UTC §301(d) is a bracketed provision providing that a settlor may not represent and bind a beneficiary with respect to the termination or modification of a trust. The purpose of this provision is to avoid the possible inclusion of the trust in the settlor’s estate for estate tax purposes because, arguably, participation in the termination or modification of a trust constitutes a retained interest under §2036 of the Internal Revenue Code. UTC §301(d) is omitted from DC §19-1303.01 and also omitted from MD §14.5-301. UTC §301(d) is included in VA §64.2-714.
The representation provisions permit notice to be given to a person who may represent and bind another person and provide that the consent of a person who may represent and bind another person is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have been effective. DC §19-1303.01(b) and VA §64.2-714(B) specify that an objection to consent is made by notifying the trustee or the representative. MD §14.5-301(b) specifies that an objection to consent must be made by notifying the trustee and the representative. In addition, under MD §14.5-301(a), the person represented with respect to notice to that person may object to the representation as to notice by notifying the trustee and the representative.
UTC §301(d) is a bracketed provision providing that a settlor may not represent and bind a beneficiary with respect to the termination or modification of a trust. The purpose of this provision is to avoid the possible inclusion of the trust in the settlor’s estate for estate tax purposes because, arguably, participation in the termination or modification of a trust constitutes a retained interest under
§2036 of the Internal Revenue Code. UTC §301(d) is omitted from DC §19-1303.01 and also omitted from MD §14.5-301. UTC §301(d) is included in VA §64.2-714.
The representation provisions permit notice to be given to a person who may represent and bind another person and provide that the consent of a person who may represent and bind another person is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have been effective. DC §19-1303.01(b) and VA §64.2-714(B) specify that an objection to consent is made by notifying the trustee or the representative. MD §14.5-301(b) specifies that an objection to consent must be made by notifying the trustee and the representative. In addition, under MD §14.5-301(a), the person represented with respect to notice to that person may object to the representation as to notice by notifying the trustee and the representative.
MD §14.5-301(d) and (e) are additional representation provisions, absent from UTC §301, which provide that a representative may act on behalf of another person whether or not there is a judicial proceeding pending and, in making decisions, may consider the general benefit accruing to the members of the represented individual’s family. These additional representation provisions are included in
UTC §305, DC §19-1303.05, and VA §64.2-718, which pertain to the appointment of a representative by the court.
UTC §301(d) is a bracketed provision providing that a settlor may not represent and bind a beneficiary with respect to the termination or modification of a trust. The purpose of this provision is to avoid the possible inclusion of the trust in the settlor’s estate for estate tax purposes because, arguably, participation in the termination or modification of a trust constitutes a retained interest under §2036 of the Internal Revenue Code. UTC §301(d) is omitted from DC §19-1303.01 and also omitted from MD §14.5-301. UTC §301(d) is included in VA §64.2-714.
The representation provisions permit notice to be given to a person who may represent and bind another person and provide that the consent of a person who may represent and bind another person is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have been effective. DC §19-1303.01(b) and VA §64.2-714(B) specify that an objection to consent is made by notifying the trustee or the representative. MD §14.5-301(b) specifies that an objection to consent must be made by notifying the trustee and the representative. In addition, under MD §14.5-301(a), the person represented with respect to notice to that person may object to the representation as to notice by notifying the trustee and the representative.
UTC §301(d) is a bracketed provision providing that a settlor may not represent and bind a beneficiary with respect to the termination or modification of a trust. The purpose of this provision is to avoid the possible inclusion of the trust in the settlor’s estate for estate tax purposes because, arguably, participation in the termination or modification of a trust constitutes a retained interest under §2036 of the Internal Revenue Code. UTC §301(d) is omitted from DC §19-1303.01 and also omitted from MD §14.5-301. UTC §301(d) is included in VA §64.2-714.
Hide/Show UTC · Hide/Show DC · Hide/Show MD · Hide/Show VA
UTC
(a) Notice to a person who may represent and bind another person under this [article] has the same effect as if notice were given directly to the other person.
