Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 206 (2025GS)

Sponsor

Sen. Weiler, Todd

Final action

Governor Signed 3/25/2025

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• creates and amends definitions related to estate planning;
• addresses the requirements for making a will, including the requirements for testamentary capacity;
• amends the rule against perpetuities for a power of appointment;
• clarifies the legal standard of proof for a guardianship;
• removes the requirement that a person alleged to be incapacitated be present at the guardianship hearing;
• allows a trustee to decant a trust in certain circumstances;
• addresses the capacity to make a power of attorney;
• addresses the capacity to appoint an agent for purposes of an advanced health care directive;
• modifies the capacity required for a custodian for Title 75A, Chapter 8, Uniform Transfers to Minors Act;
• recodifies Title 75B, Chapter 1, Part 3, Asset Protection Trust;
• defines asset protection trust to include an irrevocable trust for which the settlor may be made a beneficiary by the act or action of another person;
• provides that an affidavit of solvency for an asset protection trust is discretionary;
• provides that a person may only bring a cause of action or claim for relief regarding a fraudulent or voidable transfer for assets transferred to the asset protection trust within the limitations period;

Every vote on this bill

Bill text

54
7-5-1
75-1-201
75-2-205
75-2-501
75-2-1203
75-3-303
75-3-308
75-5-303
75-5-304
75-7-103
75-7-105
75-7-107
75-7-301
75-7-501
75-7-505
75-7-812.5
75-7-816
75A-2-102
75A-2-105
75A-3-101
75A-3-302
75A-5-203
75A-5-303
75A-5-304
75A-8-102
75B-1-101
75B-1-301
75B-1-302
75B-1-303
75B-1-304
75B-1-305
75B-1-306
75B-1-307
75B-1-308
75B-1-309
75B-1-310
0
Estate Planning Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Todd Weiler
House Sponsor: Nelson T. Abbott
LONG TITLE
General Description:
This bill addresses issues related to estate planning.
Highlighted Provisions:
This bill:
creates and amends definitions related to estate planning;
addresses the requirements for making a will, including the requirements for testamentary 
capacity;
amends the rule against perpetuities for a power of appointment;
clarifies the legal standard of proof for a guardianship;
removes the requirement that a person alleged to be incapacitated be present at the 
guardianship hearing;
allows a trustee to decant a trust in certain circumstances;
addresses the capacity to make a power of attorney;
addresses the capacity to appoint an agent for purposes of an advanced health care 
directive;
modifies the capacity required for a custodian for Title 75A, Chapter 8, Uniform 
Transfers to Minors Act;
recodifies Title 75B, Chapter 1, Part 3, Asset Protection Trust;
defines asset protection trust to include an irrevocable trust for which the settlor may be 
made a beneficiary by the act or action of another person;
provides that an affidavit of solvency for an asset protection trust is discretionary;
provides that a person may only bring a cause of action or claim for relief regarding a 
fraudulent or voidable transfer for assets transferred to the asset protection trust within 
the limitations period;
provides that, if a trustee makes multiple transfers to an asset protection trust, a 
distribution is considered to be made from the most recent transfer;
allows a trustee to convey property held in the asset protection trust to the settlor or 
beneficiary to secure financing;
provides that the property has to be reconveyed to the trustee within a certain time period 
to not be considered a transfer for purposes of the limitations period;
includes a coordination clause to address a technical conflict with a cross-reference 
change if this bill and H.B. 334, Guardianships and Supported Decision-Making 
Agreements Amendments, both pass and become law;
includes a coordination clause to coordinate technical and substantive changes if this bill 
and S.B. 100, Estate Planning Recodification, both pass and become law; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides coordination clauses.
Utah Code Sections Affected:
AMENDS:
7-5-1
, as last amended by Laws of Utah 2013, Chapter 364
75-1-201
, as last amended by Laws of Utah 2024, Chapter 364
75-2-205
, as last amended by Laws of Utah 2024, Chapter 364
75-2-501
, as repealed and reenacted by Laws of Utah 1998, Chapter 39
75-2-1203
, as last amended by Laws of Utah 2013, Chapter 364
75-3-303
, as last amended by Laws of Utah 2013, Chapter 364
75-3-308
, as last amended by Laws of Utah 1998, Chapter 39
75-5-303
, as last amended by Laws of Utah 2024, Chapter 113
75-5-304
, as last amended by Laws of Utah 2022, Chapter 441
75-7-103
, as last amended by Laws of Utah 2020, Chapter 348
75-7-105
, as last amended by Laws of Utah 2024, Chapter 364
75-7-107
, as last amended by Laws of Utah 2024, Chapter 364
75-7-301
, as last amended by Laws of Utah 2024, Chapter 364
75-7-501
, as last amended by Laws of Utah 2024, Chapter 364
75-7-505
, as last amended by Laws of Utah 2024, Chapter 364
75-7-816
, as last amended by Laws of Utah 2024, Chapter 364
75A-2-102
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-2-105
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-3-101
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-3-302
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-5-203
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-5-303
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-5-304
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-8-102
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75B-1-101
, as enacted by Laws of Utah 2024, Chapter 364
75B-1-301
, as enacted by Laws of Utah 2024, Chapter 364
75B-1-302
, as renumbered and amended by Laws of Utah 2024, Chapter 364
ENACTS:
75-7-812.5
, Utah Code Annotated 1953
75B-1-303
, Utah Code Annotated 1953
75B-1-304
, Utah Code Annotated 1953
75B-1-305
, Utah Code Annotated 1953
75B-1-306
, Utah Code Annotated 1953
75B-1-307
, Utah Code Annotated 1953
75B-1-308
, Utah Code Annotated 1953
75B-1-309
, Utah Code Annotated 1953
75B-1-310
, Utah Code Annotated 1953
Utah Code Sections Affected by Coordination Clause:
AMENDS:
7-5-1
, as last amended by Laws of Utah 2013, Chapter 364
75-7-105
, as last amended by Laws of Utah 2024, Chapter 364
75-7-301
, as last amended by Laws of Utah 2024, Chapter 364
75-7-501
, as last amended by Laws of Utah 2024, Chapter 364
75-7-505
, as last amended by Laws of Utah 2024, Chapter 364
75-7-812.5
, Utah Code Annotated 1953
75A-5-203
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-5-303
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75A-5-304
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75B-1-101
, as enacted by Laws of Utah 2024, Chapter 364
75B-1-302
, as renumbered and amended by Laws of Utah 2024, Chapter 364
75B-1-304
, Utah Code Annotated 1953
75B-1-308
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1, Section 
7-5-1
 is amended to read:
7-5-1
. Definitions -- Allowable trust companies -- Exceptions.
(1)
As used in this chapter:
(a)
"Business trust" means an entity engaged in a trade or business that is created by a 
declaration of trust that transfers property to trustees, to be held and managed by 
them for the benefit of persons holding certificates representing the beneficial interest 
in the trust estate and assets.
(b)
"Trust business" means, except as provided in Subsection 
(1)(c)
, a business in which 
one acts in any agency or fiduciary capacity, including that of personal 
representative, executor, administrator, conservator, guardian, assignee, receiver, 
depositary, or trustee under appointment as trustee for any purpose permitted by law
, 
including the definition of "trust" set forth in Subsection 
75-1-201(55)
.
(c)
"Trust business" does not include the following means of holding money, assets, or 
other property:
(i)
money held in a client trust account by an attorney authorized to practice law in 
this state;
(ii)
money held in connection with the purchase or sale of real estate by a person 
licensed as a principal broker in accordance with 
Title 61, Chapter 2f, Real Estate 
Licensing and Practices Act
;
(iii)
money or other assets held in escrow by a person authorized by the department in 
accordance with 
Chapter 22, Regulation of Independent Escrow Agents
, or by the 
Utah Insurance Department to act as an escrow agent in this state;
(iv)
money held by a homeowners' association or similar organization to pay 
maintenance and other related costs for commonly owned property;
(v)
money held in connection with the collection of debts or payments on loans by a 
person acting solely as the agent or representative or otherwise at the sole 
direction of the person to which the debt or payment is owed, including money 
held by an escrow agent for payment of taxes or insurance;
(vi)
money and other assets held in trust on an occasional or isolated basis by a 
person who does not represent that the person is engaged in the trust business in 
Utah;
(vii)
money or other assets found by a court to be held in an implied, resulting, or 
constructive trust;
(viii)
money or other assets held by a court appointed conservator, guardian, receiver, 
trustee, or other fiduciary if:
(A)
the conservator, receiver, guardian, trustee, or other fiduciary is responsible to 
the court in the same manner as a personal representative under 
Title 75, 
Chapter 3, Part 5, Supervised Administration
, or as a receiver under Rule 66, 
Utah Rules of Civil Procedure; and
(B)
the conservator, trustee, or other fiduciary is a certified public accountant or 
has qualified for and received a designation as a certified financial planner, 
chartered financial consultant, certified financial analyst, or similar designation 
suitable to the court, that evidences the conservator's, trustee's, or other 
fiduciary's professional competence to manage financial matters;
(ix)
money or other assets held by a credit services organization operating in 
compliance with 
Title 13, Chapter 21, Credit Services Organizations Act
;
(x)
money, securities, or other assets held in a customer account in connection with 
the purchase or sale of securities by a regulated securities broker, dealer, or 
transfer agent; or
(xi)
money, assets, and other property held in a business trust for the benefit of 
holders of certificates of beneficial interest if the fiduciary activities of the 
business trust are merely incidental to conducting business in the business trust 
form.
(d)
"Trust company" means an institution authorized to engage in the trust business 
under this chapter. Only the following may be a trust company:
(i)
a Utah depository institution or its wholly owned subsidiary;
(ii)
an out-of-state depository institution authorized to engage in business as a 
depository institution in Utah or its wholly owned subsidiary;
(iii)
a corporation, including a credit union service organization, owned entirely by 
one or more federally insured depository institutions as defined in Subsection 
7-1-103(8)
;
(iv)
a direct or indirect subsidiary of a depository institution holding company that 
also has a direct or indirect subsidiary authorized to engage in business as a 
depository institution in Utah; and
(v)
any other corporation continuously and lawfully engaged in the trust business in 
this state since before July 1, 1981.
(2)
Only a trust company may engage in the trust business in this state.
(3)
The requirements of this chapter do not apply to:
(a)
an institution authorized to engage in a trust business in another state that is engaged 
in trust activities in this state solely to fulfill its duties as a trustee of a trust created 
and administered in another state;
(b)
a national bank, federal savings bank, federal savings and loan association, or federal 
credit union authorized to engage in business as a depository institution in Utah, or 
any wholly owned subsidiary of any of these, to the extent the institution is 
authorized by its primary federal regulator to engage in the trust business in this state; 
or
(c)
a state agency that is otherwise authorized by statute to act as a conservator, receiver, 
guardian, trustee, or in any other fiduciary capacity.
Section 2, Section 
75-1-201
 is amended to read:
75-1-201
. Title definitions.
As used in this title:
(1)
"Agent" includes an attorney-in-fact under a durable or nondurable power of attorney, 
an individual authorized to make decisions concerning another's health care, and an 
individual authorized to make decisions for another under a natural death act.
(2)
"Application" means a written request to the registrar for an order of informal probate or 
appointment under 
Chapter 3, Part 3
, Informal Probate and Appointment Proceedings.
(3)
(a)
"Beneficiary," as it relates to trust beneficiaries, includes:
(i)
a person who has any present or future interest, vested or contingent; and
(ii)
the owner of an interest by assignment or other transfer.
(b)
"Beneficiary," as it relates to a charitable trust, includes any person entitled to 
enforce the trust.
(c)
"Beneficiary," as it relates to a beneficiary of a beneficiary designation, means a 
beneficiary of:
(i)
an insurance or annuity policy;
(ii)
an account with POD designation;
(iii)
a security registered in beneficiary form (TOD);
(iv)
a pension, profit-sharing, retirement, or similar benefit plan; or
(v)
 other nonprobate transfer at death.
(d)
"Beneficiary," as it relates to a beneficiary designated in a governing instrument, 
includes:
(i)
a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary 
designation, a donee, appointee, or taker in default of a power of appointment; and
(ii)
a person in whose favor a power of attorney or a power held in any individual, 
fiduciary, or representative capacity is exercised.
(4)
"Beneficiary designation" means a governing instrument naming a beneficiary of an 
insurance or annuity policy, of an account with POD designation, of a security registered 
in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit 
plan, or other nonprobate transfer at death.
(5)
(a)
"Child" includes any individual entitled to take as a child under this title by 
intestate succession from the parent whose relationship is involved.
(b)
"Child" does not include an individual who is only a stepchild, a foster child, a 
grandchild, or any more remote descendant.
(6)
(a)
"Claims," in respect to estates of decedents and protected persons, includes 
liabilities of the decedent or protected person, whether arising in contract, in tort, or 
otherwise, and liabilities of the estate which arise at or after the death of the decedent 
or after the appointment of a conservator, including funeral expenses and expenses of 
administration.
(b)
"Claims" does not include estate or inheritance taxes, or demands or disputes 
regarding title of a decedent or protected person to specific assets alleged to be 
included in the estate.
(7)
"Community property with a right of survivorship" means joint tenants with the right of 
survivorship.
(8)
"Conservator" means a person who is appointed by a court to manage the estate of a 
protected person.
(9)
"Court" means any of the courts of record in this state having jurisdiction in matters 
relating to the affairs of decedents.
(10)
"Descendant" means all of an individual's descendants of all generations, with the 
relationship of parent and child at each generation being determined by the definition of 
child and parent contained in this title.
(11)
"Devise," when used as a noun, means a testamentary disposition of real or personal 
property and, when used as a verb, means to dispose of real or personal property by will.
(12)
"Devisee" means any person designated in a will to receive a devise. For the purposes 
of 
Chapter 3, Probate of Wills and Administration
, in the case of a devise to an existing 
trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee, 
and the beneficiaries are not devisees.
(13)
"Disability" means cause for a protective order as described by Section 
75-5-401
.
(14)
"Distributee" means any person who has received property of a decedent from his 
personal representative other than as a creditor or purchaser. A testamentary trustee is a 
distributee only to the extent of distributed assets or increment thereto remaining in his 
hands. A beneficiary of a testamentary trust to whom the trustee has distributed 
property received from a personal representative is a distributee of the personal 
representative. For purposes of this provision, "testamentary trustee" includes a trustee 
to whom assets are transferred by will, to the extent of the devised assets.
(15)
"Estate" includes the property of the decedent, trust, or other person whose affairs are 
subject to this title as originally constituted and as it exists from time to time during 
administration.
(16)
"Exempt property" means that property of a decedent's estate which is described in 
Section 
75-2-403
.
(17)
"Fiduciary" includes a personal representative, guardian, conservator, and trustee.
(18)
"Foreign personal representative" means a personal representative of another 
jurisdiction.
(19)
"Formal proceedings" means proceedings conducted before a judge with notice to 
interested persons.
(20)
"General personal representative" does not include a special administrator.
(21)
"General power of appointment" means the same as that term is defined in Section 
75A-4-102
.
(21)
(22)
"Governing instrument" means a deed, will, trust, insurance or annuity policy, 
account with POD designation, security registered in beneficiary form (TOD), pension, 
profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a 
power of appointment or a power of attorney, or a dispositive, appointive, or nominative 
instrument of any similar type.
