Del. Code tit. 12 § 3315

Current through 2024 Legislative Session Act Chapter 251
Section 3315 - Trustee's exercise of discretion; review by court; discretionary interests
(a) Where discretion is conferred upon the fiduciary with respect to the exercise of a power, its exercise by the fiduciary shall be considered to be proper unless the court determines that the discretion has been abused within the meaning of § 187 of the Restatement (Second) of Trusts, not §§ 50 and 60 of the Restatement (Third) of Trusts.
(b) A beneficiary eligible to receive distributions from a trust in the discretion of a trustee or other fiduciary has a discretionary interest in the trust. discretionary interest in a trust is a mere expectancy, not a property right.. A beneficiary eligible to receive distributions from a trust in the discretion of a trustee or other fiduciary, even if subject to an ascertainable standard (as defined in Treas. Reg. § 20.2041-1(c)(2) ( 26 CFR § 20.2041-1 (c)(2)) or any successor provision thereto), has a discretionary interest in the trust. An interest that includes mandatory distribution language such as "shall" but is qualified by discretionary distribution language is a discretionary interest. A creditor may not directly or indirectly compel the distribution of a discretionary interest except to the extent expressly granted by the terms of a governing instrument in accordance with §3536(a) of this title. Nothing within this subsection (b) shall be deemed to alter the standard of review of the discretion of the trustee or other fiduciary under subsection (a) of this section.

12 Del. C. § 3315

Amended by Laws 2021, ch. 69,s 2, eff. 6/30/2021.
76 Del. Laws, c. 254, § 7.;