June 9, 2004 - Update to Trust & Estate Materials
ANNUAL COLORADO LEGISLATIVE UPDATE
TRUST AND ESTATES
Update to Materials Provided on June 9, 2004
I. Authorization for Bank to Use a Certificate of Trust (HB 04-1226)
A. HB 04-1226 adds C.R.S. § 11-105-111 to the Colorado Banking Code.
B. Under C.R.S. § 11-105-111(1), a trustee wishing to open a deposit account for a trust with a bank may provide the bank with a certificate of trust to evidence the trust relationship.
C. C.R.S. § 11-105-111(1) provides that the certificate of trust shall be an affidavit, executed by any trustee, including the following:
1. the name of the trust;
2. the effective date of the trust;
3. the name and address of each trustee;
4. the name of each known successor trustee;
5. a statement that the trustee has authority or that the trustees have authority to open the account on behalf of the trust; and
6. any other information that may be required by the bank, including an indemnification that is acceptable to the bank.
D. If the bank decides to accept a certificate of trust, the bank may administer the account in accordance with the certificate of trust without requiring receipt of a copy of the written trust agreement. See C.R.S. § 11-105-111(2).
E. A bank is not obligated to establish a deposit account for a trustee who refuses to furnish the bank with a copy of a written trust agreement. See C.R.S. § 11-105-111(5).
F. If the bank decides to accept a certificate of trust and all of the named trustees and successor trustees noted in the certificate of trust die, resign, or become incompetent, C.R.S. § 11-105-111(3) provides that the bank may withhold disposition of any funds on deposit in the account until receipt of one of the following:
1. a court order directing the disposition of the funds;
2. a newly executed certificate of trust from a person acting or purporting to act as a newly appointed successor trustee; or
3. other documentation that establishes to the satisfaction of the bank the manner in which the funds are to be administered or distributed.
G. If a bank accepts a certificate of trust executed pursuant to C.R.S. § 11-105-111, the bank will not be liable for administering the account as provided in the certificate of trust, even if the certificate of trust is contrary to the terms of the written trust agreement, unless the bank has actual knowledge that the terms of the trust agreement are contrary to the terms of the certificate of trust. See C.R.S. § 11-105-111(4).
H. The effective date of the Act is July 1, 2004.
II. Anatomical Gifts (SB 04-178)
A. One of the methods by which an individual may make an anatomical gift under C.R.S. § 12-34-105 is by driver’s license or identification card.
B. SB 04-178 amends C.R.S. § 12-34-105 to remove the requirement in C.R.S. § 12-34-105(5)(a) that the Department of Revenue include information about an intended anatomical gift, to be signed by the donor, on the back of each driver’s license and identification card. Instead, the Department of Revenue is directed to include the contact information for the organ and tissue donor registry created pursuant to C.R.S. § 12-34-110. See C.R.S. § 12-34-105(5)(d).
C. In addition, SB 04-178 amends C.R.S. § 12-34-107(4) to provide that a donor wishing to amend an anatomical gift may remove his or her name from the organ and tissue donor registry created under C.R.S. § 12-34-110 by notifying the federally designated organ procurement agency of his or her decision to be removed from the registry.
D. After being issued a driver’s license or identification card, a person may at a later date become an anatomical donor by notifying the federally designated organ procurement agency of the desire to become an anatomical donor for the purpose of adding the person’s name to the organ and tissue donor registry created under C.R.S. § 12-34-110. See C.R.S. § 12-34-107(5).
E. The effective date of the Act is August 4, 2004.
Louisa M. Ritsick
Moser and Silver LLP
600 South Cherry Street, Suite 715
Denver, Colorado 80246