing that the interest of abeneficiary is held subject to a "spendthrift trust," or words ofsimilar import, is sufficient to restrain both voluntary and involuntarytransfers of the beneficiary's interest.
(c) Other than by valid disclaimer under W.S. 2-1-401, abeneficiary may not transfer an interest in a trust in violation of aspendthrift provision and, a creditor or assignee of the beneficiary may notreach the interest or attach a distribution by the trustee unless and until itis received by the beneficiary.
4-10-503. Exceptions to spendthrift provision.
(a) As used in this section, "child" includes anyperson for whom an order or judgment for child support has been entered in thisor another state.
(b) Even if a trust contains a spendthrift provision, a personwho has a judgment or court order against the beneficiary for child support ormaintenance may obtain from a court an order attaching present or futuredistributions to, or for the benefit of, the beneficiary.
4-10-504. Discretionary trusts; effect of standard.
(a) Repealed By Laws 2007, Ch. 155, 5.
(b) Whether or not a trust contains a spendthrift provision, acreditor or assignee of a trust beneficiary may not attach the interest of thebeneficiary or compel the trustee to distribute any income or principal, orboth, from a trust when the terms of the trust provide that the trustee mayonly make discretionary distributions, even if:
(i) The trustee has discretion to make distributions forpurposes stated in a standard of distribution; or
(ii) The trustee has abused the discretion.
(c) Repealed By Laws 2007, Ch. 155, 5.
(d) This section shall not limit the right of a beneficiary tomaintain a judicial proceeding against a trustee for an abuse of discretion.However, a creditor or assignee of a beneficiary may not maintain, or compelthe beneficiary to maintain, a proceeding on behalf of the beneficiary or thecreditor or assignee.
(e) Repealed By Laws 2007, Ch. 155, 5.
(f) A discretionary trust created for the benefit of a disabledperson under W.S. 42-2-403(f)(i) and (ii) and 42 U.S.C. 1396p(d)(4)(A) and (C)shall have the protection of discretionary trusts provided under this sectionand such protection shall apply regardless of the date the trust was created.
4-10-505. Standards of distribution.
(a) Regardless of whether a beneficiary's interest in trustincome or principal or both is subject to a spendthrift provision, if the termsof the trust direct the trustee to make distributions of trust income orprincipal or both according to a standard, which includes distributions for thebeneficiary's maintenance or support, and the trustee has not complied with thestandard of distribution:
(i) A distribution may be ordered by the court to satisfy ajudgment or court order against the beneficiary for support or maintenance ofthe beneficiary's child; and
(ii) In the order of distribution, the court shall direct thetrustee to pay to or for the benefit of the child that portion of the trustincome or principal or both as is equitable under the circumstances, but notmore than the amount the trustee would have been required to distribute to orfor the benefit of the beneficiary had the trustee complied with the standardof distribution.
(b) Except as provided in subsection (a) of this section, acreditor or assignee of a beneficiary may not compel distributions from thetrust or attach distributions to be made to a beneficiary until thedistributions are received by the beneficiary, if the terms of the trust limitthe trustee's ability to make distributions by a standard of distribution, evenwhen the beneficiary is also a trustee or cotrustee of the trust.
(c) This section shall not limit the right of a beneficiary tomaintain a judicial proceeding against a trustee for a failure to comply with astandard for distributions to the beneficiary.
4-10-506. Creditor's claim against settlor.
(a) Whether or not the terms of a trust contain a spendthriftprovision, the following rules apply:
(i) During the lifetime of the settlor, the property of arevocable trust contributed by the settlor, and all income and appreciationthereon and proceeds thereof, is subject to claims of the settlor's creditors;
(ii) Except for discretionary trusts created in accordance withW.S. 4-10-504(f), with respect to an irrevocable trust without a spendthriftprovision, a creditor or assignee of the settlor may attach the maximum amountthat can be distributed to or for the settlor's benefit. If a trust has more thanone (1) settlor, the amount the creditor or assignee of a particular settlormay attach shall not exceed the settlor's interest in the portion of the trustattributable to that settlor's contribution.
(b) With respect to an irrevocable trust with a spendthriftprovision, a creditor or assignee of the right of a settlor are limited by theprovisions of W.S. 4-10-510 et seq.