(b) The consent of a person who may represent and bind another person under this [article] is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.
(c) Except as otherwise provided in Sections [411 and] 602, a person who under this [article] may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor’s behalf.
[(d) A settlor may not represent and bind a beneficiary under this [article] with respect to the termination or modification of a trust under Section 411(a).]
DC
(a) Notice to a person who may represent and bind another person under this subchapter has the same effect as if notice were given directly to the other person.
(b) The consent of a person who may represent and bind another person under this subchapter is binding on the person represented unless the person represented objects to the representation by notifying the trustee or the representative before the consent would otherwise have become effective.
(c) Except as otherwise provided in sections 19-1304.11 and 19-1306.02, a person who under this subchapter may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor's behalf.
[MISSING UTC(d)]
MD
(a) Except as required by the applicable rules of civil procedure in a judicial proceeding, notice to a person that is authorized to represent and bind another person under this subtitle has the same effect as if notice were given directly to the other person unless the person represented objects to the representation by notifying the trustee and the representative before the notice would otherwise have become effective.
(b) The consent of a person that is authorized to represent and bind another person under this subtitle is binding on the person represented unless the person represented objects to the representation by notifying the trustee and the representative before the consent would otherwise have become effective.
(c) Except as otherwise provided in [MISSING REFERENCE TO OTHER SECTION] § 14.5–602 of this title, a person that under this subtitle is authorized to represent a settlor that lacks capacity may receive notice and give a binding consent on behalf of the settlor.
[MISSING [UTC(d)]
(d) A representative may act on behalf of the individual represented with respect to a matter arising under this title, whether or not a judicial proceeding concerning the trust is pending.
(e) In making decisions as a representative of an individual, the representative may consider the general benefit accruing to the living members of the family of the individual.
VA
A. Notice to a person who may represent and bind another person under this chapter has the same effect as if notice were given directly to the other person.
B. The consent of a person who may represent and bind another person under this chapter is binding on the person represented unless the person represented objects to the representation by notifying the trustee or the representative before the consent would otherwise have become effective.
C. Except as otherwise provided in §§ 64.2-729 and 64.2-751, a person who under this chapter may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor's behalf.
D. A settlor may not represent and bind a beneficiary under this chapter with respect to the termination or modification of a trust under § 64.2-729.
UTC §302 permits the holder of a general testamentary power of appointment to represent and bind persons whose interests, as permissible appointees or takers in default, are subject to the power, but only if there is no conflict of interest between the powerholder and the persons represented with respect to the particular question or dispute.
UTC §302 permits the holder of a general testamentary power of appointment to represent and bind persons whose interests, as permissible appointees or takers in default, are subject to the power, but only if there is no conflict of interest between the powerholder and the persons represented with respect to the particular question or dispute.
Both DC §19-1303.02 and MD §14.5-302 omit the conflict of interest proviso because the powerholder can act to include or exclude the permissible appointees or takers in default regardless of whether a conflict of interest exists; this omission renders irrelevant any concern about a conflict of interest. VA §64.2-715 retains the conflict of interest proviso.
N.B. DC §19-1303.02 confusingly provides that the “holder of a power of appointment” may represent and bind permissible appointees or takers in default. This statute then defines a “qualified power of appointment” in the same manner as MD §14.5-302(b), described above, but there is no other reference elsewhere in the statute (or in the entire DC UTC) to a “qualified power of appointment,” and so it is unclear from a literal reading of DC §19-1303.02 whether the statute applies to any powerholder or only one who has a general power of appointment (or a broad limited power of appointment).
UTC §302 permits the holder of a general testamentary power of appointment to represent and bind persons whose interests, as permissible appointees or takers in default, are subject to the power, but only if there is no conflict of interest between the powerholder and the persons represented with respect to the particular question or dispute.
Both DC §19-1303.02 and MD §14.5-302 omit the conflict of interest proviso because the powerholder can act to include or exclude the permissible appointees or takers in default regardless of whether a conflict of interest exists; this omission renders irrelevant any concern about a conflict of interest. VA §64.2-715 retains the conflict of interest proviso.