(22)
(23)
(a)
"Guardian" means a person who has qualified as a guardian of a minor or 
incapacitated person pursuant to testamentary or court appointment, or by written 
instrument as provided in Section 
75-5-202.5
.
(b)
"Guardian" does not include a person who is merely a guardian ad litem.
(23)
(24)
"Heirs," except as controlled by Section 
75-2-711
, means persons, including the 
surviving spouse and state, who are entitled under the statutes of intestate succession to 
the property of a decedent.
(24)
(25)
"Incapacitated" means 
a judicial determination after proof by clear and 
convincing evidence that 
an adult's ability to do the following is
 functionally
 impaired 
to the extent that the individual lacks the ability, even with appropriate technological 
assistance, to meet the essential requirements for financial protection or physical health, 
safety, or self-care:
(a)
receive and evaluate information;
(b)
make and communicate decisions; or
(c)
provide for necessities such as food, shelter, clothing, health care, or safety.
(25)
(26)
"Incapacity" means 
incapacitated
the state of being incapacitated
.
(26)
(27)
"Informal proceedings" mean a proceeding conducted without notice to 
interested persons by an officer of the court acting as a registrar for probate of a will or 
appointment of a personal representative.
(27)
(28)
(a)
"Interested person" includes heirs, devisees, children, spouses, creditors, 
beneficiaries, and any others having a property right in or claim against a trust estate 
or the estate of a decedent, ward, or protected person. The meaning of interested 
person as it relates to particular persons may vary from time to time and is 
determined according to the particular purposes of, and matter involved in, any 
proceeding.
(b)
"Interested person" includes persons having priority for appointment as personal 
representative, other fiduciaries representing interested persons, a settlor of a trust, if 
living, or the settlor's legal representative, if any, if the settlor is living but 
incapacitated. 
(28)
(29)
"Issue" means a descendant of an individual.
(29)
(30)
(a)
"Joint tenants with the right of survivorship" includes coowners of property 
held under circumstances that entitle one or more to the whole of the property on the 
death of the other.
(b)
"Joint tenants with the right of survivorship" does not include forms of coownership 
registration in which the underlying ownership of each party is in proportion to that 
party's contribution.
(30)
(31)
"Lease" includes an oil, gas, or other mineral lease.
(31)
(32)
"Letters" includes letters testamentary, letters of guardianship, letters of 
administration, and letters of conservatorship.
(32)
(33)
"Minor" means a person who is under 18 years old.
(33)
(34)
"Minor protected person" means a minor for whom a conservator has been 
appointed because of minority.
(34)
(35)
"Minor ward" means a minor for whom a guardian has been appointed solely 
because of minority.
(35)
(36)
"Mortgage" means any conveyance, agreement, or arrangement in which 
property is used as security.
(37)
"Nongeneral power of appointment" means the same as that term is defined in Section 
75A-4-102
.
(36)
(38)
"Nonresident decedent" means a decedent who was domiciled in another 
jurisdiction at the time of the decedent's death.
(37)
(39)
"Organization" includes a corporation, limited liability company, business trust, 
estate, trust, partnership, joint venture, association, government or governmental 
subdivision or agency, or any other legal or commercial entity.
(38)
(40)
(a)
"Parent" includes any person entitled to take, or who would be entitled to 
take if the child died without a will, as a parent under this title by intestate succession 
from the child whose relationship is in question.
(b)
"Parent" does not include any person who is only a stepparent, foster parent, or 
grandparent.
(39)
(41)
"Payor" means a trustee, insurer, business entity, employer, government, 
governmental agency or subdivision, or any other person authorized or obligated by law 
or a governing instrument to make payments.
(40)
(42)
"Person" means an individual or an organization.
(41)
(43)
"Personal representative" includes executor, administrator, successor personal 
representative, special administrator, and persons who perform substantially the same 
function under the law governing their status.
(42)
(44)
"Petition" means a written request to the court for an order after notice.
(45)
"Power of appointment" means the same as that term is defined in Section 
75A-4-102
.
(43)
(46)
"Proceeding" includes action at law and suit in equity.
(44)
(47)
"Property" includes both real and personal property or any interest therein and 
means anything that may be the subject of ownership.
(45)
(48)
"Protected person" means a person for whom a conservator has been appointed. 
(46)
(49)
"Protective proceeding" means a proceeding described in Section 
75-5-401
.
(47)
(50)
"Record" means information that is inscribed on a tangible medium or that is 
stored in an electronic or other medium and is retrievable in perceivable form.
(48)
(51)
"Registrar" means the official of the court designated to perform the functions of 
registrar as provided in Section 
75-1-307
.
(49)
(52)
"Security" includes any note, stock, treasury stock, bond, debenture, evidence of 
indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease 
or in payments out of production under such a title or lease, collateral trust certificate, 
transferable share, voting trust certificate, and, in general, any interest or instrument 
commonly known as a security, or any certificate of interest or participation, any 
temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or 
right to subscribe to or purchase, any of the foregoing.
(50)
(53)
"Settlement," in reference to a decedent's estate, includes the full process of 
administration, distribution, and closing.
(51)
(54)
"Sign" means, with present intent to authenticate or adopt a record other than a 
will:
(a)
to execute or adopt a tangible symbol; or
(b)
to attach to or logically associate with the record an electronic symbol, sound, or 
process.
(52)
(55)
"Special administrator" means a personal representative as described in Sections 
75-3-614
 through 
75-3-618
.
(53)
(56)
"State" means a state of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, any territory or insular possession subject to the 
jurisdiction of the United States, or a Native American tribe or band recognized by 
federal law or formally acknowledged by a state.
(54)
(57)
"Successor personal representative" means a personal representative, other than a 
special administrator, who is appointed to succeed a previously appointed personal 
representative.
(55)
(58)
"Successors" means persons, other than creditors, who are entitled to property of 
a decedent under the decedent's will or this title.
(56)
(59)
"Supervised administration" means the proceedings described in 
Chapter 3, Part 5
, 
Supervised Administration.
(57)
(60)
(a)
"Survive" means, except for 
Chapter 6, Part 3, Uniform Transfer on Death 
Security Registration Act
, that an individual has neither predeceased an event, 
including the death of another individual, nor is considered to have predeceased an 
event under Section 
75-2-104
 or 
75-2-702
. 
(b)
"Survive" includes its derivatives, such as "survives," "survived," "survivor," and 
"surviving."
(58)
(61)
"Testacy proceeding" means a proceeding to establish a will or determine 
intestacy.
(59)
"Testator" includes an individual of either sex.
(62)
"Testator" means an individual, of either sex, who has made a will.
(60)
(63)
(a)
"Trust" includes:
(i)
a health savings account, as defined in Section 223of the Internal Revenue Code;
(ii)
an express trust, private or charitable, with additions thereto, wherever and 
however created; or
(iii)
a trust created or determined by judgment or decree under which the trust is to be 
administered in the manner of an express trust. 
(b)
"Trust" does not include:
(i)
a constructive trust;
(ii)
a resulting trust;
(iii)
a conservatorship;
(iv)
a personal representative;
(v)
a trust account as defined in Chapter 6, Nonprobate Transfers;
(vi)
a custodial arrangement under Title 75A, Chapter 8, Uniform Transfers To 
Minors Act;
(vii)
a business trust providing for certificates to be issued to beneficiaries;
(viii)
a common trust fund;
(ix)
a voting trust;
(x)
a preneed funeral plan under Title 58, Chapter 9, Funeral Services Licensing Act;
(xi)
a security arrangement;
(xii)
a liquidation trust;
(xiii)
a trust for the primary purpose of paying debts, dividends, interest, salaries, 
wages, profits, pensions, or employee benefits of any kind; or
(xiv)
any arrangement under which a person is nominee or escrowee for another.
(61)
(64)
"Trustee" includes an original, additional, and successor trustee, and cotrustee, 
whether or not appointed or confirmed by the court.
(62)
(65)
"Ward" means a person for whom a guardian has been appointed. 
(63)
(66)
"Will" includes codicil and any testamentary instrument which merely appoints 
an executor, revokes or revises another will, nominates a guardian, or expressly excludes 
or limits the right of an individual or class to succeed to property of the decedent passing 
by intestate succession.
Section 3, Section 
75-2-205
 is amended to read:
75-2-205
. Decedent's nonprobate transfers to others.
Unless excluded under Section 
75-2-208
, the value of the augmented estate includes the 
value of the decedent's nonprobate transfers to others, not included under Section 
75-2-204
, of 
any of the types described in this section, in the amount provided respectively for each type of 
transfer:
(1)
Property owned or owned in substance by the decedent immediately before death that 
passed outside probate at the decedent's death. Property included under this category 
consists of the property described in this Subsection 
(1)
.
(a)
(i)
Property over which the decedent alone, immediately before death, held a 
presently exercisable general power of appointment.
(ii)
The amount included is the value of the property subject to the power, to the 
extent the property passed at the decedent's death, by exercise, release, lapse, in 
default, or otherwise, to or for the benefit of any person other than the decedent's 
estate or surviving spouse.
(b)
(i)
The decedent's fractional interest in property held by the decedent in joint 
tenancy with the right of survivorship.
(ii)
The amount included is the value of the decedent's fractional interest, to the 
extent the fractional interest passed by right of survivorship at the decedent's death 
to a surviving joint tenant other than the decedent's surviving spouse.
(c)
(i)
The decedent's ownership interest in property or accounts held in POD, TOD, 
or co-ownership registration with the right of survivorship.
(ii)
The amount included is the value of the decedent's ownership interest, to the 
extent the decedent's ownership interest passed at the decedent's death to or for the 
benefit of any person other than the decedent's estate or surviving spouse.
(d)
(i)
Proceeds of insurance, including accidental death benefits, on the life of the 
decedent, if the decedent owned the insurance policy immediately before death or 
if and to the extent the decedent alone and immediately before death held a 
presently exercisable general power of appointment over the policy or its proceeds.
(ii)
The amount included:
(A)
is the value of the proceeds, to the extent they were payable at the decedent's 
death to or for the benefit of any person other than the decedent's estate or 
surviving spouse; and
(B)
may not exceed the greater of the cash surrender value of the policy 
immediately prior to the death of the decedent or the amount of premiums paid 
on the policy during the decedent's life.
(2)
Property transferred in any of the forms described in this Subsection 
(2)
 by the decedent 
during marriage:
(a)
(i)
Any irrevocable transfer in which the decedent retained the right to the 
possession or enjoyment of, or to the income from, the property if and to the 
extent the decedent's right terminated at or continued beyond the decedent's death.
(ii)
An irrevocable transfer in trust which includes a restriction on transfer of the 
decedent's interest as settlor and beneficiary as described in Section 
75B-1-302
75B-1-303
.
(iii)
The amount included is the value of the fraction of the property to which the 
right or restriction related, to the extent the fraction of the property passed outside 
probate to or for the benefit of any person other than the decedent's estate or 
surviving spouse.
(b)
(i)
Any transfer in which the decedent created a power over income or property, 
exercisable by the decedent alone or in conjunction with any other person, or 
exercisable by a nonadverse party, to or for the benefit of the decedent, creditors 
of the decedent, the decedent's estate, or creditors of the decedent's estate.
(ii)
The amount included with respect to a power over property is the value of the 
property subject to the power, and the amount included with respect to a power 
over income is the value of the property that produces or produced the income, to 
the extent the power in either case was exercisable at the decedent's death to or for 
the benefit of any person other than the decedent's surviving spouse or to the 
extent the property passed at the decedent's death, by exercise, release, lapse, in 
default, or otherwise, to or for the benefit of any person other than the decedent's 
estate or surviving spouse.
(iii)
If the power is a power over both income and property and Subsection 
(2)(b)(ii)
produces different amounts, the amount included is the greater amount.
(3)
Property that passed during marriage and during the two-year period next preceding the 
decedent's death as a result of a transfer by the decedent if the transfer was of any of the 
types described in this Subsection (3).
(a)
(i)
Any property that passed as a result of the termination of a right or interest in, 
or power over, property that would have been included in the augmented estate 
under Subsection 
(1)(a)
, (b), or 
(c)
, or under Subsection 
(2)
, if the right, interest, 
or power had not terminated until the decedent's death.
(ii)
The amount included is the value of the property that would have been included 
under Subsection 
(1)(a)
, (b), (c), or Subsection 
(2)
 if the property were valued at 
the time the right, interest, or power terminated, and is included only to the extent 
the property passed upon termination to or for the benefit of any person other than 
the decedent or the decedent's estate, spouse, or surviving spouse.
(iii)
(A)
As used in this Subsection 
(3)(a)
, "termination," with respect to a right or 
interest in property, occurs when the right or interest terminated by the terms of 
the governing instrument or the decedent transferred or relinquished the right 
or interest, and, with respect to a power over property, occurs when the power 
terminated by exercise, release, lapse, default, or otherwise.
(B)
With respect to a power described in Subsection 
(1)(a)
, "termination" occurs 
when the power terminated by exercise or release, but not otherwise.
(b)
(i)
Any transfer of or relating to an insurance policy on the life of the decedent if 
the proceeds would have been included in the augmented estate under Subsection 
(1)(d)
 had the transfer not occurred.
(ii)
The amount included:
(A)
is the value of the insurance proceeds to the extent the proceeds were payable 
at the decedent's death to or for the benefit of any person other than the 
decedent's estate or surviving spouse; and
(B)
may not exceed the greater of the cash surrender value of the policy 
immediately prior to the death of the decedent or the amount of premiums paid 
on the policy during the decedent's life.
(c)
(i)
Any transfer of property, to the extent not otherwise included in the augmented 
estate, made to or for the benefit of a person other than the decedent's surviving 
spouse.
(ii)
The amount included is the value of the transferred property to the extent the 
aggregate transfers to any one donee in either of the two years exceeded $10,000.
Section 4, Section 
75-2-501
 is amended to read:
75-2-501
. Who may make will -- Testamentary capacity.
An individual 18 or more years of age who is of sound mind may make a will.
(1)
An individual may make a will if the individual:
(a)
is 18 years old or older; and
(b)
has testamentary capacity at the time that the will is executed.
(2)
A testator has testamentary capacity under Subsection 
(1)
(b)
 if the testator:
(a)
can identify the testator's family members or other individuals in the testator's life;
(b)
understands the testator's relationship to the individuals described in Subsection 
(2)(a)
;
(c)
understands the nature and extent of the testator's property; and
(d)
can form a plan in the testator's mind for the disposition of the testator's property.
(3)
A testator is not required to have any knowledge or understanding of the laws of 
inheritance by intestate succession for the testator to have testamentary capacity under 
Subsection 
(2)
.
(4)
There is a rebuttable presumption that testamentary capacity exists at the time that a will 
was executed even if the testator is subject to a guardianship or conservatorship or is 
otherwise unable to independently manage the testator's affairs.
Section 5, Section 
75-2-1203
 is amended to read:
75-2-1203
. Validity of nonvested property interest -- Validity of general power of 
appointment subject to a condition precedent -- Validity of nongeneral or testamentary 
power of appointment -- Effect of certain "later-of" type language.
(1)
A nonvested property interest is invalid unless within 1,000 years after the interest's 
creation the interest vests or terminates.
(2)
A general power of appointment not presently exercisable because of a condition 
precedent is invalid unless within 1,000 years after the general power of appointment's 
creation the power of appointment is irrevocably exercised or terminates.
