Assembly Bill No. 469–Assemblyman Goldwater

March 10, 1999

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Referred to Committee on Judiciary

 

SUMMARY—Revises provisions concerning spendthrift trusts. (BDR 13-1296)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to trusts; enlarging the class of permitted beneficiaries of a spendthrift trust; enlarging the category of spendthrift trusts to which the law of this state applies; providing a limitation of actions; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. Chapter 166 of NRS is hereby amended by adding thereto a

1-2 new section to read as follows:

1-3 A person may not bring an action with respect to a transfer of property

1-4 to a spendthrift trust:

1-5 1. If he is a creditor when the transfer is made, unless the action is

1-6 commenced within:

1-7 (a) Two years after the transfer is made; or

1-8 (b) Six months after he discovers or reasonably should have

1-9 discovered the transfer,

1-10 whichever is later.

1-11 2. If he becomes a creditor after the transfer is made, unless the

1-12 action is commenced within 2 years after the transfer is made.

1-13 Sec. 2. NRS 166.040 is hereby amended to read as follows:

1-14 166.040 1. Any person competent by law to execute a will or deed

1-15 may, by writing only, duly executed, by will, conveyance or other writing,

1-16 create a spendthrift trust in real, personal or mixed property for [any other

1-17 person or persons.] the benefit of:

1-18 (a) A person other than the settlor;

2-1 (b) The settlor if the writing is irrevocable, does not require that any

2-2 part of the income or principal of the trust be distributed to the settlor,

2-3 and was not intended to hinder, delay or defraud known creditors; or

2-4 (c) Both the settlor and another person if the writing meets the

2-5 requirements of paragraph (b).

2-6 2. For the purposes of this section, a writing:

2-7 (a) Is "irrevocable" even if the settlor may prevent a distribution from

2-8 the trust or holds a testamentary special power of appointment or similar

2-9 power.

2-10 (b) Does not "require" a distribution to the settlor if he may receive it

2-11 only in the discretion of another person.

2-12 Sec. 3. NRS 166.060 is hereby amended to read as follows:

2-13 166.060 1. Unless the writing [shall declare] declares to the contrary,

2-14 expressly, this chapter [shall govern] governs the construction, operation

2-15 and enforcement, in this state, of all spendthrift trusts [wheresoever created,

2-16 when:

2-17 (a) The] created in or outside this state if:

2-18 (a) All or part of the land, rents, issues or profits affected are in this

2-19 state;

2-20 (b) [The] All or part of the personal property, interest of money,

2-21 dividends upon stock and other produce thereof, affected, are in this state;

2-22 [or]

2-23 (c) The declared domicile of the creator of a spendthrift trust affecting

2-24 [such] personal property is in this state [.] ; or

2-25 (d) At least one trustee qualified under subsection 2 has powers that

2-26 include maintaining records and preparing income tax returns for the

2-27 trust, and all or part of the administration of the trust is performed in this

2-28 state.

2-29 2. If the settlor is a beneficiary of the trust, at least one trustee of a

2-30 spendthrift trust must be:

2-31 (a) A natural person who resides and has his domicile in this state;

2-32 (b) A trust company that:

2-33 (1) Is organized under federal law or under the laws of this state or

2-34 another state; and

2-35 (2) Maintains an office in this state for the transaction of business;

2-36 or

2-37 (c) A bank that:

2-38 (1) Is organized under federal law or under the laws of this state or

2-39 another state;

2-40 (2) Maintains an office in this state for the transaction of business;

2-41 and

2-42 (3) Possesses and exercises trust powers.

3-1 3. Except as [stated] otherwise provided in subsection 1, this chapter

3-2 [shall also govern] also governs the construction, operation and

3-3 enforcement, outside of this state, of all spendthrift trusts created in this

3-4 state, except so far as prohibited by valid laws of other states. Unless the

3-5 writing [of trust shall declare] declares to the contrary, expressly, it shall be

3-6 deemed to be made in the light of this chapter and all other acts relating to

3-7 spendthrift trusts enacted in this state.

3-8 Sec. 4. NRS 166.140 is hereby amended to read as follows:

3-9 166.140 A spendthrift trust [shall] may not continue for a period longer

3-10 than [the life or lives of specified persons in being at the time of its creation

3-11 and for 21 years after the death of the survivor of them.] that allowed

3-12 under NRS 111.103 to 111.1039, inclusive. The free alienation of the legal

3-13 estate by the trustee [shall] may not be suspended for a period exceeding

3-14 the limit prescribed in any constitutional or statutory prohibition against

3-15 perpetuities existing in this state or in the state where the lands affected by

3-16 the trust are situate , [;] but a contingent remainder in fee may be created on

3-17 a prior remainder in fee, to take effect [in the event that] if the persons to

3-18 whom the first remainder is limited die under the age of 21 years, or upon

3-19 any other contingency by which the estate of [such] those persons may be

3-20 determined before they attain [their full] that age.

