New Mexico § 46-12-107 - Notice; exercise of decanting power

§ 46-12-107. Notice; exercise of decanting power

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 power without the consent of any person and without

court approval. C. Except as otherwise provided in Subsection F of this section, an authorized fiduciary

shall give notice in a record of the intended exercise of the decanting power not

later than sixty days before the exercise to: (1) each settlor of the first trust, if living or then in existence; (2) each qualified beneficiary of the first trust; (3) each holder of a presently exercisable power of appointment over any part or all

of the first trust; (4) each person that currently has the right to remove or replace the authorized fiduciary; (5) each other fiduciary of the first trust; (6) each fiduciary of the second trust; and (7) the attorney general, if Subsection B of Section 1-114 of the Uniform Trust Decanting

Act applies. D. An authorized fiduciary is not required to give notice under Subsection C of this

section to a person that is not known to the fiduciary or is known to the fiduciary

but cannot be located by the fiduciary after reasonable diligence. E. A notice given under Subsection C of this section shall: (1) specify the manner in which the authorized fiduciary intends to exercise the decanting

power; (2) specify the proposed effective date for exercise of the power; (3) include a copy of the first-trust instrument; and (4) include a copy of all second-trust instruments. F. The decanting power may be exercised before expiration of the notice period specified

in Subsection A of this section if all persons entitled to receive notice waive the

period in a signed record. G. The receipt of notice, waiver of the notice period or expiration of the notice

period does not affect the right of a person to file an application under Section

1-109 of the Uniform Trust Decanting Act asserting that: (1) an attempted exercise of the decanting power is ineffective because it did not

comply with the Uniform Trust Decanting Act or was an abuse of discretion or breach

of fiduciary duty; or (2) Section 1-122 of the Uniform Trust Decanting Act applies to the exercise of the

decanting power. H. An exercise of the decanting power is not ineffective because of the failure to

give notice to one or more persons under Subsection C of this section if the authorized

fiduciary acted with reasonable care to comply with that subsection.