Chapter 46 — Chapter 46

requirement. A powerholder's substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if: A. the powerhold…

A. A powerholder of a general power of appointment that permits appointment to the powerholder or the powerholder's estate may make any appointment, including an appointment in trust or creating a new power of appointment, that the powerholder could make in disposing of the power…

appointee's descendant. A. Subject to Sections 45-2-603 and 45-2-707 NMSA 1978, an appointment to a deceased appointee is ineffective. B. Unless the terms of the instrument creating a power of appointment manifest a contrary intent, a powerholder of a nongeneral power may exercis…

A. Except as otherwise provided in Section 306 [46-11-306 NMSA 1978] of the Uniform Powers of Appointment Act, an exercise of a power of appointment in favor of an impermissible appointee is ineffective. B. An exercise of a power of appointment in favor of a permissible appointee…

If a powerholder exercises a power of appointment in a disposition that also disposes of property the powerholder owns, the owned property and the appointive property must be allocated in the permissible manner that best carries out the powerholder's intent. History: Laws 2016, c…

property under general power. To the extent a powerholder of a general power of appointment, other than a power to withdraw property from, revoke or amend a trust, makes an ineffective appointment: A. the gift-in-default clause controls the disposition of the ineffectively appoin…

unexercised general power. To the extent a powerholder releases or fails to exercise a general power of appointment other than a power to withdraw property from, revoke or amend a trust: A. the gift-in-default clause controls the disposition of the unappointed property; or B. if …

unexercised nongeneral power. To the extent a powerholder releases, ineffectively exercises or fails to exercise a nongeneral power of appointment: A. the gift-in-default clause controls the disposition of the unappointed property; or B. if there is no gift-in-default clause or t…

appointment to taker in default. Unless the terms of the instrument creating or exercising a power of appointment manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share f…

If a powerholder makes an appointment to a taker in default of appointment and the appointee would have taken the property under a gift-in-default clause had the property not been appointed, the power of appointment is deemed not to have been exercised and the appointee takes und…

A powerholder may revoke or amend an exercise of a power of appointment only to the extent that: A. the powerholder reserves a power of revocation or amendment in the instrument exercising the power of appointment and, if the power is nongeneral, the terms of the instrument creat…

As provided by the Uniform Disclaimer of Property Interests Act [45-2-1101 to 45-2- 1116 NMSA 1978]: A. a powerholder may disclaim all or part of a power of appointment; and B. a permissible appointee, appointee or taker in default of appointment may disclaim all or part of an in…

A powerholder may release a power of appointment, in whole or in part, except to the extent that the terms of the instrument creating the power prevent the release. History: Laws 2016, ch. 69, § 402.

A powerholder of a releasable power of appointment may release the power in whole or in part: A. by substantial compliance with a method provided in the terms of the instrument creating the power; or B. if the terms of the instrument creating the power do not provide a method or …

A powerholder may revoke or amend a release of a power of appointment only to the extent that: A. the instrument of release is revocable by the powerholder; or B. the powerholder reserves a power of revocation or amendment in the instrument of release. History: Laws 2016, ch. 69,…

appointment. A powerholder of a presently exercisable power of appointment may contract: A. not to exercise the power; or B. to exercise the power if the contract when made does not confer a benefit on an impermissible appointee. History: Laws 2016, ch. 69, § 405.

exercisable. A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if the powerholder: A. is also the donor of the power; and B. has reserved the power in a revocable trust. History: Laws 2016, ch. 69,…

appoint. The remedy for a powerholder's breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract. History: Laws 2016, ch. 69, § 407.

A. As used in this section, "power of appointment created by the powerholder" includes a power of appointment created in a transfer by another person to the extent that the powerholder contributed value to the transfer. B. Appointive property subject to a general power of appoint…

powerholder. A. Except as otherwise provided in Subsection B of this section, appointive property subject to a general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of: (1) the powerholder, to the extent that the powerhold…

A. For purposes of this article and except as otherwise provided in Subsection B of this section, a power to withdraw property from a trust is treated, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the propert…

A. Except as otherwise provided in Subsections B and C of this section, appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder's estate. B. Appointive property subject to a nongeneral power of ap…

In applying and construing the Uniform Powers of Appointment Act, consideration shall be given to the need to promote uniformity of the act with respect to its subject matter among states that enact it. History: Laws 2016, ch. 69, § 601.

Commerce Act. The Uniform Powers of Appointment Act modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or auth…

A. Except as otherwise provided in the Uniform Powers of Appointment Act, on and after January 1, 2017: (1) the Uniform Powers of Appointment Act applies to a power of appointment created before, on or after January 1, 2017; (2) the Uniform Powers of Appointment Act applies to a …

Sections 1-101 through 1-129 [46-12-101 to 46-12-129 NMSA 1978] of this act may be cited as the "Uniform Trust Decanting Act". History: Laws 2016, ch. 72, § 1-101.