3-21 Sec. 5. NRS 11.190 is hereby amended to read as follows:

3-22 11.190 Except as otherwise provided in NRS 125B.050 and 217.007,

3-23 actions other than those for the recovery of real property, unless further

3-24 limited by specific statute, may only be commenced as follows:

3-25 1. Within 6 years:

3-26 (a) An action upon a judgment or decree of any court of the United

3-27 States, or of any state or territory within the United States, or the renewal

3-28 thereof.

3-29 (b) An action upon a contract, obligation or liability founded upon an

3-30 instrument in writing, except those mentioned in the preceding sections of

3-31 this chapter.

3-32 2. Within 4 years:

3-33 (a) An action on an open account for goods, wares and merchandise sold

3-34 and delivered.

3-35 (b) An action for any article charged on an account in a store.

3-36 (c) An action upon a contract, obligation or liability not founded upon

3-37 an instrument in writing.

3-38 3. Within 3 years:

3-39 (a) An action upon a liability created by statute, other than a penalty or

3-40 forfeiture.

3-41 (b) An action for waste or trespass of real property, but when the waste

3-42 or trespass is committed by means of underground works upon any mining

4-1 claim, the cause of action shall be deemed to accrue upon the discovery by

4-2 the aggrieved party of the facts constituting the waste or trespass.

4-3 (c) An action for taking, detaining or injuring personal property,

4-4 including actions for specific recovery thereof, but in all cases where the

4-5 subject of the action is a domestic animal usually included in the term

4-6 "livestock," which has a recorded mark or brand upon it at the time of its

4-7 loss, and which strays or is stolen from the true owner without his fault, the

4-8 statute does not begin to run against an action for the recovery of the

4-9 animal until the owner has actual knowledge of such facts as would put a

4-10 reasonable person upon inquiry as to the possession thereof by the

4-11 defendant.

4-12 (d) Except as otherwise provided in NRS 112.230 [,] and section 1 of

4-13 this act, an action for relief on the ground of fraud or mistake, but the cause

4-14 of action in such a case shall be deemed to accrue upon the discovery by

4-15 the aggrieved party of the facts constituting the fraud or mistake.

4-16 (e) An action pursuant to NRS 40.750 for damages sustained by a

4-17 financial institution because of its reliance on certain fraudulent conduct of

4-18 a borrower, but the cause of action in such a case shall be deemed to accrue

4-19 upon the discovery by the financial institution of the facts constituting the

4-20 concealment or false statement.

4-21 4. Within 2 years:

4-22 (a) An action against a sheriff, coroner or constable upon liability

4-23 incurred by acting in his official capacity and in virtue of his office, or by

4-24 the omission of an official duty, including the nonpayment of money

4-25 collected upon an execution.

4-26 (b) An action upon a statute for a penalty or forfeiture, where the action

4-27 is given to a person or the state, or both, except when the statute imposing

4-28 it prescribes a different limitation.

4-29 (c) An action for libel, slander, assault, battery, false imprisonment or

4-30 seduction.

4-31 (d) An action against a sheriff or other officer for the escape of a

4-32 prisoner arrested or imprisoned on civil process.

4-33 (e) Except as otherwise provided in NRS 11.215, an action to recover

4-34 damages for injuries to a person or for the death of a person caused by the

4-35 wrongful act or neglect of another. The provisions of this paragraph

4-36 relating to an action to recover damages for injuries to a person apply only

4-37 to causes of action which accrue after March 20, 1951.

4-38 5. Within 1 year:

4-39 (a) An action against an officer, or officer de facto to recover goods,

4-40 wares, merchandise or other property seized by the officer in his official

4-41 capacity, as tax collector, or to recover the price or value of goods, wares,

4-42 merchandise or other personal property so seized, or for damages for the

4-43 seizure, detention or sale of, or injury to, goods, wares, merchandise or

5-1 other personal property seized, or for damages done to any person or

5-2 property in making the seizure.

5-3 (b) An action against an officer, or officer de facto for money paid to the

5-4 officer under protest, or seized by the officer in his official capacity, as a

5-5 collector of taxes, and which, it is claimed, ought to be refunded.

5-6 Sec. 6. NRS 112.230 is hereby amended to read as follows:

5-7 112.230 [A] Except as otherwise provided in section 1 of this act, a

5-8 claim for relief with respect to a fraudulent transfer or obligation under this

5-9 chapter is extinguished unless action is brought:

5-10 1. Under paragraph (a) of subsection 1 of NRS 112.180, within 4 years

5-11 after the transfer was made or the obligation was incurred or, if later, within

5-12 1 year after the transfer or obligation was or could reasonably have been

5-13 discovered by the claimant;

5-14 2. Under paragraph (b) of subsection 1 of NRS 112.180 or subsection

5-15 1 of NRS 112.190, within 4 years after the transfer was made or the

5-16 obligation was incurred; or

5-17 3. Under subsection 2 of NRS 112.190, within 1 year after the transfer

5-18 was made or the obligation was incurred.

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