(3)
A nongeneral power of appointment or a general testamentary power of appointment is 
invalid unless within 1,000 years after its creation the power of appointment is 
irrevocably exercised or terminates.
(4)
The language in a governing instrument is inoperative to the extent it produces a period 
of time that exceeds 1,000 years after if, in measuring a period from the creation of a 
trust or other property arrangement, the language:
(a)
seeks to disallow the vesting or termination of any interest or trust beyond;
(b)
seeks to postpone the vesting or termination of any interest or trust until; or
(c)
seeks to operate in effect in any similar fashion upon, the later of:
(i)
the expiration of a period of time not exceeding 1,000 years; or
(ii)
the expiration of a period of time that exceeds or might exceed 1,000 years.
(5)
If a nongeneral power of appointment is exercised to create a new presently exercisable 
general power of appointment, all property interests subject to that new presently 
exercisable general power of appointment are invalid unless, within 1,000 years after the 
creation of the new presently exercisable general power of appointment, the property 
interests that are subject to the new presently exercisable general power of appointment 
vest or terminate.
(6)
If a nongeneral power of appointment is exercised to create a new or successive 
nongeneral power of appointment or a new or successive testamentary general power of 
appointment, all property interests subject to the exercise of that new or successive 
nongeneral or testamentary general power of appointment are invalid unless, within 
1,000 years from the time of creation of the original instrument or conveyance creating 
the original nongeneral power of appointment that is exercised to create a new or 
successive nongeneral or testamentary general power of appointment, the property 
interests that are subject to the new or successive nongeneral or testamentary general 
power of appointment vest or terminate.
(5)
If a power of appointment is exercised to create a new power of appointment, all 
property interests subject to that new power of appointment are invalid unless the 
property interests that are subject to the new power of appointment vest or terminate 
within 1,000 years after the creation of the new power of appointment.
Section 6, Section 
75-3-303
 is amended to read:
75-3-303
. Informal probate -- Proof and findings required.
(1)
In an informal proceeding for original probate of a will, the registrar shall determine 
whether:
(a)
the application is complete;
(b)
the applicant has made oath or affirmation that the statements contained in the 
application are true to the best of his knowledge and belief;
(c)
the applicant appears from the application to be an interested person
 as defined in 
Subsection 
75-1-201(24)
;
(d)
on the basis of the statements in the application, venue is proper;
(e)
an original, duly executed and apparently unrevoked will was presented to the court 
for electronic storage and electronic filing and is now in the possession of the 
applicant or the applicant's attorney, or is in the registrar's possession;
(f)
any notice required by Section 
75-3-204
 has been given and that the application is 
not within Section 
75-3-304
; and
(g)
it appears from the application that the time limit for original probate has not expired.
(2)
The application shall be denied if it indicates that a personal representative has been 
appointed in another county of this state or except as provided in Subsection 
(4)
, if it 
appears that this or another will of the decedent has been the subject of a previous 
probate order.
(3)
A will which appears to have the required signatures and which contains an attestation 
clause showing that requirements of execution under Section 
75-2-502
, 
75-2-503
, or 
75-2-506
 have been met shall be probated without further proof. In other cases, the 
registrar may assume execution if the will appears to have been properly executed, or he 
may accept a sworn statement or affidavit of any person having knowledge of the 
circumstances of execution, whether or not the person was a witness to the will.
(4)
Informal probate of a will which has been previously probated elsewhere may be 
granted at any time upon written application by any interested person, together with 
deposit of an authenticated copy of the will and of the statement probating it from the 
office or court where it was first probated.
(5)
A will from a place which does not provide for probate of a will after death and which is 
not eligible for probate under Subsection 
(1)
 above may be probated in this state upon 
receipt by the registrar of a duly authenticated copy of the will and a duly authenticated 
certificate of its legal custodian that the copy filed is a true copy and that the will has 
become operative under the law of the other place.
Section 7, Section 
75-3-308
 is amended to read:
75-3-308
. Informal appointment proceedings -- Proof and findings required.
(1)
In informal appointment proceedings, the registrar shall determine whether:
(a)
the application for informal appointment of a personal representative is complete;
(b)
the applicant has made oath or affirmation that the statements contained in the 
application are true to the best of his knowledge and belief;
(c)
the applicant appears from the application to be an interested person
 as defined in 
Subsection 
75-1-201(24)
;
(d)
on the basis of the statements in the application, venue is proper;
(e)
any will to which the requested appointment relates has been formally or informally 
probated; but this requirement does not apply to the appointment of a special 
administrator;
(f)
any notice required by Section 
75-3-204
 has been given; and
(g)
from the statements in the application, the person whose appointment is sought has 
priority entitling him to the appointment.
(2)
Unless Section 
75-3-612
 controls, the application shall be denied if it indicates that a 
personal representative who has not filed a written statement of resignation as provided 
in Subsection 
75-3-610(3)
 has been appointed in this or another county of this state, that 
(unless the applicant is the domiciliary personal representative or his nominee) the 
decedent was not domiciled in this state, and that a personal representative whose 
appointment has not been terminated has been appointed by a court in the state of 
domicile, or that other requirements of this section have not been met.
Section 8, Section 
75-5-303
 is amended to read:
75-5-303
. Procedure for court appointment of a guardian of an incapacitated 
person.
(1)
An incapacitated person or any person interested in the incapacitated person's welfare 
may petition for a finding of incapacity and appointment of a guardian.
(2)
(a)
Upon the filing of a petition, the court shall set a date for hearing on the issues of 
incapacity.
(b)
Unless the allegedly incapacitated person has counsel of the person's own choice, the 
court shall appoint an attorney to represent the person in the proceeding the cost of 
which shall be paid by the person alleged to be incapacitated, unless the allegedly 
incapacitated person and the allegedly incapacitated person's parents are indigent.
(c)
If the court determines that the petition is without merit, the attorney fees and court 
costs shall be paid by the person filing the petition.
(d)
If the court appoints the petitioner or the petitioner's nominee as guardian of the 
incapacitated person, regardless of whether the nominee is specified in the moving 
petition or nominated during the proceedings, the petitioner shall be entitled to 
receive from the incapacitated person reasonable attorney fees and court costs 
incurred in bringing, prosecuting, or defending the petition.
(3)
The legal representation of the incapacitated person by an attorney shall terminate upon 
the appointment of a guardian, unless:
(a)
there are separate conservatorship proceedings still pending before the court 
subsequent to the appointment of a guardian;
(b)
there is a timely filed appeal of the appointment of the guardian or the determination 
of incapacity; or
(c)
upon an express finding of good cause, the court orders otherwise.
(4)
The person alleged to be incapacitated may be examined by a physician or physician 
assistant appointed by the court who shall submit a report in writing to the court and 
may be interviewed by a visitor sent by the court. The visitor also may interview the 
person seeking appointment as guardian, visit the present place of abode of the person 
alleged to be incapacitated and the place it is proposed that the person will be detained 
or reside if the requested appointment is made, conduct other investigations or 
observations as directed by the court, and submit a report in writing to the court.
(5)
(a)
(i)
The person alleged to be incapacitated shall be present at the hearing 
in 
person 
and see or hear all evidence bearing upon the person's condition. 
(ii)
If the person seeking the guardianship requests a waiver of presence of the person 
alleged to be incapacitated, the court shall order an investigation by a court visitor, 
the costs of which shall be paid by the person seeking the guardianship.
(b)
The investigation by a court visitor is not required if there is clear and convincing 
evidence from a physician that the person alleged to be incapacitated has:
(i)
fourth stage Alzheimer's Disease;
(ii)
extended comatosis; or
(iii)
(A)
an intellectual disability; and
(B)
an intelligence quotient score under 25.
(c)
The person alleged to be incapacitated is entitled to be represented by counsel, to 
present evidence, to cross-examine witnesses, including the court-appointed 
physician and the visitor, and to trial by jury. The issue may be determined at a 
closed hearing without a jury if the person alleged to be incapacitated or the person's 
counsel so requests.
(d)
Counsel for the person alleged to be incapacitated
, as defined in Subsection 
75-1-201
(22),
 is not required if:
(i)
the person is the biological or adopted child of the petitioner;
(ii)
the value of the person's entire estate does not exceed $20,000 as established by 
an affidavit of the petitioner in accordance with Section 
75-3-1201
;
(iii)
the person appears in court with the petitioner;
(iv)
the person is given the opportunity to communicate, to the extent possible, the 
person's acceptance of the appointment of petitioner;
(v)
no attorney from the state court's list of attorneys who have volunteered to 
represent respondents in guardianship proceedings is able to provide counsel to 
the person within 60 days of the date of the appointment described in Subsection 
(2)
;
(vi)
the court is satisfied that counsel is not necessary in order to protect the interests 
of the person; and
(vii)
the court appoints a visitor under Subsection 
(4)
.
Section 9, Section 
75-5-304
 is amended to read:
75-5-304
. Findings -- Limited guardianship preferred -- Order of appointment.
(1)
The court may appoint a guardian as requested if the court 
is satisfied 
finds, by clear 
and convincing evidence, 
that:
(a)
the person for whom a guardian is sought is incapacitated; and
(b)
the appointment is necessary or desirable as a means of providing continuing care 
and supervision of the incapacitated person.
(2)
(a)
(i)
The court shall prefer a limited guardianship and may only grant a full 
guardianship if no other alternative exists.
(ii)
If the court does not grant a limited guardianship, a specific finding shall be made 
that nothing less than a full guardianship is adequate.
(b)
(i)
An order of appointment of a limited guardianship shall state the limitations of 
the guardianship.
(ii)
Letters of guardianship for a limited guardianship shall state the limitations of the 
guardianship unless the court determines for good cause shown that a limitation 
should not be listed in the letters.
(3)
(a)
Except as provided in Subsection 
(3)(b)
, a guardian appointed by will or written 
instrument, under Section 
75-5-301
, whose appointment has not been prevented or 
nullified under Subsection 
75-5-301(4)
, has priority over any guardian who may be 
appointed by the court.
(b)
Upon a finding that the testamentary or instrumental guardian has failed to accept the 
appointment within 30 days after notice of the guardianship proceeding, the court 
may:
(i)
dismiss the proceeding; or
(ii)
enter any other appropriate order.
(4)
If the court grants a guardian with the power to make or assist with health care decisions 
for an incapacitated person, the court shall include in the order of appointment the name 
of any interested person for whom the guardian must notify of any significant health 
care or treatment received by the incapacitated person.
Section 10, Section 
75-7-103
 is amended to read:
75-7-103
. Definitions.
(1)
In
As used in
 this chapter:
(a)
"Action," with respect to an act of a trustee, includes a failure to act.
(b)
"Beneficiary" means a person that:
(i)
has a present or future beneficial interest in a trust, vested or contingent; or
(ii)
in a capacity other than that of trustee, holds a power of appointment over trust 
property.
(c)
"Charitable trust" means a trust, or portion of a trust, created for a charitable purpose 
described in Subsection 
75-7-405
(1)
.
(d)
"Environmental law" means a federal, state, or local law, rule, regulation, or 
ordinance relating to protection of the environment.
(e)
"Interests of the beneficiaries" means the beneficial interests provided in the terms of 
the trust.
(f)
"Jurisdiction," with respect to a geographic area, includes a state or country.
(g)
"Power of withdrawal" means a presently exercisable general power of appointment 
other than a power exercisable only upon consent of the trustee or a person holding 
an adverse interest.
(h)
"Qualified beneficiary" means a beneficiary who, on the date the beneficiary's 
qualification is determined:
(i)
is a current distributee or permissible distributee of trust income or principal; or
(ii)
would be a distributee or permissible distributee of trust income or principal if the 
trust terminated on that date.
(i)
"Resident estate" 
or "resident trust"
means:
(i)
an estate of a decedent who at death was domiciled in this state;
(ii)
a trust, or a portion of a trust, consisting of property transferred by will of a 
decedent who at 
his
the time of the decedent's
 death was domiciled in this state; 
or
(iii)
a trust administered in this state.
(j)
"Resident trust" means a resident estate.
(j)
(k)
"Revocable," as applied to a trust, means revocable by the settlor without the 
consent of the trustee or a person holding an adverse interest.
(k)
(l)
"Settlor" means a person, including a testator, who creates, or contributes 
property to, a trust. If more than one person creates or contributes property to a trust, 
each person is a settlor of the portion of the trust property attributable to that person's 
contribution except to the extent another person has the power to revoke or withdraw 
that portion.
(l)
(m)
"Spendthrift provision" means a term of a trust which restrains both voluntary 
and involuntary transfer or encumbrance of a beneficiary's interest.
(m)
(n)
"Terms of a trust" means:
(i)
except as otherwise provided in Subsection 
(1)(m)(ii)
(1)(n)(ii)
, the manifestation 
of the settlor's intent regarding a trust's provisions as:
(A)
expressed in the trust instrument; or
(B)
established by other evidence that would be admissible in a judicial 
proceeding;
(ii)
the trust's provisions as established, determined, or amended by:
(A)
a trustee or trust director in accordance with the applicable law;
(B)
court order; or
(C)
a nonjudicial settlement agreement under Section 
75-7-110
.
(n)
(o)
"Trust instrument" means an instrument executed by the settlor that contains 
terms of the trust, including any amendments thereto.
(2)
Terms not specifically defined in this section have the meanings provided in Section 
75-1-201
.
Section 11, Section 
75-7-105
 is amended to read:
75-7-105
. Default and mandatory rules.
(1)
Except as otherwise provided in the terms of the trust, this chapter governs the duties 
and powers of a trustee, relations among trustees, and the rights and interests of a 
beneficiary.
(2)
Except as specifically provided in this chapter, the terms of a trust prevail over any 
provision of this chapter except:
(a)
the requirements for creating a trust;
(b)
subject to Sections 
75-12-109
, 
75-12-111
, and 
75-12-112
, the duty of a trustee to act 
in good faith and in accordance with the purposes of the trust;
(c)
the requirement that a trust and the terms of the trust be for the benefit of the trust's 
beneficiaries;
(d)
the power of the court to modify or terminate a trust under Sections 
75-7-410
through 
75-7-416
;
(e)
the effect of a spendthrift provision, 
Section 
75B-1-302
Title 75B, Chapter 1, Part 3, 
Asset Protection Trust
, and the rights of certain creditors and assignees to reach a 
trust as provided in 
Part 5
, Creditor's Claims - Spendthrift and Discretionary Trusts;
(f)
the power of the court under Section 
75-7-702
 to require, dispense with, or modify or 
terminate a bond;
(g)
the effect of an exculpatory term under Section 
75-7-1008
;
(h)
the rights under Sections 
75-7-1010
 through 
75-7-1013
 of a person other than a 
trustee or beneficiary;
(i)
periods of limitation for commencing a judicial proceeding; and
(j)
the jurisdiction and venue requirements for an action involving a trust as described in 
Sections 
75-7-203
 and 
75-7-205
.
Section 12, Section 
75-7-107
 is amended to read:
75-7-107
. Governing law.
(1)
As used in this section:
(a)
"Foreign trust" means a trust that is created in another state or country and valid in 
the state or country in which the trust is created.
(b)
"State law provision" means a provision that the laws of a named state govern the 
validity, construction, and administration of a trust.
