HOUSE BILL 183
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Zachary J. Cook
AN ACT
RELATING TO PROPERTY; REVISING THE STATUTORY RULE AGAINST PERPETUITIES AS IT AFFECTS PROPERTY INTERESTS, INCLUDING REAL PROPERTY INTERESTS, HELD IN TRUST.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 45-2-904 NMSA 1978 (being Laws 1992, Chapter 66, Section 4, as amended) is amended to read:
"45-2-904. EXCLUSIONS--REAL PROPERTY HELD IN TRUST.--
A. The provisions of Section 45-2-901 NMSA 1978 [does] do not apply to:
[A.] (1) a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
[(1)] (a) a premarital or postmarital agreement;
[(2)] (b) a separation or divorce settlement;
[(3)] (c) a spouse's election;
[(4)] (d) a similar arrangement arising out of a prospective, existing or previous marital relationship between the parties;
[(5)] (e) a contract to make or not to revoke a will or trust;
[(6)] (f) a contract to exercise or not to exercise a power of appointment;
[(7)] (g) a transfer in satisfaction of a duty of support; or
[(8)] (h) a reciprocal transfer;
[B.] (2) a fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease or mortgage property and the power of a fiduciary to determine principal and income;
[C.] (3) a power to appoint a fiduciary;
[D.] (4) a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
[E.] (5) a nonvested property interest held by a charity, government or governmental agency or subdivision if the nonvested property interest is preceded by an interest held by another charity, government or governmental agency or subdivision;
[F.] (6) a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral or other current or deferred benefit plan for one or more employees, independent contractors or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse;
[G.] (7) a property interest, power of appointment or arrangement that was not subject to the common-law rule against perpetuities or that is excluded by another statute of New Mexico; [or
H.] (8) a property interest or arrangement subject to a time limit under the provisions of Section 45-2-907 NMSA 1978; or
(9) a property interest held in trust.
B. For real property held in trust, at the end of three hundred sixty-five years from the later of the date on which an interest in real property is added to or purchased by a trust or the date that the trust became irrevocable, if the interest in real property is still held in trust and if the trust instrument:
(1) provides for the distribution of the interest upon termination of the trust, the property shall be distributed as though termination occurred at that time;
(2) does not provide for the distribution of the interest upon termination of the trust, the property shall be distributed to the beneficiaries who are then entitled to receive income from the trust:
(a) in proportion to the amount of income each is entitled to receive; or
(b) if that proportion is not specified in the trust instrument, in equal shares; or
(3) does not provide for the distribution of the interest upon termination of the trust and there is no income beneficiary of the trust, the property shall be distributed, pursuant to the laws of New Mexico then in effect that govern the distribution of interstate real property, to the then-living persons who are then determined to be the settlor's or testator's distributees as though the settlor or testator had died at that time, intestate, a resident of New Mexico and owning the property so distributable. For the purposes of this paragraph, "settlor" means a person who creates or contributes property to a trust.
C. A trust shall not become void or subject to termination pursuant to the provisions of this section or Section 45-2-901 NMSA 1978 if:
(1) a trust holds an interest in a corporation, a limited liability company, a partnership, a statutory trust, a business trust or another corporate entity;
(2) the entity is the owner of an interest in real property;
(3) the entity terminates; and
(4) the trust becomes the holder of an interest in real property.
D. Except as otherwise provided in the trust instrument, the trustee of a trust that becomes the holder of an interest in real property through the sequence outlined in Subsection C of this section may:
(1) distribute the interest in real property in accordance with the provisions of this subsection; or
(2) convey the interest in real property to another corporate entity in exchange for an interest in that entity to be held by the trustee.
E. For the purposes of this section, "real property" does not include:
(1) intangible personal property; or
(2) an interest in a corporation, a limited liability company, a partnership, a statutory trust, a business trust or another corporate entity, regardless of whether the entity is the owner of an interest in real property."
SECTION 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.
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