Legislative Update: AN ACT TO AMEND TITLE 12 OF THE DELAWARE CODE RELATING TO FIDUCIARY RELATIONS.

On July 10, 2015, Senate Bill 42 was signed into law by Governor Jack Markell.  The legislation codified existing law regarding the permissibility of the terms of a governing instrument to vary the right of a beneficiary to be informed of his or her interest in a trust for a period of time.  The new legislation provides a non-exclusive list of circumstances that would be deemed to constitute a “period of time” under Section 3303(c) of Title 12.  In addition, a new Section 3303(d) provides that a “designated representative” (as subsequently defined in Section 3339) can bind a beneficiary during a period of confidentiality as to both judicial proceedings and nonjudicial matters.

The Bill also adds a new section to Title 12 of the Delaware Code, Section 3339, which (i) includes a definition of a “designated representative,” (ii) clarifies the fact that the terms of a trust instrument may authorize certain persons to designate or appoint one or more designated representatives, (iii) provides that a person who is appointed as a designated representative will serve only upon his or her acceptance of the position, and (iv) provides a presumption that a designated representative will act in a fiduciary capacity.

Commonwealth Trust Company is pleased to provide this article as a guide. Commonwealth Trust Company is not engaged in the practice of law and is not providing legal advice by the provision of these materials. Commonwealth Trust Company recommends that clients seek the opinion of their attorney regarding the specific legal and tax issues addressed in this article.