(2)
If a trust has a state law provision specifying this state, the validity, construction, and 
administration of the trust are to be governed by the laws of this state if any 
administration of the trust is done in this state.
(3)
For all trusts created on or after December 31, 2003, if a trust does not have a state law 
provision, the validity, construction, and administration of the trust are to be governed 
by the laws of this state if the trust is administered in this state.
(4)
A trust shall be considered to be administered in this state if:
(a)
the trust states that this state is the place of administration, and any administration of 
the trust is done in this state; or
(b)
the place of business where the fiduciary transacts a major portion of its 
administration of the trust is in this state.
(5)
If a foreign trust is administered in this state as provided in this section, the following 
provisions are effective and enforceable under the laws of this state:
(a)
a provision in the trust that restricts the transfer of trust assets in a manner similar to 
Section 
75B-1-302
75B-1-303
;
(b)
a provision that allows the trust to be perpetual; or
(c)
a provision that is not expressly prohibited by the law of this state.
(6)
A foreign trust that moves its administration to this state is valid whether or not the trust 
complied with the laws of this state at the time of the trust's creation or after the trust's 
creation.
(7)
Unless otherwise designated in the trust instrument, a trust is administered in this state if 
it meets the requirements of Subsection 
(4)
.
Section 13, Section 
75-7-301
 is amended to read:
75-7-301
. Basic effect.
(1)
Notice to a person who may represent and bind another person under this part has the 
same effect as if notice were given directly to the other person.
(2)
The consent of a person who may represent and bind another person under this part is 
binding on the person represented unless the person represented objects to the 
representation before the consent would otherwise have become effective.
(3)
Except as otherwise provided in 
Sections 
75-7-411
 and 
75B-1-302
Section 
75-7-411
and 
Title 75B, Chapter 1, Part 3, Asset Protection Trust
, a person who under this part 
may represent a settlor who lacks capacity may receive notice and give a binding 
consent on the settlor's behalf.
Section 14, Section 
75-7-501
 is amended to read:
75-7-501
. Rights of beneficiary's creditor or assignee.
To the extent a beneficiary's interest is not protected by a spendthrift provision or 
Section 
75B-1-302
Title 75B, Chapter 1, Part 3, Asset Protection Trust
, the court may 
authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by 
attachment of present or future distributions to or for the benefit of the beneficiary or other 
means. The court may limit the award to relief as is appropriate under the circumstances.
Section 15, Section 
75-7-505
 is amended to read:
75-7-505
. Creditor's claim against settlor.
Regardless of whether the terms of a trust contain a spendthrift provision, the following 
rules apply:
(1)
During the lifetime of the settlor, the property of a revocable trust is subject to the 
claims of the settlor's creditors. If a revocable trust has more than one settlor, the 
amount the creditor or assignee of a particular settlor may reach may not exceed the 
settlor's interest in the portion of the trust attributable to that settlor's contribution.
(2)
(a)
With respect to an irrevocable trust other than an irrevocable trust that meets the 
requirements of 
Section 
75B-1-302
Title 75B, Chapter 1, Part 3, Asset Protection 
Trust
, a creditor or assignee of the settlor may reach the maximum amount that can 
be distributed to or for the settlor's benefit.
(b)
With respect to an irrevocable trust that has more than one settlor, other than an 
irrevocable trust that meets the requirements of 
Section 
75B-1-302
Title 75B, 
Chapter 1, Part 3, Asset Protection Trust
, the amount a creditor or assignee of a 
particular settlor may reach may not exceed the settlor's interest in the portion of the 
trust attributable to that settlor's contribution.
(c)
Notwithstanding Subsections 
(2)(a)
 and 
(b)
, a creditor of a settlor may not satisfy the 
creditor's claim from an irrevocable trust solely because the trustee may make a 
discretionary distribution reimbursing the settlor for income tax liability of the settlor 
attributable to the income of the irrevocable trust, when the distribution is:
(i)
subject to the discretion of a trustee who is not the settlor;
(ii)
subject to the consent of an advisor who is not the settlor; or
(iii)
at the direction of an advisor who is not the settlor.
(3)
After the death of a settlor, and subject to the settlor's right to direct the source from 
which liabilities will be paid, the property of a trust that was revocable at the settlor's 
death, but not property received by the trust as a result of the death of the settlor which 
is otherwise exempt from the claims of the settlor's creditors, is subject to claims of the 
settlor's creditors, costs of administration of the settlor's estate, the expenses of the 
settlor's funeral and disposal of remains, and statutory allowances to a surviving spouse 
and children to the extent the settlor's probate estate is inadequate to satisfy those claims, 
costs, expenses, and allowances.
Section 16, Section 
75-7-812.5
 is enacted to read:
75-7-812.5
. Discretionary power -- Decanting a trust.
(1)
As used in this section:
(a)
"Current income beneficiary" means the same as that term is defined in Section 
75A-5-102
.
(b)
"Decanting power" means the power of a trustee as described in Subsection 
(2)(a)
:
(i)
to distribute income or principal from a first trust to a second trust; or
(ii)
to modify the terms of a first trust.
(c)
"First trust" means a trust over which a trustee exercises discretion to distribute 
income or principal to, or for the benefit of, a beneficiary.
(d)
"General power to change the trustees" means a beneficiary may, whether alone or in 
concert with other persons:
(i)
name the beneficiary as a trustee; or
(ii)
remove a trustee and replace that trustee with a new trustee who is:
(A)
the beneficiary; or
(B)
a related or subordinate 
party, as defined in Section 672(c) of the Internal 
Revenue Code
, of the beneficiary.
(e)
"Income" means the same as that term is defined in Section 
75A-5-102
.
(f)
"Principal" means the same as that term is defined in Section 
75A-5-102
.
(g)
"Restricted trustee" means a trustee of the first trust if:
(i)
the trustee is also a beneficiary of the first trust; or
(ii)
a beneficiary of the first trust holds a general power to change the trustees of the 
first trust.
(h)
"Second trust" means:
(i)
a trust to which a distribution of income or principal from a first trust is made to 
the trustee of the trust under Subsection 
(2)(a)(i)
; or
(ii)
a trust that is modified under Subsection 
(2)(a)(ii)
.
(2)
(a)
If a trustee has discretion under the terms of a trust instrument to distribute 
income or principal to, or for the benefit of, a beneficiary of a trust, the trustee may:
(i)
distribute part or all of the income or principal to a trust governed by a trust 
instrument that is separate from the trust instrument of the first trust; or
(ii)
modify the terms of the trust instrument of the first trust.
(b)
A trustee may not exercise the decanting power if the terms of the trust instrument 
for the first trust expressly prohibit the trustee from:
(i)
distributing part or all of the income or principal to a trust governed by a trust 
instrument that is separate from the trust instrument of the first trust; or
(ii)
modifying the terms of the trust instrument of the first trust.
(c)
Before a trustee exercises the decanting power to modify the terms of the trust 
instrument of a first trust, the trustee shall notify all beneficiaries of the trust, in 
writing, at least 20 days before the day on which the trustee exercises the decanting 
power.
(3)
Before a trustee exercises the decanting power, the trustee shall determine whether 
distribution or modification is necessary or desirable after taking into account:
(a)
the purposes of the first trust;
(b)
the terms and conditions of the second trust; and
(c)
the consequences of the distribution.
(4)
A trustee may only exercise the decanting power if the second trust has a beneficiary 
that is a beneficiary of the first trust to or for whom:
(a)
a trustee has discretion to distribute income or principal from the first trust; or
(b)
a trustee may distribute income or principal in the future from the first trust at a time, 
or upon the happening of an event, that is specified in the trust instrument of the first 
trust.
(5)
Except as provided in Subsection 
(6)
, a restricted trustee may not exercise the decanting 
power if the distribution would have the effect of:
(a)
benefiting the restricted trustee as a beneficiary of the first trust, unless the 
distribution is limited to an ascertainable standard based on or related to health, 
education, maintenance, or support;
(b)
increasing the distributions that can be made from the second trust to a restricted 
trustee, or to a beneficiary holding a general power to change the trustees of the first 
trust, compared to the distributions that can be made to the restricted trustee, or to the 
beneficiary holding a general power to change the trustees, under the first trust, 
unless the distribution is limited to an ascertainable standard based on or related to 
health, education, maintenance, or support; or
(c)
removing restrictions on a discretionary distribution imposed by the trust instrument 
of the first trust, unless the trust instrument of the second trust limits distributions of 
income or principal from the second trust to:
(i)
an ascertainable standard based on or related to the health, education, 
maintenance, or support of a beneficiary; or
(ii)
a trust described in 42 U.S.C. Sec. 1396p(d)(4).
(6)
Subsection 
(5)
 limits a restricted trustee's exercise of the decanting power only if:
(a)
at least one restricted trustee is a United States citizen or domiciliary under the 
Internal Revenue Code;
(b)
at least one beneficiary holding a general power to change the trustees of the first 
trust is a United States citizen or domiciliary under the Internal Revenue Code; or
(c)
the first trust owns property that would be subject to United States estate or gift taxes 
if owned free of the trust by:
(i)
the restricted trustee of the first trust if there is a restricted trustee of the first trust; 
or
(ii)
the beneficiary holding a general power to change the trustees of the first trust if 
there is a beneficiary holding a general power to change the trustees of the first 
trust.
(7)
If a trust contribution has been treated as a gift qualifying for the exclusion from the gift 
tax described in Section 2503(b) of the Internal Revenue Code, the trust instrument for 
the second trust shall provide that the beneficiary's remainder interest must vest no later 
than the day on which the remainder interest would have vested under the terms of the 
trust instrument for the first trust.
(8)
A trustee's exercise of the decanting power as described in Subsection 
(2)
:
(a)
may not reduce an income interest of a current income beneficiary of:
(i)
a trust for which a marital deduction has been taken for federal tax purposes under 
Section 2056 or 2523 of the Internal Revenue Code or for state tax purposes under 
a comparable state law;
(ii)
a charitable remainder trust under Section 664 of the Internal Revenue Code; or
(iii)
a grantor retained annuity or unitrust trust under Section 2702 of the Internal 
Revenue Code;
(b)
does not apply to property of a trust that is subject to a power of withdrawal held by 
a beneficiary of the trust to whom, or for the benefit of whom, the trustee has 
authority to distribute income or principal, unless after the distribution of income or 
principal under Subsection 
(4)
 the beneficiary's power of withdrawal is unchanged 
with respect to the property of a trust;
(c)
is not prohibited by:
(i)
a spendthrift clause in the first trust; or
(ii)
a clause in the trust instrument of the first trust that prohibits amendment or 
revocation of the trust;
(d)
is an exercise of a power of appointment; and
(e)
may not be exercised in a manner that would cause the decanting power to be a 
general power of appointment as described in Section 2041 or 2514 of the Internal 
Revenue Code.
(9)
(a)
This section does not preclude the trust instrument of a second trust from granting 
a power of appointment to a beneficiary of the second trust that is a beneficiary of the 
first trust.
(b)
A power of appointment described in Subsection 
(9)(a)
 may include the power to 
appoint trust property to the holder of the power of appointment, the holder's 
creditors, the holder's estate, the creditors of the holder's estate, or any other person 
regardless of whether that person is a beneficiary of the second trust.
(10)
This section applies to a trust administered under the laws of this state, including a 
trust whose governing jurisdiction is transferred to this state.
Section 17, Section 
75-7-816
 is amended to read:
75-7-816
. Recitals when title to real property is in trust -- Failure.
(1)
When title to real property is granted to a person as trustee, the terms of the trust may be 
given either:
(a)
in the deed of transfer; or
(b)
in an instrument signed by the grantor and recorded in the same office as the grant to 
the trustee.
(2)
If the terms of the trust are not made public as required in Subsection 
(1)
, a conveyance 
from the trustee is absolute in favor of purchasers for value who take the property 
without notice of the terms of the trust.
(3)
The terms of the trust recited in the deed of transfer or the instrument recorded under 
Subsection 
(1)(b)
 shall include:
(a)
the name of the trustee;
(b)
the address of the trustee; and
(c)
the name and date of the trust.
(4)
Any real property titled in a trust 
which
that
 has a restriction on transfer described in 
Section 
75B-1-302
75B-1-303
 shall include in the title the words "asset protection 
trust."
Section 18, Section 
75A-2-102
 is amended to read:
75A-2-102
. Definitions for chapter.
As used in this chapter:
(1)
(a)
"Agent" means a person granted authority to act for a principal under a power of 
attorney, whether denominated an agent, attorney-in-fact, or otherwise. 
(b)
"Agent" includes an original agent, coagent, successor agent, and person to which an 
agent's authority is delegated.
(2)
"Beneficiary" means the same as that term is defined in Section 
75-1-201
.
(3)
"Beneficiary designation" means the same as that term is defined in Section 
75-1-201
.
(4)
"Child" means the same as that term is defined in Section 
75-1-201
.
(5)
"Claims" means the same as that term is defined in Section 
75-1-201
.
(6)
"Conservator" means the same as that term is defined in Section 
75-1-201
.
(7)
"Descendant" means the same as that term is defined in Section 
75-1-201
.
(8)
"Durable," with respect to a power of attorney, means not terminated by the principal's 
incapacity.
(9)
"Electronic" means relating to technology having electrical, digital, magnetic, wireless, 
optical, electromagnetic, or similar capabilities.
(10)
"Estate" means the same as that term is defined in Section 
75-1-201
.
(11)
"Fiduciary" means the same as that term is defined in Section 
75-1-201
.
(12)
"Good faith" means honesty in fact.
(13)
"Guardian" means the same as that term is defined in Section 
75-1-201
.
(14)
"Incapacity" means the inability of an individual to manage property or business 
affairs because the individual:
(a)
has an impairment in the ability to receive and evaluate information or make or 
communicate decisions even with the use of technological assistance; or
(b)
is:
(i)
missing;
(ii)
detained, including incarcerated in a penal system; or
(iii)
outside the United States and unable to return.
(15)
"Lease" means the same as that term is defined in Section 
75-1-201
.
(16)
"Mortgage" means the same as that term is defined in Section 
75-1-201
.
(17)
"Organization" means the same as that term is defined in Section 
75-1-201
.
(18)
"Person" means an individual, corporation, business trust, estate, trust, partnership, 
limited liability company, association, joint venture, public corporation, government or 
governmental subdivision, agency, or instrumentality, or any other legal or commercial 
entity.
(19)
"Personal representative" means the same as that term is defined in Section 
75-1-201
.
(20)
"Power of attorney" means a writing or other record 
governed by this chapter 
that 
grants authority to an agent to act in the place of the principal
, whether or not
regardless of whether
 the term power of attorney is used.
(21)
(a)
"Presently exercisable general power of appointment," with respect to property 
or a property interest subject to a power of appointment, means power exercisable at 
the time in question to vest absolute ownership in the principal individually, the 
principal's estate, the principal's creditors, or the creditors of the principal's estate. 
(b)
"Presently exercisable general power of appointment" includes a power of 
appointment not exercisable until the occurrence of a specified event, the satisfaction 
of an ascertainable standard, or the passage of a specified period only after the 
occurrence of the specified event, the satisfaction of the ascertainable standard, or the 
passage of the specified period. 
(c)
"Presently exercisable general power of appointment" does not include a power 
exercisable in a fiduciary capacity or only by will.
(22)
"Principal" means an individual who grants authority to an agent in a power of 
attorney.
