CHAPTER 615
STATUTORY TRUSTS

Table of Contents

Sec. 34-501. Definitions.
Sec. 34-503. Certificate of trust. Filing of documents.
Sec. 34-531. Registration with Secretary of the State.

      Sec. 34-501. Definitions. For purposes of sections 34-500 to 34-547, inclusive:

      (1) "Beneficial owner" means any owner of a beneficial interest in a statutory trust. Beneficial ownership shall be determined and evidenced, whether by means of registration, the issuance of certificates or otherwise, in accordance with the applicable provisions of the governing instrument of the statutory trust.

      (2) "Statutory trust" or "domestic statutory trust" means an unincorporated association which (A) is created by a trust instrument under which property is or will be held, managed, administered, controlled, invested, reinvested or operated, or business or professional activities are carried on or will be carried on, by a trustee or trustees for the benefit of such person or persons as are or may become entitled to a beneficial interest in the trust property, including but not limited to a trust of the type known at common law as a "business trust" or "Massachusetts trust" or "grantor trust", or a trust qualifying as a real estate investment trust under Section 856 et seq., of the United States Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, or a trust qualifying as a real estate mortgage investment conduit under Section 860D of the United States Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, and (B) files a certificate of trust pursuant to section 34-503. Any such association organized before or after October 1, 1997, shall be a statutory trust and a separate legal entity.

      (3) "Document" includes anything delivered to the office of the Secretary of the State for filing under sections 34-500 to 34-547, inclusive.

      (4) "Foreign statutory trust" means any business trust, association or similar entity which is not organized under the laws of this state.

      (5) "Governing instrument" means a trust instrument which creates a statutory trust and provides for the governance of the affairs of the statutory trust and the conduct of its business. A governing instrument: (A) May provide that a person shall become a beneficial owner and shall become bound by the governing instrument if such person, or a representative authorized by such person orally, in writing or by other action such as payment for a beneficial interest, complies with the conditions for becoming a beneficial owner set forth in the governing instrument or any other writing and acquires a beneficial interest; and (B) may consist of one or more agreements, instruments or other writings and may refer to or incorporate bylaws containing provisions relating to the business of the statutory trust, the conduct of its affairs and its rights or powers or the rights or powers of its trustees, beneficial owners, agents or employees.

      (6) "Other business entity" means a corporation, a limited liability company, a general or limited partnership, a limited liability partnership, a common law trust or any other unincorporated business.

      (7) "Person" means a natural person, partnership, limited partnership, limited liability partnership, limited liability company, trust, estate, association, corporation, custodian, nominee or any other individual or entity in its own or any representative capacity.

      (8) "Sign" or "signature" includes any manual, facsimile, conformed or electronic signature.

      (9) "Trustee" means the person or persons appointed as a trustee in accordance with the governing instrument of a statutory trust and may include one or more of the beneficial owners of the statutory trust.

      (P.A. 96-271, S. 221, 254; P.A. 98-137, S. 31, 62; 98-219, S. 33, 34; P.A. 11-146, S. 17.)

      History: P.A. 96-271 effective October 1, 1997; P.A. 98-137 amended definition of "statutory trust" to delete provision re the purposes for which a statutory trust may be organized, said provision being reenacted as Sec. 34-502a by same public act, effective July 1, 1998; P.A. 98-219 revised effective date of P.A. 98-137, but without affecting this section; P.A. 11-146 added new Subdiv. (3) defining "document", redesignated existing Subdivs. (3) to (6) as Subdivs. (4) to (7), added new Subdiv. (8) defining "sign" or "signature" and redesignated existing Subdiv. (7) as Subdiv. (9), effective January 1, 2012.

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      Sec. 34-503. Certificate of trust. Filing of documents. (a) Every statutory trust shall file a signed copy of its certificate of trust with the office of the Secretary of the State. The certificate of trust shall set forth:

      (1) A name of the statutory trust that satisfies the requirements of section 34-506;

      (2) The future effective date, which shall be a date certain, of effectiveness of the certificate if it is not to be effective upon the filing of the certificate;

      (3) The principal office address of the statutory trust;

      (4) The appointment of a statutory agent for service of process, as required by section 34-507; and

      (5) Any other information the trustees determine to include therein.