N.B. MD §14.5-302 permits the holder of a “qualified power of appointment” to represent and bind permissible appointees or takers in default. The term “qualified power of appointment” is defined in MD §14.5-302(b) as either a general power of appointment or a power of appointment exercisable in favor of all persons other than the powerholder, his estate, his creditors, and creditors of his estate.
Hide/Show UTC · Hide/Show DC · Hide/Show MD · Hide/Show VA
UTC
To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
DC
[MISSING "TO THE EXTENT THERE IS NO CONFLICT OF INTEREST . . . QUESTION OR DISPUTE"] The holder of a power of appointment may represent and bind persons whose interests as permissible appointees or takers in default [MISSING "OR OTHERWISE"] are subject to the power. A qualified power of appointment is a power exercisable in favor of:
(1) The power holder, the power holder's estate, the power holder's creditors and the creditors of the power holder's estate; or
(2) All persons other than the power holder, the power holder's estate, the power holder's creditors, and the creditors of the power holder's estate.
MD
[MISSING "TO THE EXTENT THERE IS NO CONFLICT OF INTEREST . . . QUESTION OR DISPUTE"] (a) The holder of a qualified power of appointment may represent and bind persons whose interests as permissible appointees or takers in default [MISSING "OR OTHERWISE"] are subject to the power.
(b) A qualified power of appointment is:
(1) A general power of appointment; or
(2) A power of appointment exercisable in favor of all persons other than the power holder, the estate of the power holder, the creditors of the power holder, and the creditors of the estate of the power holder.
VA
To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
DC §19-1303.03(8) provides that a qualified beneficiary may represent and bind any beneficiary who would succeed to his or her interest under the terms of the trust or pursuant to the exercise of a power of appointment. This provision appears in none of the UTC, the MTA, and the VA UTC.
To the extent there is no conflict of interest with respect to the particular question or dispute, UTC §303(4) permits a trustee to represent and bind the beneficiaries of the trust. The same provision appears in DC §19-1303.03(4) and VA §64.2-716(4). However, MD §14.5-303(4) provides that a trustee of a trust that is a beneficiary of another trust may represent and bind the beneficiaries of the trust that is the beneficiary of the other trust. Similarly, UTC §303(5), DC §19-1303.03(5), and VA §64.2-716(5) provide that a personal representative of a decedent’s estate may represent and bind persons interested in the estate. MD §14.5-303(5) provides that a personal representative of a decedent’s estate that is a beneficiary of a trust may represent and bind interested persons in the estate.
UTC §303(6) and all three jurisdictions permit a parent to represent and bind the parent’s minor or unborn child if a conservator or guardian for the child has not been appointed. MD extends this provision to include an incapacitated child, an unknown child of the parent, and a child whose location is unknown and not reasonably ascertainable. MD §14.5-303(7) (which became effective on October 1, 2016), DC §19-1303.03(7), and VA §64.2-716(7). allow an individual to represent a grandchild or more remote descendant, whether born or unborn, who is incapacitated or whose location is unknown and unascertainable (Maryland), whom a parent may not represent and bind (DC), or who is not otherwise represented (Virginia).
Hide/Show UTC · Hide/Show DC · Hide/Show MD · Hide/Show VA
UTC
To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) a [conservator] may represent and bind the estate that the [conservator] controls;
(2) a [guardian] may represent and bind the ward if a [conservator] of the ward’s estate has not been appointed;
(3) an agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(4) a trustee may represent and bind the beneficiaries of the trust;
(5) a personal representative of a decedent’s estate may represent and bind persons interested in the estate; and
(6) a parent may represent and bind the parent’s minor or unborn child if a [conservator] or [guardian] for the child has not been appointed.