(23)
"Property" means anything that may be the subject of ownership, whether real or 
personal, or legal or equitable, or any interest or right therein.
(24)
"Record" means information that is inscribed on a tangible medium or that is stored in 
an electronic or other medium and is retrievable in perceivable form.
(25)
"Security" means the same as that term is defined in Section 
75-1-201
.
(26)
"Sign" means, with present intent to authenticate or adopt a record:
(a)
to execute or adopt a tangible symbol; or
(b)
to attach to or logically associate with the record an electronic sound, symbol, or 
process.
(27)
"State" means a state of the United States, the District of Columbia, Puerto Rico, the 
United States Virgin Islands, or any territory or insular possession subject to the 
jurisdiction of the United States.
(28)
(a)
"Stocks and bonds" means stocks, bonds, mutual funds, and all other types of 
securities and financial instruments, whether held directly, indirectly, or in any other 
manner. 
(b)
"Stocks and bonds" does not include commodity futures contracts and call or put 
options on stocks or stock indexes.
(29)
"Trust" means the same as that term is defined in Section 
75-1-201
.
(30)
"Trustee" means the same as that term is defined in Section 
75-1-201
.
(31)
"Will" means the same as that term is defined in Section 
75-1-201
.
Section 19, Section 
75A-2-105
 is amended to read:
75A-2-105
. Execution of power of attorney.
(1)
(a)
A power of attorney shall be signed by the principal or in the principal's 
conscious presence by another individual directed by the principal to sign the 
principal's name on the power of attorney before a notary public or other individual 
authorized by the law to take acknowledgments. 
(1)
(a)
A principal may sign a power of attorney, or direct another individual in the 
principal's conscious presence to sign the principal's name on the power of attorney, 
if:
(i)
the power of attorney is signed before a notary public or other individual 
authorized by the law to take acknowledgments; and
(ii)
the principal has sufficient mental capacity at the time that the power of attorney 
is executed to understand that the principal is appointing an agent to handle the 
principal's financial affairs.
(b)
 A signature on a power of attorney is presumed to be genuine if the principal 
acknowledges the signature before a notary public or other individual authorized by 
law to take acknowledgments.
(c)
A principal's understanding of how an agent will manage the principal's affairs is not 
required for sufficient mental capacity under Subsection 
(1)(a)(ii)
.
(2)
(a)
If the principal resides or is about to reside in a hospital, assisted living, skilled 
nursing, or similar facility, at the time of execution of the power of attorney, the 
principal may not name any agent that is the owner, operator, health care provider, or 
employee of the hospital, assisted living facility, skilled nursing, or similar residential 
care facility unless:
(a)
(i)
the agent is the spouse, legal guardian, or next of kin of the principal; or
(b)
(ii)
the agent's authority is strictly limited to the purpose of assisting the principal 
to establish eligibility for Medicaid.
(3)
(b)
A violation of 
this 
Subsection 
(2)
 is a violation of Section 
76-5-111.4
.
Section 20, Section 
75A-3-101
 is amended to read:
75A-3-101
. Definitions for chapter.
As used in this chapter:
(1)
"Adult" means an individual who is:
(a)
at least 18 years old; or
(b)
an emancipated minor
under 18 years old and is emancipated
.
(2)
"Advance health care directive":
(a)
includes:
(i)
a designation of an agent to make health care decisions for an adult when the adult 
cannot make or communicate health care decisions; or
(ii)
an expression of preferences about health care decisions;
(b)
may take one of the following forms:
(i)
a written document, voluntarily executed by an adult in accordance with the 
requirements of this chapter; or
(ii)
a witnessed oral statement, made in accordance with the requirements of this 
chapter; and
(c)
does not include an order for life sustaining treatment.
(3)
"Agent" means an adult designated in an advance health care directive to make health 
care decisions for the declarant.
(4)
"APRN" means an individual who is:
(a)
certified or licensed as an advance practice registered nurse under Subsection 
58-31b-301
(2)(e)
;
(b)
an independent practitioner; and
(c)
acting within the scope of practice for that individual, as provided by law, rule, and 
specialized certification and training in that individual's area of practice.
(5)
"Best interest" means that the benefits to the individual resulting from a treatment 
outweigh the burdens to the individual resulting from the treatment, taking into account:
(a)
the effect of the treatment on the physical, emotional, and cognitive functions of the 
individual;
(b)
the degree of physical pain or discomfort caused to the individual by the treatment or 
the withholding or withdrawal of treatment;
(c)
the degree to which the individual's medical condition, the treatment, or the 
withholding or withdrawal of treatment, result in a severe and continuing impairment 
of the dignity of the individual by subjecting the individual to humiliation and 
dependency;
(d)
the effect of the treatment on the life expectancy of the individual;
(e)
the prognosis of the individual for recovery with and without the treatment;
(f)
the risks, side effects, and benefits of the treatment, or the withholding or withdrawal 
of treatment; and
(g)
the religious beliefs and basic values of the individual receiving treatment, to the 
extent these may assist the decision maker in determining the best interest.
(6)
"Capacity to appoint an agent" means that the adult understands the consequences of 
appointing a particular individual as agent.
(7)
(6)
"Child" means the same as that term is defined in Section 
75-1-201
.
(8)
(7)
"Declarant" means an adult who has completed and signed or directed the signing 
of an advance health care directive.
(9)
(8)
"Default surrogate" means the adult who may make decisions for an individual 
when either:
(a)
an agent or guardian has not been appointed; or
(b)
an agent is not able, available, or willing to make decisions for an adult.
(10)
(9)
"Emergency medical services provider" means a person that is licensed, 
designated, or certified under 
Title 53, Chapter 2d, Emergency Medical Services Act
.
(11)
(10)
"Estate" means the same as that term is defined in Section 
75-1-201
.
(12)
(11)
"Generally accepted health care standards":
(a)
is defined only for the purpose of:
(i)
this chapter and does not define the standard of care for any other purpose under 
Utah law; and
(ii)
enabling health care providers to interpret the statutory form set forth in Section 
75A-3-303
; and
(b)
means the standard of care that justifies a provider in declining to provide life 
sustaining care because the proposed life sustaining care:
(i)
will not prevent or reduce the deterioration in the health or functional status of an 
individual;
(ii)
will not prevent the impending death of an individual; or
(iii)
will impose more burden on the individual than any expected benefit to the 
individual.
(13)
(12)
"Guardian" means the same as that term is defined in Section 
75-1-201
.
(14)
(13)
"Health care" means any care, treatment, service, or procedure to improve, 
maintain, diagnose, or otherwise affect an individual's physical or mental condition.
(15)
(14)
"Health care decision":
(a)
means a decision about an adult's health care made by, or on behalf of, an adult, that 
is communicated to a health care provider;
(b)
includes:
(i)
selection and discharge of a health care provider and a health care facility;
(ii)
approval or disapproval of diagnostic tests, procedures, programs of medication, 
and orders not to resuscitate; and
(iii)
directions to provide, withhold, or withdraw artificial nutrition and hydration and 
all other forms of health care; and
(c)
does not include decisions about an adult's financial affairs or social interactions 
other than as indirectly affected by the health care decision.
(16)
(15)
"Health care decision making capacity" means an adult's ability to make an 
informed decision about receiving or refusing health care, including:
(a)
the ability to understand the nature, extent, or probable consequences of health status 
and health care alternatives;
(b)
the ability to make a rational evaluation of the burdens, risks, benefits, and 
alternatives of accepting or rejecting health care; and
(c)
the ability to communicate a decision.
(17)
(16)
"Health care facility" means:
(a)
a health care facility as defined in 
Title 26B, Chapter 2, Part 2
, Health Care Facility 
Licensing and Inspection; and
(b)
private offices of physicians, dentists, and other health care providers licensed to 
provide health care under 
Title 58, Occupations and Professions
.
(18)
(17)
"Health care provider" means the same as that term is defined in Section 
78B-3-403
, except that "health care provider" does not include an emergency medical 
services provider.
(19)
(18)
"Incapacitated" means the same as that term is defined in Section 
75-1-201
.
(20)
(19)
"Incapacity" means the same as that term is defined in Section 
75-1-201
.
(21)
(20)
(a)
"Life sustaining care" means any medical intervention, including 
procedures, administration of medication, or use of a medical device, that maintains 
life by sustaining, restoring, or supplanting a vital function.
(b)
"Life sustaining care" does not include care provided for the purpose of keeping an 
individual comfortable.
(22)
(21)
"Minor" means an individual who:
(a)
is under 18 years old; and
(b)
is not 
an emancipated minor
emancipated
.
(23)
(22)
"Order for life sustaining treatment" means an order related to life sustaining 
treatment, on a form designated by the Department of Health and Human Services under 
Section 
75-3-106
, that gives direction to health care providers, health care facilities, and 
emergency medical services providers regarding the specific health care decisions of the 
individual to whom the order relates.
(24)
(23)
"Parent" means the same as that term is defined in Section 
75-1-201
.
(25)
(24)
"Personal representative" means the same as that term is defined in Section 
75-1-201
.
(26)
(25)
"Physician" means a physician and surgeon or osteopathic surgeon licensed 
under 
Title 58, Chapter 67, Utah Medical Practice Act or Chapter 68
, Utah Osteopathic 
Medical Practice Act.
(27)
(26)
"Physician assistant" means an individual licensed as a physician assistant under 
Title 58, Chapter 70a, Utah Physician Assistant Act
.
(28)
(27)
"Reasonably available" means:
(a)
readily able to be contacted without undue effort; and
(b)
willing and able to act in a timely manner considering the urgency of the 
circumstances.
(28)
"Sign" means the same as that term is defined in Section 
75-1-201
.
(29)
"State" means the same as that term is defined in Section 
75-1-201
.
(30)
"Substituted judgment" means the standard to be applied by a surrogate when making a 
health care decision for an adult who previously had the capacity to make health care 
decisions, which requires the surrogate to consider:
(a)
specific preferences expressed by the adult:
(i)
when the adult had the capacity to make health care decisions; and
(ii)
at the time the decision is being made;
(b)
the surrogate's understanding of the adult's health care preferences;
(c)
the surrogate's understanding of what the adult would have wanted under the 
circumstances; and
(d)
to the extent that the preferences described in Subsections 
(30)(a)
 through 
(c)
 are 
unknown, the best interest of the adult.
(31)
"Surrogate" means a health care decision maker who is:
(a)
an appointed agent;
(b)
a default surrogate under the provisions of Section 
75A-3-203
; or
(c)
a guardian.
(32)
"Trust" means the same as that term is defined in Section 
75-1-201
.
(33)
"Will" means the same as that term is defined in Section 
75-1-201
.
Section 21, Section 
75A-3-302
 is amended to read:
75A-3-302
. Capacity to complete an advance health care directive.
(1)
An adult is presumed to have the capacity to complete an advance health care directive.
(2)
An adult who is found to lack health care decision making capacity under the provisions 
of Section 
75A-3-201
:
(a)
lacks the capacity to give an advance health care directive, including Part II of the 
form created in Section 
75A-3-303
, or any other substantially similar form 
expressing a health care preference; and
(b)
may 
retain the capacity to 
appoint an agent and complete Part I of the form created 
in Section 
75A-3-303
.
 if the adult understands that the adult is appointing an agent 
to handle the adult's health care decisions at the time that the adult appoints the agent.
(3)
The following factors shall be considered by a health care provider, attorney, or court 
when determining whether an adult described in Subsection (2)(b) has retained the 
capacity to appoint an agent
A health care provider, an attorney, or a court when 
determining whether the adult understands that the adult is appointing an agent to handle 
the adult's health care decisions shall consider
:
(a)
whether the adult has expressed over time an intent to appoint the same person as 
agent;
(b)
whether the choice of agent is consistent with past relationships and patterns of 
behavior between the adult and the prospective agent, or, if inconsistent, whether 
there is a reasonable justification for the change; and
(c)
whether the adult's expression of the intent to appoint the agent occurs at times when, 
or in settings where, the adult has the greatest ability to make and communicate 
decisions.
(4)
An adult's understanding of how the agent will manage the adult's health care decisions 
is not required for the adult to appoint an agent under Subsection 
(2)
(b)
.
Section 22, Section 
75A-5-203
 is amended to read:
75A-5-203
. Fiduciary's power to adjust.
(1)
Except as otherwise provided in the terms of a trust or this section, a fiduciary, in a 
record, without court approval, may adjust between income and principal if the fiduciary 
determines the exercise of the power to adjust will assist the fiduciary to administer the 
trust or estate impartially.
(2)
This section does not create a duty to exercise or consider the power to adjust under 
Subsection 
(1)
 or to inform a beneficiary about the applicability of this section.
(3)
A fiduciary that in good faith exercises or fails to exercise the power to adjust under 
Subsection 
(1)
 is not liable to a person affected by the exercise or failure to exercise.
(4)
In deciding whether and to what extent to exercise the power to adjust under Subsection 
(1)
, a fiduciary shall consider all factors the fiduciary considers relevant, including the 
relevant factors in Subsection 
75A-5-201
(5)
 and the application of Subsection 
75A-5-401
(9)
, Section 
75A-5-408
, and Section 
75A-5-413
.
(5)
A fiduciary may not exercise the power to make an adjustment under Subsection 
(1)
 or 
the power to make a determination that an allocation is insubstantial under Section 
75A-5-408
 if:
(a)
the adjustment or determination would reduce the amount payable to a current 
income beneficiary from a trust that qualifies for a special tax benefit, except to the 
extent the adjustment is made to provide for a reasonable apportionment of the total 
return of the trust between the current income beneficiary and successor beneficiaries;
(b)
the adjustment or determination would change the amount payable to a beneficiary, 
as a fixed annuity or a fixed fraction of the value of the trust assets, under the terms 
of the trust;
(c)
the adjustment or determination would reduce an amount that is permanently set 
aside for a charitable purpose under the terms of the trust, unless both income and 
principal are set aside for the charitable purpose;
(d)
possessing or exercising the power would cause a person to be treated as the owner 
of all or part of the trust for federal income tax purposes;
(e)
possessing or exercising the power would cause all or part of the value of the trust 
assets to be included in the gross estate of an individual for federal estate tax 
purposes;
(f)
possessing or exercising the power would cause an individual to be treated as making 
a gift for federal gift tax purposes;
(g)
the fiduciary is not an independent person;
(h)
the trust is irrevocable and provides for income to be paid to the settlor and 
possessing or exercising the power would cause the adjusted principal or income to 
be considered an available resource or available income under a public-benefit 
program; or
(i)
the trust is a unitrust under 
Part 3
, Unitrust.
(6)
If Subsection 
(5)(d)
, (e), (f), or (g) applies to a fiduciary:
(a)
a co-fiduciary to which Subsections 
(5)(d)
 through 
(g)
 do not apply may exercise the 
power to adjust, unless the exercise of the power to adjust by the remaining 
co-fiduciary or co-fiduciaries is not permitted by the terms of the trust or law other 
than this chapter; or
(b)
(i)
if there is no co-fiduciary to which Subsections (5)(d) through (g) do not apply:
(A)
except as otherwise provided in Subsection 
(6)(b)(ii)(A)
, the fiduciary may 
appoint a co-fiduciary to which Subsections (5)(d) through (g) do not apply;
(B)
except as otherwise provided in Subsection 
(6)(b)(ii)(B)
, the appointed 
co-fiduciary may exercise the power to adjust under Subsection (1); and
(C)
the appointed co-fiduciary may be a special fiduciary with limited powers.
