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Delaware statutory trustsWhat is a Delaware Statutory Trust? | Harvard Business Services - Structure & Fees
For those that would like to learn more about trusts. This article provides general commentary on, and analysis of, the subject addressed. We strongly advise that you consult an attorney or tax professional to receive legal or tax guidance tailored to your specific circumstances. Any action taken or not taken based on this article is at your own risk. If an article cites or provides a link to third-party sources or websites, Harvard Business Services, Inc.
Opinions expressed in this article do not necessarily reflect those of Harvard Business Services, Inc. I will like to have DST who can I hire a lawyer to do this for me please call me at. To setup a Delaware Statutory Trust it will need to be done through an Attorney. We are glad you found our article helpful. Rick, this question would be better suited for an accountant, as we are unable to give you a definite answer or offer any accounting advice.
Feel free to contact us by phone, email or live chat if you have additional questions. When it comes to trusts, obtaining a Federal Tax ID often makes it easier to file taxes, manage assets and conduct various financial transactions.
I am from Melbourne, Australia but I lived in Texas for many years in a marriage situation. I would like to have more information on a Delaware Trust document that is operative now. Do you know of an experienced lawyer who could answer some questions with remuneration for me please? I would be most grateful. Libby, unfortunately we are not able to recommend a lawyer to you.
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Monday, January 23, The certificate shall include such information last provided to the registered agent pursuant to subsection k of this section for a communications contact for the statutory trust. Such information regarding the communications contact shall not be deemed public. A certificate filed pursuant to this subsection must be on the form prescribed by the Secretary of State.
After receipt of the notice of the resignation of its registered agent, each statutory trust for which such registered agent was maintaining a registered office and registered agent in this State under subsection b of this section shall obtain and designate a new registered agent, to take the place of the registered agent so resigning, or shall appoint a trustee meeting the requirements of subsection a of this section.
Maintain a principal residence or a principal place of business in the State of Delaware;. Be generally present at a designated location within the State of Delaware during normal business hours to accept service of process and otherwise perform the functions of a registered agent as specified in subsection i of this section;.
Provide the Secretary of State upon request with such information identifying and enabling communication with such commercial registered agent as the Secretary of State shall require; and. Have a business office within the State of Delaware which is generally open during normal business hours to accept service of process and otherwise perform the functions of a registered agent as specified in subsection i of this section;. Have generally present at such office during normal business hours an officer, director or managing agent who is a natural person;.
Such person shall be deemed the communications contact for the statutory trust or foreign statutory trust.
Every registered agent shall retain in paper or electronic form the above information concerning the current communications contact for each statutory trust and each foreign statutory trust for which that registered agent serves as registered agent. If the statutory trust or foreign statutory trust fails to provide the registered agent with a current communications contact, the registered agent may resign as the registered agent for such statutory trust or foreign statutory trust pursuant to this section.
The person serving as a registered agent, or any person who is an officer, director or managing agent of an entity registered agent, has been convicted of a felony or any crime which includes an element of dishonesty or fraud or involves moral turpitude; or. The registered agent has engaged in conduct in connection with acting as a registered agent that is intended to or likely to deceive or defraud the public. Any person who, on or after January 1, , serves as an officer, director or managing agent of an entity acting as a registered agent in the State of Delaware shall be deemed thereby to have consented to the appointment of such registered agent as agent upon whom service of process may be made in any action brought pursuant to this section, and service as an officer, director or managing agent of an entity acting as a registered agent in the State of Delaware shall be a signification of the consent of such person that any process when so served shall be of the same legal force and validity as if served upon such person within the State of Delaware, and such appointment of the registered agent shall be irrevocable.
That has specified the address of a place of business in a record of the Secretary of State, to the address specified, or. If such a statutory trust fails to obtain and designate a new registered agent within 30 days after such notice is given, the certificate of trust of such statutory trust shall be canceled. If such a foreign statutory trust fails to obtain and designate a new registered agent within 30 days after such notice is given, such foreign statutory trust shall not be permitted to do business in the State of Delaware and its registration shall be canceled.