      (b) (1) A certificate of trust may be amended by filing a certificate of amendment thereto with the office of the Secretary of the State. The certificate of amendment shall set forth: (A) The name of the statutory trust; (B) the date of filing of the initial certificate of trust; (C) the amendment to the certificate; and (D) the future effective date, which shall be a date certain, of effectiveness of the certificate if it is not to be effective upon the filing of the certificate.

      (2) A certificate of trust may be amended at any time for any purpose as the trustees may determine, provided the certificate of trust as amended contains those provisions that are required by law to be contained in a certificate of trust at the time of making the amendment.

      (c) (1) A certificate of trust may be restated by integrating into a single instrument all of the provisions of the certificate of trust which are then in effect and operative as a result of there having been theretofore filed one or more certificates of amendment pursuant to subsection (b) of this section, and the certificate of trust may be amended or further amended by the filing of a restated certificate of trust. The restated certificate of trust shall be specifically designated as such in its heading and shall set forth: (A) The present name of the statutory trust and, if it has been changed, the name under which the statutory trust was originally formed; (B) the date of filing of the initial certificate of trust; (C) the information required to be included pursuant to subsection (a) of this section; (D) the future effective date, which shall be a date certain, of effectiveness of the restated certificate of trust if it is not to be effective upon the filing of the restated certificate of trust; and (E) any other information the trustees determine to include therein.

      (2) A certificate of trust may be restated at any time for any purpose as the trustees may determine.

      (d) A certificate of trust shall be cancelled upon the completion of winding up of the statutory trust and its termination. A certificate of cancellation shall be filed in the office of the Secretary of the State and set forth: (1) The name of the statutory trust; (2) the date of filing of the initial certificate of trust; (3) the reason for filing the certificate of cancellation; (4) the future effective date, which shall be a date certain, of cancellation if it is not to be effective upon the filing of the certificate; and (5) any other information the trustees determine to include therein.

      (e) When any document is required or permitted to be filed or recorded as provided in sections 34-500 to 34-547, inclusive, the Secretary of the State may, in the Secretary of the State's discretion, for good cause, permit a photostatic or other photographic copy of such document to be filed or recorded in lieu of the original instrument. Such filing or recording shall have the same force and effect as if the original instrument had been so filed or recorded.

      (f) Unless the office of the Secretary of the State determines that a document filed with it pursuant to this section does not conform to law, it shall, when all required filing fees have been paid, endorse on each signed document the word "Filed" and the date and time of its acceptance for filing and retain the signed document in its files.

      (P.A. 96-271, S. 230, 254; P.A. 11-146, S. 18.)

      History: P.A. 96-271 effective October 1, 1997; P.A. 11-146 amended Subsec. (a) to replace "the original, signed copy" with "a signed copy", amended Subsecs. (b)(1)(B), (c)(1)(B) and (d)(2) to replace "original" with "initial", added new Subsec. (e) re authority of Secretary of the State for good cause to permit filing or recording of a photostatic or other photographic copy of a document in lieu of original instrument and effect thereof, and redesignated existing Subsec. (e) as Subsec. (f) and amended same to replace "signed original of such document" with "signed document" and replace "the original" with "the signed document", effective January 1, 2012.

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      Sec. 34-531. Registration with Secretary of the State. Before transacting business in this state, a foreign statutory trust shall register with the Secretary of the State. In order to register, a foreign statutory trust shall submit to the Secretary of the State a signed copy of an application for registration as a foreign statutory trust executed by a person with authority to do so under the laws of the state or other jurisdiction of its formation. The application shall set forth: (1) The name of the foreign statutory trust and, if different, the name under which it proposes to transact business in this state; (2) the state or other jurisdiction where formed, and date of its organization; (3) the name and address of the agent in this state for service of process on the foreign statutory trust required to be maintained by section 34-532 and an acceptance of such appointment signed by the agent appointed if other than the Secretary of the State; (4) the address of the office required to be maintained in the state or other jurisdiction of its organization by the laws of that state or jurisdiction or, if not so required, of the principal office of the foreign statutory trust; (5) a representation that the foreign statutory trust is a "foreign statutory trust" as defined in section 34-501; and (6) the character of the business which the statutory trust intends to transact in this state.

      (P.A. 96-271, S. 239, 254; P.A. 11-146, S. 21.)

      History: P.A. 96-271 effective October 1, 1997; P.A. 11-146 replaced "an original signed copy" with "a signed copy" and, in Subdiv. (5), made a technical change in statutory reference, effective January 1, 2012.

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