(ii)
(A)
If the appointment of a co-fiduciary is not permitted by the terms of the 
trust or by a provision of law outside this chapter, a fiduciary may not appoint 
a co-fiduciary.
(B)
If the exercise of the power to adjust by a co-fiduciary is not permitted by the 
terms of the trust or by a provision of law outside this 
chapter, the co-fiduciary 
may not exercise the power to adjust under Subsection (1)
.
(7)
A fiduciary may release or delegate to a co-fiduciary the power to adjust under 
Subsection (1) if the fiduciary determines that the fiduciary's possession or exercise of 
the power to adjust will or may:
(a)
cause a result described in Subsections 
(5)(a)
 through 
(f)
 or (h); or
(b)
deprive the trust of a tax benefit or impose a tax burden not described in Subsections 
(5)(a)
 through 
(f)
.
(8)
A fiduciary's release or delegation to a co-fiduciary under Subsection (7) of the power to 
adjust under Subsection (1):
(a)
must be in a record;
(b)
applies to the entire power to adjust, unless the release or delegation provides a 
limitation, which may be a limitation to the power to adjust:
(i)
from income to principal;
(ii)
from principal to income;
(iii)
for specified property; or
(iv)
in specified circumstances;
(c)
for a delegation, may be modified by a redelegation under this subsection by the 
co-fiduciary to which the delegation is made; and
(d)
subject to Subsection 
(8)(c)
, is permanent, unless the release or delegation provides a 
specified period, including a period measured by the life of an individual or the lives 
of more than one individual.
(9)
Terms of a trust that deny or limit the power to adjust between income and principal do 
not affect the application of this section, unless the terms of the trust expressly deny or 
limit the power to adjust under Subsection 
(1)
.
(10)
The exercise of the power to adjust under Subsection 
(1)
 in any accounting period may 
apply to the current accounting period, the immediately preceding accounting period, 
and one or more subsequent accounting periods.
(11)
A description of the exercise of the power to adjust under Subsection 
(1)
 shall be:
(a)
included in a report, if any, sent to beneficiaries under Subsection 
75-7-811
(3)
; or
(b)
communicated at least annually to the qualified beneficiaries determined under 
Subsection 
75-7-103
(1)(h)
75-7-103(1)(i)
.
Section 23, Section 
75A-5-303
 is amended to read:
75A-5-303
. Authority of fiduciary.
(1)
A fiduciary, without court approval, by complying with Subsections 
(2)
 and 
(6)
, may:
(a)
convert an income trust to a unitrust if the fiduciary adopts, in a record, a unitrust 
policy for the trust providing:
(i)
that, in administering the trust, the net income of the trust will be a unitrust 
amount rather than net income determined without regard to this part; and
(ii)
the percentage and method used to calculate the unitrust amount;
(b)
change the percentage or method used to calculate a unitrust amount for a unitrust if 
the fiduciary adopts in a record a unitrust policy or an amendment or replacement of 
a unitrust policy providing changes in the percentage or method used to calculate the 
unitrust amount; or
(c)
convert a unitrust to an income trust if the fiduciary adopts, in a record, a 
determination that, in administering the trust, the net income of the trust will be net 
income determined without regard to this part rather than a unitrust amount.
(2)
A fiduciary may take an action under Subsection 
(1)
 if:
(a)
the fiduciary determines that the action will assist the fiduciary to administer a trust 
impartially;
(b)
the fiduciary sends a notice in a record, in the manner required by Section 
75A-5-304
, 
describing and proposing to take the action;
(c)
the fiduciary sends a copy of the notice under Subsection 
(2)(b)
 to each settlor of the 
trust which is:
(i)
if an individual, living; or
(ii)
if not an individual, in existence;
(d)
at least one member of each class of the qualified beneficiaries determined under 
Subsection 
75-7-103
(1)(h)
75-7-103(1)(i)
 receiving the notice under Subsection 
(2)(b)
 is:
(i)
if an individual, legally competent;
(ii)
if not an individual, in existence; or
(iii)
represented in the manner provided in Subsection 
75A-5-304
(2)
; and
(e)
the fiduciary does not receive, by the date specified in the notice under Subsection 
75A-5-304
(4)(e)
, an objection in a record to the action proposed under Subsection 
(2)(b)
 from a person to which the notice under Subsection 
(2)(b)
 is sent.
(3)
(a)
If a fiduciary receives, not later than the date stated in the notice under Subsection 
75A-5-304
(4)(e)
, an objection in a record described in Subsection 
75A-5-304
(4)(d)
 to 
a proposed action, the fiduciary or a beneficiary may request that the court:
(i)
require the fiduciary to take the proposed action;
(ii)
require the fiduciary to take the proposed action with modifications; or
(iii)
prevent the proposed action.
(b)
A person described in Subsection 
75A-5-304
(1)
 may oppose the proposed action in 
the proceeding under Subsection 
(3)(a)
, regardless of whether the person:
(i)
consented under Subsection 
75A-5-304
(3)
; or
(ii)
objected under Subsection 
75A-5-304
(4)(d)
.
(4)
If, after sending a notice under Subsection 
(2)(b)
, a fiduciary decides not to take the 
action proposed in the notice, the fiduciary shall notify each person described in 
Subsection 
75A-5-304
(1)
 in a record of the decision not to take the action and the 
reasons for the decision.
(5)
If a beneficiary requests in a record that a fiduciary take an action described in 
Subsection 
(1)
 and the fiduciary declines to act or does not act within 90 days after 
receiving the request, the beneficiary may request the court to direct the fiduciary to take 
the action requested.
(6)
In deciding whether and how to take an action authorized by Subsection 
(1)
, or whether 
and how to respond to a request by a beneficiary under Subsection 
(5)
, a fiduciary shall 
consider all factors relevant to the trust and the beneficiaries, including the relevant 
factors in Subsection 
75A-5-201
(5)
.
(7)
For a reason described in Subsection 
75A-5-203
(7)
, and in the manner described in 
Subsection 
75A-5-203
(8)
, a fiduciary may:
(a)
release or delegate the power to convert an income trust to a unitrust under 
Subsection 
(1)(a)
;
(b)
change the percentage or method used to calculate a unitrust amount under 
Subsection 
(1)(b)
; or
(c)
convert a unitrust to an income trust under Subsection 
(1)(c)
.
Section 24, Section 
75A-5-304
 is amended to read:
75A-5-304
. Notice.
(1)
A fiduciary shall send a notice required by Subsection 
75A-5-303
(2)(b)
 in a manner 
authorized under Section 
75-7-109
 to:
(a)
the qualified beneficiaries determined under Subsection 
75-7-103
(1)(h)
75-7-103(1)(i)
;
(b)
each person acting, in accordance with 
Title 75, Chapter 12, Uniform Directed Trust 
Act
, as trust director of the trust; and
(c)
each person that is granted a power by the terms of the trust to appoint or remove a 
trustee or person described in Subsection 
(1)(b)
, to the extent the power is exercisable 
when the person that exercises the power is not then serving as trustee or is a person 
described in Subsection 
(1)(b)
.
(2)
The representation provisions of Sections 
75-7-301
 through 
75-7-305
 apply to notice 
under this section.
(3)
(a)
A person may consent in a record at any time to action proposed under Subsection 
75A-5-303
(2)(b)
.
(b)
If a person required to receive a notice under Subsection 
(1)
 consents under 
Subsection 
(3)(a)
 to not receive the notice, the fiduciary is not required to send the 
person the notice.
(4)
A notice required by Subsection 
75A-5-303
(2)(b)
 shall include:
(a)
the action proposed under Subsection 
75A-5-303
(2)(b)
;
(b)
for a conversion of an income trust to a unitrust, a copy of the unitrust policy adopted 
under Subsection 
75A-5-303
(1)(a)
;
(c)
for a change in the percentage or method used to calculate the unitrust amount, a 
copy of the unitrust policy or amendment or replacement of the unitrust policy 
adopted under Subsection 
75A-5-303
(1)(b)
;
(d)
a statement that the person to which the notice is sent may object to the proposed 
action by stating in a record the basis for the objection and sending or delivering the 
record to the fiduciary;
(e)
the date by which the fiduciary shall receive an objection under Subsection 
(4)(d)
, 
which shall be at least 30 days after the date the notice is sent;
(f)
the date on which the action is proposed to be taken and the date on which the action 
is proposed to take effect;
(g)
the name and contact information of the fiduciary; and
(h)
the name and contact information of a person that may be contacted for additional 
information.
Section 25, Section 
75A-8-102
 is amended to read:
8. UNIFORM TRANSFERS TO MINORS ACT
75A-8-102
. Definitions for chapter.
As used in this chapter:
(1)
"Adult" means an individual who is 21 years old or older.
(2)
"Beneficiary" means the same as that term is defined in Section 
75-1-201
.
(3)
"Benefit plan" means an employer's plan for the benefit of an employee or partner.
(4)
"Broker" means a person lawfully engaged in the business of effecting transactions in 
securities or commodities for the person's own account or for the accounts of others.
(5)
"Conservator" means a person appointed or qualified by a court to act as general, 
limited, or temporary guardian of a minor's property or a person legally authorized to 
perform substantially the same functions.
(6)
"Court" means a court with jurisdiction under 
Title 78A, Judiciary and Judicial 
Administration
.
(7)
"Custodial property" means:
(a)
any interest in property transferred to a custodian under this chapter; and
(b)
the income from and proceeds of that interest in property.
(8)
"Custodian" means a person so designated under Section 
75A-8-110
 or a successor or 
substitute custodian designated under Section 
75A-8-119
.
(9)
"Estate" means the same as that term is defined in Section 
75-1-201
.
(10)
"Fiduciary" means the same as that term is defined in Section 
75-1-201
.
(11)
"Financial institution" means a bank, trust company, savings institution, or credit 
union, chartered and supervised under state or federal law.
(12)
"Guardian" means the same as that term is defined in Section 
75-1-201
.
(13)
"Incapacitated" means the same as that term is defined in Section 
75-1-201
.
(13)
"Incapacitated" means the inability of the individual to manage the property or 
business affairs of the minor because the individual:
(a)
lacks the ability to receive or evaluate information, make decisions, or communicate 
decisions even with the use of technological assistance;
(b)
is missing;
(c)
is detained or incarcerated; or
(d)
is outside the United States and is unable to return.
(14)
"Incapacity" means the 
same as that term is defined in Section 
75-1-201
state of being 
incapacitated
.
(15)
"Interested person" means the same as that term is defined in Section 
75-1-201
.
(16)
"Legal representative" means an individual's personal representative or conservator.
(17)
"Member of the minor's family" means the minor's parent, stepparent, spouse, 
grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by 
adoption.
(18)
"Minor" means an individual who is under 21 years old.
(19)
"Parent" means the same as that term is defined in Section 
75-1-201
.
(20)
"Payor" means the same as that term is defined in Section 
75-1-201
.
(21)
"Person" means an individual, corporation, organization as defined in Section 
75-1-201
, 
or other legal entity.
(22)
"Personal representative" means an executor, administrator, successor personal 
representative as defined in Section 
75-1-201
, or special administrator as defined in 
Section 
75-1-201
, of a decedent's estate or a person legally authorized to perform 
substantially the same functions.
(23)
"Petition" means the same as that term is defined in Section 
75-1-201
.
(24)
"Property" means the same as that term is defined in Section 
75-1-201
.
(25)
"Record" means the same as that term is defined in Section 
75-1-201
.
(26)
"Security" means the same as that term is defined in Section 
75-1-201
.
(27)
"State" includes any state of the United States, the district of Columbia, the 
Commonwealth of Puerto Rico, and any territory or possession subject to the legislative 
authority of the United States.
(28)
"Testator" means the same as that term is defined in Section 
75-1-201
.
(29)
"Transfer" means a transaction that creates custodial property under Section 
75A-8-109
.
(30)
"Transferor" means a person who makes a transfer under this chapter.
(31)
"Trust" means the same as that term is defined in Section 
75-1-201
.
(32)
"Trust company" means a financial institution, corporation, or other legal entity, 
authorized to exercise general trust powers.
(33)
"Trustee" means the same as that term is defined in Section 
75-1-201
.
(34)
"Will" means the same as that term is defined in Section 
75-1-201
.
Section 26, Section 
75B-1-101
 is amended to read:
75B-1-101
. Definitions for title.
Reserved.
As used in this title:
(1)
"Income" means the same as that term is defined in Section 
75A-5-102
.
(2)
"Nongeneral power of appointment" means the same as that term is defined in Section 
75A-4-102
.
(3)
"Principal" means the same as that term is defined in Section 
75A-5-102
.
(4)
"Property" means the same as that term is defined in Section 
75-1-201
.
(5)
"Settlor" means the same as that term is defined in Section 
75-7-102
.
(6)
"Sign" means the same as that term is defined in Section 
75-1-201
.
(7)
"Trust company" means the same as that term is defined in Section 
7-5-1
.
(8)
"Trustee" means the same as that term is defined in Section 
75-1-201
.
Section 27, Section 
75B-1-301
 is amended to read:
3. Asset Protection Trust
75B-1-301
. Definitions for part.
As used in this part:
(1)
"Asset protection trust" means a trust:
(a)
that is irrevocable;
(b)
of which the settlor:
(i)
is a beneficiary; or
(ii)
may be made a beneficiary by the act or action of a person other than the settlor; 
and
(c)
meets the requirements of this part.
(1)
(2)
"Creditor" means:
(a)
a creditor or other claimant of the settlor existing when the
 asset protection
 trust is 
created; or
(b)
a person who subsequently becomes a creditor
 of the settlor
, including whether or 
not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, 
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured:
(i)
holding or seeking to enforce a judgment entered by a court or other body having 
adjudicative authority; or
(ii)
with a right to payment.
(2)
(3)
"Domestic support obligation" means:
(a)
a child support judgment or order;
(b)
a spousal support judgment or order; or
(c)
an unsatisfied claim arising from a property division in a divorce proceeding.
(3)
(4)
"Insolvent" means:
(a)
having generally ceased to pay debts in the ordinary course of business other than as 
a result of a bona fide dispute;
(b)
being unable to pay debts as they become due; or
(c)
being insolvent within the meaning of federal bankruptcy law.
(4)
(5)
"Paid and delivered" does not include the settlor's use or occupancy
, as a 
beneficiary,
 of real property or personal property owned by the
 asset protection
 trust if 
the use or occupancy is in accordance with the trustee's discretionary authority under the 
trust instrument.
(5)
(6)
"Personal property" includes intangible and tangible personal property.
(6)
"Property" means real property, personal property, and interests in real or personal 
property.
(7)
"Settlor" means a person who transfers property in trust.
(8)
(7)
"Transfer" means any form of transfer of property, including gratuitous transfers, 
whether by deed, conveyance, or assignment.
(9)
"Trust" means the same as that term is defined in Section 
75-1-201
.
Section 28, Section 
75B-1-302
 is amended to read:
75B-1-302
. Asset protection trust -- Governing law.