(c) After the death of a settlor, and subject to the settlor'sright to direct the source from which liabilities will be paid, the portion ofa trust that was revocable at the settlor's death, and the property subjectthereto, is subject to claims of the settlor's creditors, costs ofadministration of the settlor's estate, the expenses of the settlor's funeraland disposal of remains to the extent the settlor's probate estate isinadequate to satisfy those claims, costs of administration and expenses.
(d) For purposes of this section, the holder of an unexercisedpower of withdrawal or power of appointment over trust property shall not betreated as a settlor of the trust regardless of whether the power remainsexercisable or has lapsed.
4-10-507. Limitation on action by creditors.
(a) Subject to the rights of persons dealing with a fiduciaryas provided in W.S. 4-10-1013, a creditor may file a claim against the assetsof the trust or commence a judicial proceeding to contest the validity of atrust that was revocable at the settlor's death within the earlier of:
(i) Two (2) years after the settlor's death;
(ii) One hundred twenty (120) days after a notice of the intentof the trustee to have the property of the settlor distributed as permittedunder the terms of the trust has been published once per week for two (2)consecutive weeks in a newspaper of general circulation in the county orcounties where venue of the trust is properly established as provided in W.S.4-10-204; or
(iii) One hundred twenty (120) days after known creditors havebeen mailed notice, by certified mail return receipt requested. The noticeshall inform the creditor:
(A) Of the trust's existence;
(B) Of the trustee's name and address;
(C) That the creditor shall make all claims in writing to thetrustee within one hundred twenty (120) days of the date of mailing of thenotice; and
(D) That time allowed for commencing a proceeding to contestthe validity of a trust or of the proposed distribution of the trustee is onehundred twenty (120) days from the date of mailing of the notice.
(b) A creditor failing to file his claim or to commence a judicialproceeding to contest the validity of a trust within the times provided isforever prohibited from making any claim against the assets of the settlor'strust or commencing any judicial proceeding against the settlor or the assetsof the settlor's trust.
4-10-508. Overdue mandatory distribution.
(a) In this section, "mandatory distribution" means adistribution of income or principal which the trustee is required to make to abeneficiary under the terms of the trust, including a distribution on terminationof the trust. The term does not include a discretionary distribution under W.S.4-10-504.
(b) If the trust includes a spendthrift provision, a creditoror assignee of a beneficiary may not compel a mandatory distribution or attacha mandatory distribution until it is received by the beneficiary.
(c) If a trust providing for a mandatory distribution does notinclude a spendthrift provision, a creditor or assignee of a beneficiary maycompel the trustee to make the mandatory distribution to the beneficiary wherethe distribution was not made within a reasonable time.
4-10-509. Personal obligations of trustee.
Trust property is not subject to the personal obligations of thetrustee, even if the trustee becomes insolvent or bankrupt.
4-10-510. Creation of qualified spendthrift trust.
(a) A settlor may create a qualified spendthrift trust with atrust instrument appointing a qualified trustee for qualified trust property,which instrument:
(i) States that the trust is a qualified spendthrift trustunder this section;
(ii) Expressly incorporates the law of this state to govern thevalidity, construction and administration of the trust;
(iii) Provides that the interest of the settlor in the trustincome or principal, or both, is held subject to a spendthrift provision underW.S. 4-10-502 and such provision of the trust instrument shall be deemed to bea restriction on the transfer of the settlor's beneficial interest in the trustthat is enforceable under applicable nonbankruptcy law within the meaning ofSection 541(c)(2) of the Bankruptcy Code;
(iv) Is irrevocable, but a trust instrument may not be deemedrevocable on account of its inclusion of one (1) or more of the following:
(A) A settlor's power to veto a distribution from the trust;
(B) An inter vivos or testamentary general or limited power ofappointment held by the settlor;
(C) The settlor's potential or actual receipt of income,including rights to the income retained in the trust instrument;
(D) The settlor's potential or actual receipt of income orprincipal from a charitable remainder unitrust or charitable remainder annuitytrust as those terms are defined in Section 664 of the Internal Revenue Code;
(E) The settlor's receipt each year of a percentage, not toexceed five percent (5%), specified in the trust instrument, of the initialvalue of the trust or its value determined from time to time pursuant to thetrust instrument;
(F) The settlor's potential or actual receipt or use ofprincipal when a qualified t