DC
To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A conservator may represent and bind the estate that the conservator controls;
(2) A guardian may represent and bind the ward if a conservator of the ward's estate has not been appointed;
(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(4) A trustee may represent and bind the beneficiaries of the trust;
(5) A personal representative of a decedent's estate may represent and bind persons interested in the estate;
(6) A parent may represent and bind the parent's minor or unborn child if a conservator or guardian for the child has not been appointed;
(7) An individual may represent a grandchild or a more remote descendent, whether born or unborn, whom a parent may not represent and bind under paragraph (6) of this subsection; and
(8) A qualified beneficiary may represent and bind any beneficiary who may succeed to the qualified beneficiary's interest under the terms of the trust or pursuant to the exercise of a power of appointment.
MD
To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A guardian of the property may represent and bind the minor or disabled person [MISSING "ESTATE THAT THE [CONSERVATOR] CONTROLS"];
(2) A guardian of the person may represent and bind the minor or disabled person [SUBSTITUTED FOR 'WARD"] if a guardian of the property has not been appointed;
(3) An agent having specific authority to act with respect to trust matters [SUBSTITUTED FOR "THE PARTICULAR QUESTION OR DISPUTE"] may represent and bind the principal;
(4) A trustee of a trust that is a beneficiary of another trust may represent and bind the beneficiaries of the trustthat is the beneficiary of the other trust;
(5) A personal representative of the estate of a decedent that is a beneficiary of a trust may represent and bind interested persons in the estate; and
(6) A parent may represent and bind the minor, incapacitated, unborn, or unknown child of the parent or child of the parent whose location is unknown and not reasonably ascertainable if a guardian of the property or guardian of the person for the child has not been appointed.
(7) If a minor, an incapacitated, unborn, or unknown individual or an individual whose location is unknown and not reasonably ascertainable is not otherwise represented under this section, a grandparent or more remote ancestor may represent and bind the individual.
VA
To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
1. A conservator or guardian of the estate may represent and bind the estate that such fiduciary [SUBSTITUTED FOR "THE CONSERVATOR"] controls;
2. A guardian may represent and bind the ward if a conservator or guardian of the ward's estate has not been appointed;
3. An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
4. A trustee may represent and bind the beneficiaries of the trust;
5. A personal representative of a decedent's estate may represent and bind persons interested in the estate;
6. A parent may represent and bind the parent's minor or unborn child if a [MISSING "CONSERVATOR OR"] guardian of the estate or guardian for the child has not been appointed; and
7. If a minor or unborn person is not otherwise represented under this section, a grandparent or more remote ancestor may represent and bind that minor or unborn person.
UTC §304 permits representation of a minor, incapacitated, or unborn person, or of a person whose location is unknown and cannot reasonably be ascertained, by another person (or “representative” in Maryland) who has a substantially identical interest with respect to a question or dispute, absent a conflict of interest. MTA 14.5-304 (which became effective on October 1, 2016), DC §19-1303.04, and VA §64.2-717 provide that the “conflict of interest” precludes representation only if the conflict relates to the particular question or dispute. In other words, if the representative and the represented person have a conflict of interest that is unrelated to the particular question or dispute at hand, then representation is permitted notwithstanding the unrelated conflict of interest.
UTC §304 permits representation of a minor, incapacitated, or unborn person, or of a person whose location is unknown and cannot reasonably be ascertained, by another person (or “representative” in Maryland) who has a substantially identical interest with respect to a question or dispute, absent a conflict of interest. MTA 14.5-304 (which became effective on October 1, 2016), DC §19-1303.04, and VA §64.2-717 provide that the “conflict of interest” precludes representation only if the conflict relates to the particular question or dispute. In other words, if the representative and the represented person have a conflict of interest that is unrelated to the particular question or dispute at hand, then representation is permitted notwithstanding the unrelated conflict of interest.
