GEC C.S.H.B. 2039 75(R)    BILL ANALYSIS


BUSINESS & INDUSTRY
C.S.H.B. 2039
By: Smith
4-21-97
Committee Report (Substituted)



BACKGROUND 

Current Trust Fund law has a provision which, for the most part,
represents a very sensible means of settling a Trust when the following
conditions exist:   1.)  the Beneficiary of a Trust is dead; 2.) the
charity named in the trust is no longer is existence; and 3.) the Settlor
of the trust is also dead.  In this case, the state directs the Attorney
General to select a new charity to receive the Funds of the Trust.  

However, if the Settlor is alive when the Beneficiary dies and the charity
selected has become defunct, the same law is applied with no regard to the
Settlor's desires.  If the Settlor wished to now pick a new charity, they
have no ability to do so.  The attorney general will pick a similar
charity for them. 

PURPOSE

As proposed, HB 2039 would give the trustee of a trust the power to name a
replacement charity and provides that the trustee shall attempt to consult
with the Settlor, if living, concerning the Settlor's wishes and shall
consider the Settlor's wishes before naming a replacement charitable
beneficiary.  

As well, the bill would apply to the circumstances that occur when a
charity designated as the recipient of a trust's funds cease to be a
"charitable" trust during the term of the trust. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends  Section 113.026 of the Property Code by adding the
following Subsections: 

Subsection (a) provides a statutory definition of both a "Charitable
entity" and a "Failed charitable entity". 

Subsection (b) states that a trustee can, without obtaining judicial
approval, select a replacement charitable beneficiary if the original
beneficiary falls under the definition of a "failed charitable entity". 

Subsection (c) states that if a Settlor is alive at the time that the
originally stated beneficiary becomes a "failed charitable entity", then
the trustee shall consult with the Settlor concerning the Settlor's
recommendation before naming a replacement beneficiary. 

Subsection (d) states that if the Settlor is alive and the trustee chooses
the replacement beneficiary recommended by the Settlor, then the new
beneficiary does not have to have the same or similar charitable purpose
as the original trust and that the Attorney General's office does not have
to be notified. 
 
However, in all other cases, the trustee's selection must be a beneficiary
with a same or similar purpose as the failed entity, and the Attorney
General's office must be given notice. 

SECTION 2.  Specifies that this bill applies to existing trusts as well as
to trusts created after the effective date. 

SECTION 3.  Emergency Clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute bill gives the trustee, not the settlor, the power to name
a replacement charity. While the settlor is living, the trustee must
attempt to consult with the settlor and, if the trustee follows the
settlor's recommendation, the replacement charitable beneficiary does not
have to have the same charitable purpose and no notice to the attorney
general is required.  If the settlor is dead, however, or if the trustee
does not follow the settlor's recommendation, then the trustee may name
the replacement charitable beneficiary without judicial interference, but
the the trustee must pick a replacement entity with the same or similar
purpose of the charity being replaced; and the trustee must notify the
attorney general.