The Nebraska Uniform Trust Code from the Trenches: a Practitioner's Guide to Understanding Nebraska's New Uniform Trust Code

• Jurisdiction: Nebraska,United States
• Citation: Vol. 37
• Publication year: 2022

37 Creighton L. Rev. 93. THE NEBRASKA UNIFORM TRUST CODE FROM THE TRENCHES: A PRACTITIONER'S GUIDE TO UNDERSTANDING NEBRASKA'S NEW UNIFORM TRUST CODE

Creighton Law Review

Vol. 37

WILLIAM J. LINDSAY, JR.(fn*)

I. INTRODUCTION

The National Conference of Commissioners on Uniform State Laws adopted a Uniform Trust Code ("UTC") in 2000. Changes were made to the original act in 2001. The UTC was first introduced in the 2001 Nebraska Legislature as Legislative Bill 361. At that time, the Nebraska Legislature appointed a study committee to review the proposed legislation. A report of that study committee, pursuant to 2002 Legislative Resolution 367, was presented to the 2003 Legislature's Banking, Insurance and Commerce Committee. The 2003 Legislature passed Legislative Bill 130 on March 14, 2003 and the governor signed the bill on March 20, 2003.(fn1)

When you are researching an issue under the Nebraska Uniform Trust Code ("Nebraska UTC"), the place to start is the report of the interim study committee called "Comments and Recommendations for Enactment of a Nebraska Uniform Trust Code."(fn2) The author suggests that this report will be very helpful in future years and that this report should be printed and retained by any Nebraska attorney who handles trusts.(fn3) The committee report contains the Uniform Trust Code with all of its comments and also includes Nebraska comments. The Nebraska comments are organized into seven different categories. There were five changes in the legislation enacted in Nebraska from the recommendations contained in the committee report.(fn4)

There are other sources of information for the UTC. For example, the UTC itself appears on the internet.(fn5) This official version of the UTC contains extensive commentary. The commentary is helpful in analyzing the law of trusts throughout the nation and in understanding the UTC. However, this website contains the UTC as it is modified from time to time. There are ongoing revisions to the UTC. The drafter of a trust must be careful to determine whether or not a particular provision of the UTC was adopted in Nebraska. The drafter must also determine whether or not the language used is the same. The comments are also contained in the Nebraska legislative report that is described above.

There are several uniform acts that have been adopted in Nebraska that are unaffected by or have had only minor amendments made to them by Legislative Bill 130 ("L.B. 130") in adopting the Nebraska UTC.(fn6) The first of these is the Uniform Statutory Rule Against Perpetuities Act.(fn7) The only changes to this act that the Nebraska UTC made were alterations of some statutory cross references.(fn8) Although the Uniform Statutory Rule Against Perpetuities Act in Nebraska was not modified by the adoption of the Nebraska UTC, it was modified by the 2002 legislature(fn9) which added to section 76-2005(9); a statute permitting the creation of dynasty trusts in Nebraska. In other words, the Nebraska Statutory Rule Against Perpetuities Act does provide that a trust in which the governing instrument states that the Rule Against Perpetuities does not apply to the trust and which complies with other statutes is not subject to the Rule Against Perpetuities. This means there is no time in which the trust assets need to vest outside of the trust. This applies only to trusts created by will or inter vivos agreement executed or amended on or after July 20, 2003 and all trusts created by exercise of power of appointment granted under instruments executed or amended on or after July 20, 2003.(fn10)

The next act is the Uniform Testamentary Additions to Trust Act.(fn11) The comment to the UTC states that the Uniform Testamentary Additions to Trust Act is part of the Uniform Probate Code because it validates provisions in wills; as such, it is not considered part of the UTC. The next act is the Nebraska Uniform Principal and Income Act.(fn12) Nebraska adopted the 1997 version of the Uniform Principal and Income Act in 2001. The Principal and Income Act applies to both estates and trusts. Allocation of principal and income is made in accordance with the act, except as provided by terms of the trust. Provisions in trust agreements, which determine the share of income or principal, should be compared to the Principal and Income Act.