As used in the Uniform Trust Decanting Act: A. "appointive property" means the property or property interest subject to a power of appointment; B. "ascertainable standard" means a standard relating to an individual's health, education, support or maintenance within the meaning of…

A. Except as otherwise provided in Subsections B and C of this section, the Uniform Trust Decanting Act applies to an express trust that is irrevocable or revocable by the settlor only with the consent of the trustee or a person holding an adverse interest. B. The Uniform Trust D…

A. In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust. B. The Uniform Trust Decanting Act does not create or imply a duty to exercise the decant…

A. The Uniform Trust Decanting Act applies to a trust that: (1) has its principal place of administration in New Mexico, including a trust whose principal place of administration has been changed to New Mexico; or (2) provides by its trust instrument that it is governed by New Me…

A trustee or other person that reasonably relies on the validity of a distribution of part or all of the property of a trust to another trust, or a modification of a trust under the Uniform Trust Decanting Act, New Mexico law other than the Uniform Trust Decanting Act or the law …

A. In this section, a notice period begins on the day notice is given under Subsection C of this section and ends fifty-nine days after the day notice is given. B. Except as otherwise provided in the Uniform Trust Decanting Act, an authorized fiduciary may exercise the decanting …

A. Notice to a person with authority to represent and bind another person under a first-trust instrument or the Uniform Trust Code [Chapter 46A NMSA 1978] has the same effect as notice given directly to the person represented. B. Consent of or waiver by a person with authority to…

A. On application of an authorized fiduciary, a person entitled to notice under Subsection C of Section 1-107 [46-12-107 NMSA 1978] of the Uniform Trust Decanting Act, a beneficiary or, with respect to a charitable interest, the attorney general or other person that has standing …

An exercise of the decanting power shall be made in a record signed by an authorized fiduciary. The signed record shall, directly or by reference to the notice required by Section 1-107 [46-12-107 NMA 1978] of the Uniform Trust Decanting Act, identify the first trust and the seco…

A. As used in this section: (1) "noncontingent right" means a right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. "Noncontingent right" does not include a right held by a beneficiary if any person has discre…

A. As used in this section, "limited distributive discretion" means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard. B. An authorized fiduciary that has limited distributive discretion over the principal of the …

A. As used in this section: (1) "beneficiary with a disability" means a beneficiary of a first trust who the special-needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an indiv…

A. As used in this section: (1) "determinable charitable interest" means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event or after the passage of a specified time and that is unconditional or will be…

A. An authorized fiduciary shall not exercise the decanting power to the extent that the first-trust instrument expressly prohibits exercise of: (1) the decanting power; or (2) a power granted by state law to the fiduciary to distribute part or all of the principal of the trust t…

A. If a first-trust instrument specifies an authorized fiduciary's compensation, the fiduciary shall not exercise the decanting power to increase the fiduciary's compensation above the specified compensation unless: (1) all qualified beneficiaries of the second trust consent to t…

A. Except as otherwise provided in this section, a second-trust instrument shall not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first-trust instrument. B. A second-trust instrument may provide for indemnification of an authoriz…

An authorized fiduciary shall not exercise the decanting power to modify a provision in a first-trust instrument granting another person power to remove or replace the fiduciary unless: A. the person holding the power consents to the modification in a signed record and the modifi…

A. As used in this section: (1) "grantor trust" means a trust as to which a settlor of a first trust is considered the owner under 26 U.S.C. Sections 671 through 677, as amended, or 26 U.S.C. Section 679, as amended; (2) "Internal Revenue Code" means the United States Internal Re…

A. Subject to Subsection B of this section, a second trust may have a duration that is the same as or different from the duration of the first trust. B. To the extent that property of a second trust is attributable to property of the first trust, the property of the second trust …

An authorized fiduciary may exercise the decanting power regardless of whether under the first trust's discretionary distribution standard the fiduciary would have made, or could have been compelled to make, a discretionary distribution of principal at the time of the exercise. H…

A. If exercise of the decanting power would be effective under the Uniform Trust Decanting Act except that the second-trust instrument in part does not comply with the Uniform Trust Decanting Act, the exercise of the power is effective and the following rules apply with respect t…

A. As used in this section: (1) "animal trust" means a trust or an interest in a trust created to provide for the care of one or more animals; and (2) "protector" means a person appointed in an animal trust to enforce the trust on behalf of the animal or, if no such person is app…

A reference in the Uniform Trust Code [Chapter 46A NMSA 1978] to a trust instrument or terms of the trust includes a second-trust instrument and the terms of the second trust. History: Laws 2016, ch. 72, § 1-124.

A. For purposes of New Mexico law other than the Uniform Trust Decanting Act and subject to Subsection B of this section, a settlor of a first trust is deemed to be the settlor of the second trust with respect to the portion of the principal of the first trust subject to the exer…