(1)
If the settlor of an irrevocable trust is also a beneficiary of the trust, and if the 
requirements of Subsection (3) are satisfied, a
A
 creditor of 
the
a
 settlor
 of an asset 
protection trust
 may not:
(a)
satisfy a claim or liability of the settlor in either law or equity out of the settlor's 
transfer to the
 asset protection
 trust or the settlor's beneficial interest in the
 asset 
protection
 trust;
(b)
force or require the trustee to make a distribution to the settlor, as beneficiary; or
(c)
require the trustee to pay any distribution directly to the creditor, or otherwise attach 
the distribution before 
it
the distribution
 has been paid or delivered by the trustee to 
the settlor, as beneficiary.
(2)
Notwithstanding Subsection 
(1)
, 
nothing in this section
this part does not
:
(a)
prohibits
prohibit
 a creditor from satisfying a claim or liability from the distribution 
once 
it
the distribution
 has been paid or delivered by the trustee to the settlor, as 
beneficiary; or
(b)
nullifies or impairs
nullify or impair
 a security interest that was granted by a settlor 
or a trustee with respect to property that is transferred to the
 asset protection
 trust.
(3)
A trust is subject to this part if:
(a)
the trust is governed by the laws of this state as described in Section 
75-7-107
; and
(b)
the trust meets the requirements of this part.
(4)
Notwithstanding Subsection 
25-6-402(2)
, a court of this state has exclusive jurisdiction 
over an action or claim for relief that is based on a transfer of property to an asset 
protection trust.
(3)
(a)
In order for Subsection (1) to apply, the conditions in this Subsection (3) shall be 
satisfied. 
(b)
 Where this Subsection (3) requires that a provision be included in the trust 
instrument, no particular language need be used in the trust instrument if the meaning 
of the trust provision otherwise complies with this Subsection (3).
(c)
An agreement or understanding, express or implied, between the settlor and the 
trustee that attempts to grant or permit the retention by the settlor of greater rights or 
authority than is stated in the trust instrument is void.
(d)
The trust instrument shall provide that the trust is governed by Utah law and is 
established pursuant to this section.
(e)
The trust instrument shall require that at all times at least one trustee shall be a Utah 
resident or Utah trust company, as the term "trust company" is defined in Section 
7-5-1
.
(f)
(i)
The trust instrument shall provide that neither the interest of the settlor, as 
beneficiary, nor the income or principal of the trust may be voluntarily or 
involuntarily transferred by the settlor, as beneficiary. 
(ii)
 The provision shall be considered to be a restriction on the transfer of the 
settlor's beneficial interest in the trust that is enforceable under applicable 
nonbankruptcy law within the meaning of 11 U.S.C. Sec. 541(c)(2).
(g)
The settlor may not have the ability under the trust instrument, without the consent 
of a person who has a substantial beneficial interest in the trust, which interest would 
be adversely affected by the exercise of the power held by the settlor:
(i)
to revoke, amend, or terminate all or any part of the trust; or
(ii)
to withdraw any property from the trust, except that the settlor, without the 
approval or consent of any person, may be given the power, under the trust 
agreement, to substitute assets of substantially equivalent value.
(h)
The trust instrument may not provide for any mandatory distributions of either 
income or principal to the settlor, as beneficiary, except as provided in Subsection 
(5)(g).
(i)
(i)
The trust instrument shall require that, at least 30 days before paying and 
delivering any distribution to the settlor, as beneficiary, the trustee notify in 
writing every person who has a domestic support obligation against the settlor.
(ii)
The trust instrument shall require that the notice state the date the distribution 
will be paid and delivered and the amount of the distribution.
(j)
At the time that the settlor transfers any assets to the trust, the settlor may not be in 
default of making a payment due under a domestic support obligation.
(k)
A transfer of assets to the trust may not render the settlor insolvent.
(l)
At the time the settlor transfers any assets to the trust, the settlor may not intend to 
hinder, delay, or defraud a known creditor by transferring the assets to the trust. A 
settlor's expressed intention to protect trust assets from the settlor's potential future 
creditors is not evidence of an intent to hinder, delay, or defraud a known creditor.
(m)
Assets transferred to the trust may not be derived from unlawful activities.
(nn)
With respect to each transfer of assets to the trust, the settlor shall sign a sworn 
affidavit stating that at the time of the transfer of the assets to the trust:
(i)
the settlor has full right, title, and authority to transfer the assets to the trust;
(ii)
the transfer of the assets to the trust will not render the settlor insolvent;
(iii)
the settlor does not intend to hinder, delay, or defraud a known creditor by 
transferring the assets to the trust;
(iv)
there is no pending or threatened court action against the settlor, except for a 
court action identified by the settlor on an attachment to the affidavit;
(v)
the settlor is not involved in an administrative proceeding that is reasonably 
expected to have a material adverse effect on the financial condition of the settlor, 
except an administrative proceeding identified on an attachment to the affidavit;
(vi)
at the time of the transfer of the assets to the trust, the settlor is not in default of 
a domestic support obligation;
(vii)
the settlor does not contemplate filing for relief under the provisions of United 
States Code, Title 11, Bankruptcy; and
(viii)
the assets being transferred to the trust were not derived from unlawful 
activities.
(4)
Failure to satisfy the requirements of Subsection (3) shall result in the consequences 
described in this Subsection (4).
(a)
If any requirement of Subsections (3)(b) through (g) is not satisfied, none of the 
property held in the trust will at any time have the benefit of the protections described 
in Subsection (1).
(b)
If the trustee does not send the notice required under Subsection (3)(g), the court 
may authorize any person with a domestic support obligation against the settlor to 
whom notice was not sent to attach the distribution or future distributions, but the 
person may not:
(i)
satisfy a claim or liability in either law or equity out of the settlor's transfer to the 
trust or the settlor's beneficial interest in the trust; or
(ii)
force or require the trustee to make a distribution to the settlor, as beneficiary.
(c)
If any requirement described in Subsections (3)(i) through (l) is not satisfied, the 
property transferred to the trust that does not satisfy the requirement may not have 
the benefit of the protections described in Subsection (1).
(d)
If the requirement described in Subsection (3)(h) is not satisfied, the property 
transferred to the trust that does not satisfy the requirement does not have the benefit 
of the protections described in Subsection (1) with respect to any person with a 
domestic support obligation.
(e)
A creditor of the settlor has the burden of proving that the requirement in Subsection 
(3)(i) or (j) is not satisfied by clear and convincing evidence.
(5)
The provisions of Subsection (1) may apply to a trust even if:
(a)
the settlor serves as a cotrustee or as an advisor to the trustee, except that the settlor 
may not determine whether a discretionary distribution will be made;
(b)
the settlor participates in a determination regarding whether a discretionary 
distribution is made to the settlor by:
(i)
requesting a distribution from the trust;
(ii)
consulting with the trustees regarding whether a discretionary distribution will be 
made;
(iii)
exercising a right to consent to or veto the distribution under a power described 
in Subsection (5)(e);
(iv)
signing documentation in the settlor's capacity as a cotrustee that implements a 
distribution when the other trustees use discretionary power to independently 
authorize a distribution; or
(v)
participating in an action authorizing a distribution if the other trustees can 
authorize the distribution without the settlor's participation.
(c)
the settlor has the authority under the terms of the trust instrument to appoint a 
nonsubordinate advisor or a trust protector who can remove and appoint trustees and 
who can direct, consent to, or disapprove distributions;
(d)
the settlor has the power under the terms of the trust instrument to serve as an 
investment director or to appoint an investment director under Section 
75-7-906
;
(e)
the trust instrument gives the settlor the power to consent to or veto a distribution 
from the trust;
(f)
the trust instrument gives the settlor an inter vivos or a testamentary nongeneral 
power of appointment or similar power;
(g)
the trust instrument gives the settlor the right to receive the following types of 
distributions:
(i)
income, principal, or both in the discretion of a person, including a trustee, other 
than the settlor;
(ii)
principal, subject to an ascertainable standard set forth in the trust;
(iii)
income or principal from a charitable remainder annuity trust or charitable 
remainder unitrust, as defined in 26 U.S.C. Sec. 664;
(iv)
a percentage of the value of the trust each year as determined under the trust 
instrument, but not exceeding the amount that may be defined as income under 26 
U.S.C. Sec. 643(b);
(v)
the transferor's potential or actual use of real property held under a qualified 
personal residence trust, or potential or actual possession of a qualified annuity 
interest, within the meaning of 26 U.S.C. Sec. 2702 and the accompanying 
regulations;
(vi)
income or principal from a grantor retained annuity trust or grantor retained 
unitrust that is allowed under 26 U.S.C. Sec. 2702; and
(vii)
income from a trust intended to qualify for the federal estate tax or gift tax 
marital deduction under 26 U.S.C. Sec. 2056(b)(7) or 2523(f);
(h)
the trust instrument authorizes the settlor to use real or personal property owned by 
the trust; or
(i)
with respect to the property held in the trust, the settlor may:
(i)
give a personal guarantee on a debt or obligation secured by the property;
(ii)
make payments, directly or indirectly, on a debt or obligation secured by the 
property;
(iii)
pay property taxes, casualty and liability insurance premiums, homeowner 
association dues, maintenance expenses, or other similar expenses on the property; 
or
(iv)
pay income tax on income attributable to the portion of property held in the 
trust, of which the settlor is considered to be the owner under 26 U.S.C. Secs. 671 
through 678, which payments will not be considered additional transfers to the 
trust for purposes of this section.
(6)
(a)
If a trust instrument contains the provisions described in Subsections (3)(b) 
through (g), the transfer restrictions prevent a creditor or other person from asserting 
any cause of action or claim for relief against a trustee of the trust or against others 
involved in the counseling, drafting, preparation, execution, or funding of the trust 
for conspiracy to commit fraudulent conveyance or another voidable transfer, aiding 
and abetting a fraudulent conveyance or another voidable transfer, participation in the 
trust transaction, or similar cause of action or claim for relief. 
(b)
 For purposes of this Subsection (6), counseling, drafting, preparation, execution, or 
funding of the trust includes the preparation and funding of a limited partnership, a 
limited liability company, or other entity if interests in the entity are subsequently 
transferred to the trust. 
(c)
 The creditor and other person prevented from asserting a cause of action or claim 
for relief may assert a cause of action against, and are limited to recourse against, 
only:
(i)
the trust and the trust assets; and
(ii)
the settlor, to the extent otherwise allowed in this section.
(7)
(a)
A cause of action or claim for relief under Subsection (3)(i) or (j) is a cause of 
action or claim for relief under Section 
25-6-202
 or 
25-6-203
.
(b)
Except as provided in Subsection (7)(a), a cause of action or claim for relief under 
this section is not a cause of action or claim for relief under Sections 
25-6-101
through 
25-6-407
.
(c)
Notwithstanding Section 
25-6-305
, a cause of action or claim for relief regarding a 
fraudulent conveyance or other voidable transfer of a settlor's assets under this 
section is extinguished unless the action is brought by a creditor of the settlor who 
was a creditor of the settlor before the assets in question were transferred to the trust 
and the action is brought within the earlier of:
(i)
the later of two years after the transfer is made, or one year after the transfer is or 
reasonably could have been discovered by the creditor if the creditor:
(A)
can demonstrate, by clear and convincing evidence, that the creditor asserted 
a specific claim against the settlor before the transfer; or
(B)
files another action, other than an action alleging a fraudulent conveyance or 
other voidable transfer against the settlor that asserts a claim based on an act or 
omission of the settlor that occurred before the transfer, and the action 
described in Subsection (7)(c) is filed within two years after the transfer; or
(ii)
(A)
with respect to a creditor known to the settlor, 120 days after the date on 
which notice of the transfer is mailed to the creditor, which notice shall state 
the name and address of the settlor or the settlor's representative, the name and 
address of the trustee or the trustee's representative, and also describe the assets 
that were transferred, but does not need to state the value of those assets if the 
assets are other than cash, and which shall inform the creditor that the creditor 
is required to bring the creditor's cause of action or claim for relief against the 
settlor and the trustee within 120 days from the mailing of the notice or be 
forever barred; or
(B)
with respect to a creditor not known to the settlor, 120 days after the date on 
which notice of the transfer is first published in a newspaper of general 
circulation in the county in which the settlor then resides, or is published on a 
public legal notice website as defined in Section 
45-1-101
, which notice shall 
state the name of the settlor or the settlor's representative, the address of the 
settlor or the settlor's representative, the name of the trustee or the trustee's 
representative, the address of the trustee or the trustee's representative, and also 
describe the assets that were transferred, but does not need to state the value of 
those assets.
(8)
(a)
The notice required in Subsection (7)(c)(ii)(B) shall be published in accordance 
with the provisions of Section 
45-1-101
 for three consecutive weeks and inform 
creditors that they are required to bring a cause of action or claim for relief within 
120 days from the first publication of the notice or be forever barred.
(b)
Failure to give the notice required in Subsection (7)(c)(ii) to a creditor does not 
prevent the shortening of the limitations period under Subsection (7)(c)(ii) with 
respect to another creditor who properly received notice by mail or publication.
(9)
(a)
A trust is subject to this section if it is governed by Utah law, as provided in 
Section 
75-7-107
, and if it otherwise meets the requirements of this section.
(b)
A court of this state has exclusive jurisdiction over an action or claim for relief that 
is based on a transfer of property to a trust that is the subject of this section.
(10)
(a)
With respect to a trust that is subject to this section, a claim brought by a 
creditor of a beneficiary who is not the settlor is subject to Section 
75-7-501
 et. seq.
(b)
With respect to an irrevocable trust that is not subject to this section, a claim 
brought by a creditor of a beneficiary who is the settlor is subject to the provisions of 
Subsection 
75-7-505
(2).
(11)
If a provision in this section conflicts with a provision in Sections 
25-6-101
 through 
25-6-407
, the provision of this section shall supersede the conflicting provision in 
Sections 
25-6-101
 through 
25-6-407
.
(12)
Nothing in this section alters rights vested or created under this section before May 
14, 2019.
Section 29, Section 
75B-1-303
 is enacted to read:
75B-1-303
. Requirements for asset protection trust.
(1)
For the protections described in Subsection 
75B-1-302(1)
 to apply to an asset protection 
trust, the asset protection trust shall comply with this section.
(2)
(a)
The trust instrument shall:
(i)
provide that the trust is governed by Utah law and is established in accordance 
with this part;
(ii)
require that at all times at least one trustee be a Utah resident or Utah trust 
company;
(iii)
provide that the settlor, as a beneficiary, may not voluntarily or involuntarily 
transfer:
(A)
the income or principal of the asset protection trust; or
(B)
any other beneficial interest of the settlor;
(iv)
require that the trustee notify in writing every person who has a domestic support 
obligation against the settlor at least 30 days before paying and delivering any 
distribution to the settlor as a beneficiary; and
(v)
require that the notice described in Subsection 
(2)(a)(iv)
 state the date that the 
distribution will be paid and delivered and the amount of the distribution.
(b)
The provision described in Subsection 
(2)(a)(iii)
 is considered a restriction on the 
transfer of the settlor's beneficial interest in the asset protection trust that is 
enforceable under applicable nonbankruptcy law within the meaning of 11 U.S.C. 
Sec. 541(c)(2).
(c)
(i)
If the trustee does not send the notice required under Subsections 
(2)(a)(iv)
 and 
(v), the court may authorize any person with a domestic support obligation against 
the settlor to whom notice was not sent to attach the distribution or future 
distributions.