The Uniform Probate Code was originally approved in 1969. Nebraska has generally adopted the 1969 version of the Uniform Probate Code with modifications.(fn13) There have been a number of changes to provisions in the Nebraska Probate Code based upon the Nebraska UTC. Procedures that formerly applied to trusts that were contained in the Uniform Probate Code have been placed into the Nebraska UTC. Nebraska had also adopted the Nebraska Uniform Prudent Investor Act, which now has been incorporated into Article 9 of the Nebraska UTC.

The Nebraska Uniform Trust Code becomes active on the second of January 1 after the operative date of the act.(fn14) Except as otherwise provided by the Nebraska UTC, the Nebraska UTC applies to all trusts created before, on or after the operative date of the UTC. The Nebraska UTC applies to all judicial proceedings concerning trusts commenced on or after the operative date of the act. The Nebraska UTC applies to judicial proceedings concerning trusts commenced before the operative date of the act. However, if a court is able to find that the application of a particular provision of the Nebraska UTC would substantially interfere with the effective conduct of the judicial proceedings or prejudice rights of the parties, the court may disregard the particular provisions of the Nebraska UTC and apply the former law.(fn15) Section 30-38,110 of the Nebraska Revised Statutes is section 1106 of the Nebraska UTC.(fn16)

II. RECOMMENDED READING ORDER FOR THE NEBRASKA UNIFORM TRUST CODE

The purpose of a reading order, with the particular sections read in the order listed below, is to allow the reader to conceptualize how the Nebraska Uniform Trust Code works.

Neb. Rev. Stat. § Title

30-3801 Code, How Cited

30-3802 Scope

30-3803 Definitions

30-3805 Default and Mandatory Rules

30-3827 Methods of Creating Trusts

30-3828 Requirements for Creation

30-3829 Trusts Created in Other Jurisdictions

30-3830 Trust Purposes

30-3853 Capacity of Settlor of Revocable Trust

30-3854 Revocation or Amendment of Revocable Trust

30-3855 Settlor's Powers, Powers of Withdrawal

30-3866 Duty to Administer Trust

30-3867 Duty of Loyalty

30-3878 Duty to Inform and Report

30-3880 General Powers of Trustee

30-3890 Remedies for Breach of Trust

30-3897 Exculpation of Trustee

30-38,109 Electronic Records and Signatures

30-38,110 Application to Existing Relationships

Of particular importance is section 10517 of the Nebraska UTC, which contains a set of default provisions. Ordinarily, any part of the Nebraska UTC can be overridden by the "terms of the trust."(fn18) However, there are a number of provisions which can not be overridden by terms of the trust.(fn19) This reflects a change from current Nebraska law. Other than a few examples from case law, neither the Nebraska statutes nor case law have provided for mandatory rules that cannot be changed by the settlor. One Nebraska case law exception is that the use of the words "absolute, uncontrolled discretion" has not been interpreted literally. Historically, there have been some limits on the use of such a phrase.(fn20)

III. SCOPE (SECTION 102)

Section 102 of the Nebraska UTC provides for the scope of coverage of the act.(fn21) The statute provides "[t]he Nebraska Uniform Trust Code applies to express trusts, charitable or non-charitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust."(fn22)

A. EXPRESSED TRUSTS

Expressed trusts do not always arise in an estate planning or other donative context. A trust created pursuant to a divorce decree would be included under the Nebraska UTC. For example, the Nebraska UTC would cover a trust created to provide for the benefit of a child's education at the collegiate level, which was made pursuant to the requirements of the divorce decree.(fn23) Another example of a trust which would be subject to the Nebraska UTC, to the extent not supplanted by federal law, is a trust created by a parent, guardian or a court under 42 U.S.C. § 1396p(d)(4)(A). This type of trust contains assets belonging to an individual who is under age sixty-five and who is disabled as defined in the Medicaid Act.(fn24) This trust is established for the benefit of the individual by a parent, grandparent, legal guardian or a court. The trust provides for the distribution to the state of all amounts remaining in the trust upon the death of the individual up to an amount equal to the total medical assistance paid on behalf of the individual. Except to the extent supplanted by the requirements of the federal Medicaid law, the Nebraska UTC would apply to such a trust.

B. RESULTING AND CONSTRUCTIVE TRUSTS

Resulting trusts and constructive trusts are actually a remedy. They are not an expressed trust and thus are not included within the scope of the Nebraska UTC. In other words, the Nebraska UTC does not apply to a resulting trust or to a constructive trust. Because these remedies are...