Colorado § 15-5-814 - Discretionary powers - tax savings.

§ 15-5-814. Discretionary powers - tax savings.

(1) (a) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute", "sole", or "uncontrolled", the trustee shall exercise a discretionary power in good faith. The parameters for that exercise are established by the terms and purposes of the trust, the interests of the beneficiaries, and relevant fiduciary duties. A trustee does not abuse its discretion if the trustee, following the terms and purposes of the trust and considering the interests of its beneficiaries, exercises its judgment honestly and with a proper motive.

(b) Where a trust gives a trustee unlimited discretion, including the use of such terms as "absolute", "sole", or "uncontrolled", a court may not determine that a trustee abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.

(2) Subject to subsection (4) of this section, and unless the terms of the trust expressly indicate that a rule in this subsection (2) does not apply:

(a) A person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and

(b) A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.

(3) A power whose exercise is limited or prohibited by subsection (2) of this section may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.

(4) Subsection (2) of this section does not apply to:

(a) A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in section 2056 (b)(5) or 2523 (e) of the federal "Internal Revenue Code of 1986", as amended, was previously allowed;

(b) Any trust during any period that the trust may be revoked or amended by its settlor; or

(c) A trust, if contributions to the trust qualify for the annual exclusion under section 2503 (c) of the federal "Internal Revenue Code of 1986", as amended.

Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1177, § 1, effective January 1, 2019.