Delaware § 3327A - Appointment of an officeholder [For application of this section, see 79 Del. Laws, c. 172, § 6].

§ 3327A. Appointment of an officeholder [For application of this section, see 79 Del. Laws, c. 172, § 6].

(a) If a trust’s governing instrument does not include a provision that effectively can be used to appoint a successor officeholder, an officeholder or successor officeholder may be appointed as provided under this section when the trust does not have a serving officeholder in a given position for any reason, including the following:

(1) Due to the death, incapacity, removal, or resignation of the last serving officeholder in that position.

(2) Due to the renunciation or declination of the last named officeholder in that position of its appointment as such.

(3) Due to the declination to appoint a successor officeholder by the holder or holders of the power to so appoint.

(b) Except as otherwise provided in a governing instrument, when the trust instrument expressly requires an officeholder to be appointed or when a trust has no trustee, the holder or holders of the power to appoint the successor trustee or other officeholder are deemed to have declined to do so if the holder or holders have not appointed a successor trustee or other officeholder within 60 days of being notified of the corresponding vacancy.

(c) If the only remaining dispositive provisions of the governing instrument then require distribution of the remaining property of the trust to 1 or more beneficiaries (whether outright, or to 1 or more other trusts which do have a serving trustee), the taking beneficiaries of the trust, by unanimous consent, may name a successor trustee or other officeholder of the trust without the approval of the Court of Chancery. For purposes of this subsection, the person entitled to consent on behalf of a beneficiary that is another trust that has a serving trustee is the trustee or trustees of the other trust.

(d) If subsection (c) of this section does not apply, the current permissible beneficiaries and presumptive remainder beneficiaries of the trust, by unanimous consent, may name a successor trustee or other officeholder of the trust, subject to any conditions under the governing instrument with respect to such appointee, without the approval of the Court of Chancery.

(e) For purposes of subsections (c) and (d) of this section, unanimous consent may be achieved via representation by 1 or more designated representatives under § 3339 of this title or by 1 or more virtual representatives under § 3547 of this title.

(f) Except when a trustee vacancy is required by law to be filled, nothing in this section is to be construed to require a vacancy of a trustee or other officeholder to be filled when not expressly required by the governing instrument.

(g) Nothing in this section is to be construed to limit the appointment of a trustee or other officeholder by a modification of a trust under § 3342 of this title or by a nonjudicial settlement agreement under § 3338 of this title.

79 Del. Laws, c. 172, §  2;  81 Del. Laws, c. 149, § 1;  85 Del. Laws, c. 383, § 4;