UTC §304 permits representation of a minor, incapacitated, or unborn person, or of a person whose location is unknown and cannot reasonably be ascertained, by another person (or “representative” in Maryland) who has a substantially identical interest with respect to a question or dispute, absent a conflict of interest. MTA 14.5-304 (which became effective on October 1, 2016), DC §19-1303.04, and VA §64.2-717 provide that the “conflict of interest” precludes representation only if the conflict relates to the particular question or dispute. In other words, if the representative and the represented person have a conflict of interest that is unrelated to the particular question or dispute at hand, then representation is permitted notwithstanding the unrelated conflict of interest.
UTC §304 permits representation of a minor, incapacitated, or unborn person, or of a person whose location is unknown and cannot reasonably be ascertained, by another person (or “representative” in Maryland) who has a substantially identical interest with respect to a question or dispute, absent a conflict of interest. MTA 14.5-304 (which became effective on October 1, 2016), DC §19-1303.04, and VA §64.2-717 provide that the “conflict of interest” precludes representation only if the conflict relates to the particular question or dispute. In other words, if the representative and the represented person have a conflict of interest that is unrelated to the particular question or dispute at hand, then representation is permitted notwithstanding the unrelated conflict of interest.
Hide/Show UTC · Hide/Show DC · Hide/Show MD · Hide/Show VA
UTC
Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.
DC
Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to the particular question or dispute.
MD
Unless otherwise represented, a minor, an incapacitated or unborn individual, or an individual whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by a representative having a substantially identical interest with respect to a particular question or dispute, but only to the extent that there is no conflict of interest between the representative and the individual represented with respect to the question or dispute.
VA
Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest with respect to the particular question or dispute between the representative and the person represented.
Hide/Show UTC · Hide/Show DC · Hide/Show MD · Hide/Show VA
UTC
(a) If the court determines that an interest is not represented under this [article], or that the otherwise available representation might be inadequate, the court may appoint a [representative] to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A [representative] may be appointed to represent several persons or interests.
(b) A [representative] may act on behalf of the individual represented with respect to any matter arising under this [Code], whether or not a judicial proceeding concerning the trust is pending.
(c) In making decisions, a [representative] may consider general benefit accruing to the living members of the individual’s family.
DC
(a) If the court determines that an interest is not represented under this subchapter, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.
(b) A representative may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.
(c) In making decisions, a representative may consider general benefit accruing to the living members of the individual's family.
MD
(a) If the court determines that an interest is not represented under this subtitle or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, an incapacitated individual, an unborn individual, or a person whose identity or location is unknown or is not reasonably ascertainable as long as there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute.
(b) A representative may be appointed to represent several persons or interests under this title.
[MISSING UTC(b) AND (c)]
VA
A. If the court determines that an interest is not represented under this chapter, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.
B. A representative may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.
C. In making decisions, a representative may consider general benefit accruing to the living members of the individual's family.
Hide/Show UTC · Hide/Show DC · Hide/Show MD · Hide/Show VA
MD
(a) A settlor may:
(1) Designate one or more persons who may serve as a representative or successor representative of a beneficiary of the trust;
(2) Designate one or more other persons who may designate a representative or successor representative of a beneficiary of the trust; and
(3) Specify the order of priority among two or more persons who are authorized under this title to serve as a representative or successor representative of a beneficiary of the trust.
(b) Notwithstanding subsection (a) of this section, except as provided in § 14.5-303 of this subtitle, a person designated under subsection (a) of this section may not serve as a representative of a beneficiary of a trust if the person serves as a trustee of the same trust.
(c)(1) A representative designated under subsection (a) of this section may be held liable to the beneficiary on whose behalf the representative acts only if:
(I) The representative has undertaken or agreed to represent the beneficiary; and
(II) Subject to paragraph (2) of this subsection, the representative's action or failure to act is proven by clear and convincing evidence to have been in bad faith with respect to the beneficiary.
(2) For purposes of determining liability under paragraph (1)(ii) of this subsection, a representative acts, or fails to act, in bad faith only if:
(I) The action or inaction was the result of intentional wrongdoing by the representative; or
(II) The representative acted, or failed to act, with reckless indifference to the purposes of the trust or the interests of the beneficiary on whose behalf the representative acted.
