Is the Uniform Trust Code’s 5-year ultimate-repose feature even constitutional?

Charles E. Rounds, Jr.

It is settled that even an ultra-contingent equitable interest incident to a trust relationship is a property right, not a mere expectancy. See generally §5.1 of Loring and Rounds: A Trustee’s Handbook (2020) (the contingent equitable property interest versus the expectancy). In a judicial proceeding that could bring about an interference with that right, the beneficiary is entitled under the due process clause of the 14th Amendment to advance notice of the proceeding and an opportunity to be heard. See, e.g., Roth v. Jelley, --- Cal.Rptr.3d ---, 2020 WL 882150 (Cal. Ct. App 2020). As the UTC’s §1005(c) ultimate-repose feature is a piece of state legislation that would cut back certain property-focused notice protections that are generally afforded trust beneficiaries by the 14th Amendment to the U.S. Constitution one may expect that at some point someone whose equitable property rights are adversely affected by the feature will mount a serious challenge to its constitutionality. Recall that UTC §1005(c) provides “some ultimate repose” for actions against a trustee in cases in which the trustee has failed adequately, or even altogether, to report to the beneficiaries. The equitable defense of failure of beneficiary to take timely action against the trustee is covered generally in §7.1.3 of Loring and Rounds: A Trustee’s Handbook (2020), which section is reproduced in its entirety in the Appendix below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Charles E. Rounds, Jr.

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