Section 11.98A.030. Statutory trust advisor.

(1) As used in this chapter, "statutory trust advisor" means one or more persons as the context requires, including, without limitation, a trust advisor, special trustee, trust protector, or committee, who, under the terms of the governing instrument, is expressly made subject to the provisions of this chapter, and who has a power or duty to direct, consent to, or disapprove an action, or has a power or duty that would normally be required of a trustee. The powers and duties granted to a statutory trust advisor under the governing instrument may include but are not limited to:

(a) The power to direct the acquisition, management, disposition, or retention of any trust investment;

(b) The power to direct a trustee to make or withhold distributions to beneficiaries;

(c) The power to consent to a trustee's action or inaction relating to investments of trust assets;

(d) The power to consent to a trustee's action or inaction in making distributions to beneficiaries;

(e) The power to increase or decrease any interest of any beneficiary in the trust, to grant a power of appointment to one or more trust beneficiaries, or to terminate or amend any power of appointment granted in the trust. However, a modification, amendment, or grant of a power of appointment may not:

(i) Grant a beneficial interest in a charitable trust with only charitable beneficiaries to any noncharitable interest or purpose; or

(ii) Unless the governing instrument provides otherwise, expressly or impliedly grant any power that would cause all or any portion of the trust estate to be includible in the gross estate of the trustor, trustee, statutory trust advisor, or any trust beneficiary for estate tax purposes;

(f) The power to modify or amend the governing instrument to achieve favorable tax status or respond to changes in any applicable federal, state, or other tax law affecting the trust, including, without limitation, any rulings, regulations, or other guidance implementing or interpreting such laws;

(g) The power to modify or amend the governing instrument to take advantage of changes in (i) the rule against perpetuities, (ii) laws governing restraints on alienation, or (iii) other state laws restricting the terms of the trust, the distribution of trust property, or the administration of the trust;

(h) The power to appoint a successor trustee, trust advisor, or statutory trust advisor;

(i) The power to change the governing law or principal place of administration of the trust; and

(j) The power to remove a trustee, trust advisor, or statutory trust advisor for the reasons stated in the governing instrument.

(2) Unless provided otherwise in the governing instrument, the exercise of a power by a statutory trust advisor shall be exercised in the sole and absolute discretion of the statutory trust advisor and shall be binding on all other persons.

(3) Any of the powers enumerated in subsection (1) of this section, as they exist at the time of the signing of the governing instrument, may, by appropriate reference made thereto, be incorporated in whole or in part in such instrument, by a clearly expressed intention in the governing instrument.

(4)(a) In exercising any power or refraining from exercising any power granted to such statutory trust advisor in the governing instrument, a statutory trust advisor shall have a fiduciary duty with respect to each power to act in accordance with the terms and purposes of the trust and solely in the interests of the beneficiaries.

(b) Notwithstanding (a) of this subsection, a statutory trust advisor who has accepted appointment and holds any of the powers enumerated in subsection (1)(c) through (j) of this section has no duty to monitor the administration of the trust to determine whether that power should be exercised except upon request of the trustee or a qualified beneficiary under chapter 11.98 RCW, or unless otherwise provided under the governing instrument. The extent of the duty of a statutory trust advisor to monitor the administration of the trust to determine if any other power granted to the statutory trust advisor should be exercised will be determined based upon the scope and nature of the power under the governing instrument and the then existing circumstances of the trust. In no event may the governing instrument relieve the statutory trust advisor from the fiduciary duty described in this subsection or relieve the statutory trust advisor from the duty to act in good faith and with honest judgment.

(5) A statutory trust advisor may accept appointment by written notice to the trustee, by taking affirmative action to exercise powers or perform duties granted to the statutory trust advisor or by any other means provided in the governing instrument. 

(6) Unless otherwise provided in the governing instrument, whenever any power is jointly granted to more than one statutory trust advisor, RCW 11.98.016 applies to the exercise of powers by the statutory trust advisors.

(7) A statutory trust advisor is entitled to the same protection from liability provided to a directed trustee under RCW 11.98A.100(2) with respect to each power, duty, or function granted or reserved exclusively to the trustee or any one or more other statutory trust advisors.

(8) A statutory trust advisor may at any time decline to serve or resign as statutory trust advisor by written notice to the then serving trustee of the trust, unless another procedure is prescribed by the governing instrument.

(9) Except as otherwise provided in the governing instrument, a statutory trust advisor is entitled to reasonable compensation considering all circumstances including the time, effort, skill, and responsibility involved in the performance of services by the statutory trust advisor.

[ 2015 c 115 § 6.]

2015 c 115 § 6.