(ii)
 Notwithstanding Subsection 
(2)(c)(i)
, the person described in Subsection 
(2)(c)(i)
may not:
(A)
satisfy a claim or liability in either law or equity out of the settlor's transfer to 
the trust or the settlor's beneficial interest in the trust; or
(B)
force or require the trustee to make a distribution to the settlor as a beneficiary.
(d)
This Subsection 
(2)
 does not require particular language to be used in the trust 
instrument if the meaning of the trust provision otherwise complies with this section.
(3)
The settlor may not have the ability under the trust instrument, without the consent of a 
person who has a substantial beneficial interest in the trust and whose interest would be 
adversely affected by the exercise of the power held by the settlor:
(a)
to revoke, amend, or terminate all or any part of the trust; or
(b)
to withdraw any property from the trust, except that the settlor, without the approval 
or consent of any person, may be given the power under the trust instrument to 
substitute assets of substantially equivalent value.
(4)
Except as provided in Subsections 
75B-1-304(5)(c)
 and (6), the trust instrument may 
not provide for any mandatory distributions of either income or principal to the settlor, 
as a beneficiary.
(5)
(a)
At the time the settlor transfers any assets to the asset protection trust, the settlor 
may not:
(i)
be in default of making a payment due under a domestic support obligation; or
(ii)
intend to hinder, delay, or defraud a known creditor by transferring the assets to 
the trust.
(b)
A settlor's expressed intention to protect assets in the asset protection trust from the 
settlor's potential future creditors is not evidence of an intent to hinder, delay, or 
defraud a known creditor under Subsection 
(5)(a)(ii)
.
(6)
A transfer of assets to the asset protection trust may not:
(a)
render the settlor insolvent; or
(b)
be derived from unlawful activities.
(7)
A creditor of the settlor has the burden of proving that the requirement in Subsection 
(5)(a)(ii)
 or (6)(a) is not satisfied by clear and convincing evidence.
(8)
(a)
If an asset protection trust does not comply with a requirement described in 
Subsection 
(2)(a)(i)
, (2)(a)(ii), (2)(a)(iii), (3), or (4), none of the property held in the 
asset protection trust will at any time have the benefit of the protections described in 
Subsection 
75B-1-302(1)
.
(b)
If a transfer of assets to an asset protection trust does not comply with the 
requirement described in Subsection 
(5)(a)(i)
, the property transferred to the asset 
protection trust that does not comply with the requirement does not have the benefit 
of the protections described in Subsection 
75B-1-302(1)
 with respect to any person 
with the domestic support obligation.
(c)
If a transfer of assets to an asset protection trust does not comply with the 
requirement described in Subsection 
(5)(a)
(ii) or 
(6)
, the property transferred to the 
trust that does not satisfy the requirement may not have the benefit of the protections 
described in Subsection 
75B-1-302(1)
.
Section 30, Section 
75B-1-304
 is enacted to read:
75B-1-304
. Application of asset protection trust.
The protections described in Subsection 
75B-1-302(1)
 may apply to an asset protection 
trust even if:
(1)
the settlor serves as a cotrustee or as an advisor to the trustee, except that the settlor may 
not determine whether a discretionary distribution will be made;
(2)
the settlor participates in a determination regarding whether a discretionary distribution 
is made to the settlor by:
(a)
requesting a distribution from the trust;
(b)
consulting with the trustees regarding whether a discretionary distribution will be 
made;
(c)
exercising a right to consent to or veto the distribution under a power described in 
Subsection 
(5)(a)
;
(d)
signing documentation in the settlor's capacity as a cotrustee that implements a 
distribution when the other trustees use discretionary power to independently 
authorize a distribution; or
(e)
participating in an action authorizing a distribution if the other trustees can authorize 
the distribution without the settlor's participation;
(3)
the settlor has the authority under the terms of the trust instrument to appoint a 
nonsubordinate advisor or a trust protector who can remove and appoint trustees and 
who can direct, consent to, or disapprove distributions;
(4)
the settlor has the power under the terms of the trust instrument to serve as an 
investment director or to appoint an investment director under Section 
75-7-906
;
(5)
the trust instrument gives the settlor:
(a)
the power to consent to or veto a distribution from the trust;
(b)
an inter vivos or a testamentary nongeneral power of appointment or similar power; 
or
(c)
the right to receive the following types of distributions:
(i)
income, principal, or both in the discretion of a person, including a trustee other 
than the settlor;
(ii)
principal, subject to an ascertainable standard set forth in the trust;
(iii)
income or principal from a charitable remainder annuity trust or charitable 
remainder unitrust, as defined in 26 U.S.C. Sec. 664;
(iv)
a percentage of the value of the trust each year as determined under the trust 
instrument, but not exceeding the amount that may be defined as income under 26 
U.S.C. Sec. 643(b);
(v)
the transferor's potential or actual use of real property held under a qualified 
personal residence trust, or potential or actual possession of a qualified annuity 
interest, within the meaning of 26 U.S.C. Sec. 2702 and the accompanying 
regulations;
(vi)
income or principal from a grantor retained annuity trust or grantor retained 
unitrust that is allowed under 26 U.S.C. Sec. 2702; and
(vii)
income from a trust intended to qualify for the federal estate tax or gift tax 
marital deduction under 26 U.S.C. Sec. 2056(b)(7) or 2523(f);
(6)
the trust instrument authorizes the settlor, as a beneficiary, to use real or personal 
property owned by the trust; or
(7)
with respect to the property held in the trust, the settlor may:
(a)
give a personal guarantee on a debt or obligation secured by the property;
(b)
make payments, directly or indirectly, on a debt or obligation secured by the 
property;
(c)
pay property taxes, casualty and liability insurance premiums, homeowner 
association dues, maintenance expenses, or other similar expenses on the property; or
(d)
pay income tax on income attributable to the portion of property held in the trust, of 
which the settlor is considered to be the owner under 26 U.S.C. Secs. 671 through 
678, which payments will not be considered additional transfers to the trust for 
purposes of this part.
Section 31, Section 
75B-1-305
 is enacted to read:
75B-1-305
. Illusory agreement.
An agreement or understanding, express or implied, between a settlor and a trustee of an 
asset protection trust is void if that agreement or understanding attempts to grant or permit the 
retention by the settlor of greater rights or authority than is stated in the trust instrument.
Section 32, Section 
75B-1-306
 is enacted to read:
75B-1-306
. Affidavit of solvency.
With respect to a transfer of assets to an asset protection trust, a settlor may sign a sworn 
affidavit stating that at the time of the transfer of the assets to the trust:
(1)
the settlor has full right, title, and authority to transfer the assets to the trust;
(2)
the transfer of the assets to the trust will not render the settlor insolvent;
(3)
the settlor does not intend to hinder, delay, or defraud a known creditor by transferring 
the assets to the trust;
(4)
there is no pending or threatened court action against the settlor, except for a court 
action identified by the settlor on an attachment to the affidavit;
(5)
the settlor is not involved in an administrative proceeding that is reasonably expected to 
have a material adverse effect on the financial condition of the settlor, except an 
administrative proceeding identified on an attachment to the affidavit;
(6)
at the time of the transfer of the assets to the trust, the settlor is not in default of a 
domestic support obligation;
(7)
the settlor does not contemplate filing for relief under the provisions of United States 
Code, Title 11, Bankruptcy; and
(8)
the assets being transferred to the trust were not derived from unlawful activities.
Section 33, Section 
75B-1-307
 is enacted to read:
75B-1-307
. Limitations on cause of action for asset protection trust.
(1)
(a)
Except as provided in Subsection 
(1)(b)
, a cause of action or claim for relief under 
this part is not a cause of action or claim for relief under Title 25, Chapter 6, Uniform 
Voidable Transfers Act.
(b)
A cause of action or claim for relief under Subsections 
75B-1-303(5)(a)
 and (6)(a) is 
a cause of action or claim for relief under Section 
25-6-202
 or 
25-6-203
.
(c)
A person, including a creditor, may only bring a cause of action under Subsection 
75B-1-303(5)(a)
 or (6)(a) with regard to the portion of the assets transferred to the 
trustee of the asset protection trust within the time period described in Subsection 
(2)
.
(2)
Notwithstanding Section 
25-6-305
, a cause of action or claim for relief regarding a 
fraudulent conveyance or other voidable transfer of a settlor's assets under this part is 
extinguished unless the action is brought by a creditor of the settlor who was a creditor 
of the settlor before the assets in question were transferred to the asset protection trust 
and the action is brought within the earlier of:
(a)
the later of two years after the transfer is made, or one year after the transfer is or 
reasonably could have been discovered by the creditor if the creditor:
(i)
can demonstrate, by clear and convincing evidence, that the creditor asserted a 
specific claim against the settlor before the transfer; or
(ii)
files another action, other than an action alleging a fraudulent conveyance or 
other voidable transfer against the settlor that asserts a claim based on an act or 
omission of the settlor that occurred before the transfer, and the action described 
in this Subsection 
(2)
 is filed within two years after the transfer; or
(b)
(i)
with respect to a creditor known to the settlor, 120 days after the date on which 
notice of the transfer is mailed to the creditor; or
(ii)
with respect to a creditor not known to the settlor, 120 days after the date on 
which notice of the transfer is first published in a newspaper of general circulation 
in the county in which the settlor then resides, or is published on a public legal 
notice website as defined in Section 
45-1-101
.
(3)
A notice described in Subsection 
(2)(b)(i)
 shall:
(a)
state the name and address of the settlor or the settlor's representative;
(b)
state the name and address of the trustee or the trustee's representative;
(c)
describe the assets that were transferred, except that the notice does not need to state 
the value of the assets if the assets are other than cash; and
(d)
inform the creditor that the creditor is required to bring the creditor's cause of action 
or claim for relief against the settlor and the trustee within 120 days from the mailing 
of the notice or be forever barred.
(4)
A notice described in Subsection 
(2)(b)(ii)
 shall:
(a)
state the name and address of the settlor or the settlor's representative;
(b)
state the name and address of the trustee or the trustee's representative;
(c)
describe the assets that were transferred, except that the notice does not need to state 
the value of the assets;
(d)
be published in accordance with the provisions of Section 
45-1-101
 for three 
consecutive weeks; and
(e)
inform creditors that they are required to bring a cause of action or claim for relief 
within 120 days from the first publication of the notice or be forever barred.
(5)
Failure to give the notice required in Subsection 
(2)(b)
 to a creditor does not prevent the 
shortening of the limitations period under Subsection (2)(b) with respect to another 
creditor who properly received notice by mail or publication.
Section 34, Section 
75B-1-308
 is enacted to read:
75B-1-308
. Claims against beneficiaries of asset protection trust.
(1)
With respect to an asset protection trust, a claim brought by a creditor of a beneficiary 
who is not the settlor is subject to Title 75, Chapter 7, Part 5, Creditor's Claims - 
Spendthrift and Discretionary Trusts.
(2)
With respect to an irrevocable trust that is not subject to this part, a claim brought by a 
creditor of a beneficiary who is the settlor is subject to the provisions of Subsection 
75-7-505(2)
.
Section 35, Section 
75B-1-309
 is enacted to read:
75B-1-309
. Liability of participant in asset protection trust.
(1)
If the settlor signs an affidavit described in Section 
75B-1-306
, a person, including a 
creditor, may not assert a cause of action or claim for relief against a trustee of the asset 
protection trust, or against a person that was involved in the counseling, drafting, 
preparation, execution, or funding of the asset protection trust, for:
(a)
conspiracy to engage in a voidable transfer;
(b)
aiding and abetting a voidable transfer;
(c)
participation in the trust transaction; or
(d)
a similar cause of action or claim for relief described in Subsections 
(1)(a)
 through 
(c).
(2)
For purposes of Subsection 
(1)
, the counseling, drafting, preparation, execution, or 
funding of the trust includes the preparation and funding of a limited partnership, a 
limited liability company, or other entity if interests in the entity are subsequently 
transferred to the trust.
(3)
The creditor or other person prevented from asserting a cause of action or claim for 
relief described in Subsection 
(1)
 may only assert a cause of action against, and is 
limited to recourse against:
(a)
the trust and the trust assets; and
(b)
the settlor to the extent otherwise allowed under this part.
Section 36, Section 
75B-1-310
 is enacted to read:
75B-1-310
. Distributions from asset protection trust.
(1)
If the settlor makes more than one transfer to an asset protection trust, a distribution by 
the trustee is considered to be made from the most recent transfer to the trust.
(2)
A trustee of an asset protection trust may convey property that is held in trust to a 
beneficiary of the trust, including the settlor, for the beneficiary to secure financing with 
a lien or other encumbrance against the property.
(3)
If the property described in Subsection 
(2)
 is reconveyed to the trustee of the asset 
protection trust within 60 days after the day on which the lien or other encumbrance is 
attached, the reconveyance is not considered a transfer to the asset protection trust for 
purposes of calculating the limitations period under Subsection 
75B-1-307(2)
 or for any 
other purpose.
Section 37. 
Effective Date.
This bill takes effect on 
May 7, 2025
.
Section 38. 
Coordinating S.B. 206 with H.B. 334.
If S.B. 206, Estate Planning Amendments, and H.B. 334, Guardianships and Supported 
Decision-Making Agreements Amendments, both pass and become law, the Legislature 
intends that, on May 7, 2025, the changes in H.B. 334 to Subsection 
7-5-1(1)(b)
 not be made.
Section 39. 
Coordinating S.B. 206 with S.B. 100.
If S.B. 206, Estate Planning Amendments, and S.B. 100, Estate Planning Recodification, 
both pass and become law, the Legislature intends that, on May 7, 2025:
(1)
the references in Subsection 
75-7-105(2)(e)
, Subsections 
75-7-505(2)(a)
 and (b), and 
Section 
75-7-501
 in S.B. 206 be changed from "Title 75B, Chapter 1, Part 3, Asset 
Protection Trust," to "Chapter 1, Part 3, Asset Protection Trust";
(2)
the reference in Subsection 
75-7-301(3)
 in S.B. 206 be changed from "Section 
75-7-411
and Title 75B, Chapter 1, Part 3, Asset Protection Trust," to "Section 
75B-2-411
 and 
Chapter 1, Part 3, Asset Protection Trust";
(3)
Section 
75-7-812.5
 enacted in S.B. 206 be renumbered to Section 
75B-2-812.5
;
(4)
Subsections 
75-7-812.5(e)
 and (f) enacted in S.B. 206 be deleted and the remaining 
subsections be renumbered accordingly;
(5)
the references in Subsections 
75A-5-203(11)(b)
, 
75A-5-303(2)(d)
, and 
75A-5-304(1)(a)
in S.B. 206 be changed from "Section 
75-7-103(1)(i)
" to "Subsection 
75B-2-103(8)
";
(6)
Subsections 
75B-1-101(5)
 and (8) enacted in S.B. 206 be deleted and the remaining 
subsections be renumbered accordingly;
(7)
the reference in Subsection 
75B-1-302(3)
 in S.B. 206 be changed from "Section 
75-7-107" to "Section 75B-2-107";
(8)
the reference in Subsection 
75B-1-304(4)
 in S.B. 206 be changed from "Section 
75-7-906" to "Section 75B-2-906"; and
(9)
the reference in Subsection 
75B-1-308(2)
 in S.B. 206 be changed from "Subsection 
75-7-505(2)
" to "Subsection 
75B-2-505(2)
."
3-12-25 3:45 PM