There shall be included in or attached to such certificate a list of the names and file numbers of each affected statutory trust.
The provisions of this section shall not be construed to limit the accomplishment of a revocation of dissolution by other means permitted by law. If there are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment shall be made in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority and, among claims and obligations of equal priority, ratably to the extent of assets available therefor.
Unless otherwise provided in the governing instrument of a statutory trust, any remaining assets shall be distributed to the beneficial owners. Except to the extent otherwise provided in the governing instrument of a statutory trust, the death, incapacity, dissolution, termination or bankruptcy of a beneficial owner or a trustee of such series shall not result in the termination or dissolution of such series and such series may not be terminated or revoked by a beneficial owner of such series or other person except in accordance with the terms of the governing instrument of the statutory trust.
Except to the extent otherwise provided in the governing instrument of a statutory trust or in this subchapter, the laws of this State pertaining to trusts are hereby made applicable to statutory trusts; provided however, that for purposes of any tax imposed by this State or any instrumentality, agency or political subdivision of this State a statutory trust shall be classified as a corporation, an association, a partnership, a trust or otherwise, as shall be determined under the United States Internal Revenue Code of [26 U.
The certificate of trust shall set forth:. The future effective date or time which shall be a date or time certain of effectiveness of the certificate if it is not to be effective upon the filing of the certificate; and. A statutory trust formed under this chapter, unless otherwise provided in its certificate of trust and in its governing instrument, shall be a separate legal entity.
The certificate of amendment shall set forth:. The future effective date or time which shall be a date or time certain of effectiveness of the certificate if it is not to be effective upon the filing of the certificate. A trustee who becomes aware that any statement in a certificate of trust was false when made or that any matter described has changed making the certificate false in any material respect shall promptly file a certificate of amendment.
The restated certificate of trust shall be specifically designated as such in its heading and shall set forth:. The present name of the statutory trust, and if it has been changed, the name under which the statutory trust was originally formed;. The date of filing of the original certificate of trust with the Secretary of State;. The information required to be included pursuant to subsection a of this section; and. A trustee who becomes aware that any statement in a restated certificate of trust was false when made or that any matter described has changed making the restated certificate false in any material respect shall promptly file a certificate of amendment or a restated certificate of trust.
A certificate of cancellation shall be filed in the office of the Secretary of State and set forth:. A certificate of cancellation that is filed in the office of the Secretary of State prior to the dissolution or the completion of winding up of a statutory trust may be corrected as an erroneously executed certificate of cancellation by filing with the office of the Secretary of State a certificate of correction of such certificate of cancellation in accordance with subsection e of this section.
The Secretary of State shall not issue a certificate of good standing with respect to a statutory trust if its certificate of trust is cancelled. The certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth the portion of the certificate in corrected form and shall be executed and filed as required by this subchapter.
The certificate of correction shall be effective as of the date the original certificate was filed, except as to those persons who are substantially and adversely affected by the correction, and as to those persons the certificate of correction shall be effective from the filing date. In lieu of filing a certificate of correction, the certificate may be corrected by filing with the office of the Secretary of State a corrected certificate which shall be executed and filed in accordance with this subchapter.
The corrected certificate shall be specifically designated as such in its heading, shall specify the inaccuracy or defect to be corrected and shall set forth the entire certificate in corrected form. The corrected certificate shall be effective as of the date the original certificate was filed, except as to those persons who are substantially and adversely affected by the corrections, and as to those persons the corrected certificate shall be effective from the filing date.
The powers of the trustees or receivers may be continued as long as the Court of Chancery shall think necessary for the purposes aforesaid. An authorization, including a power of attorney, to sign any certificate or amendment thereof or to enter into a governing instrument or amendment thereof need not be in writing, need not be sworn to, verified or acknowledged and need not be filed in the office of the Secretary of State, but if in writing, must be retained by the statutory trust or a trustee or other person authorized to manage the business and affairs of the statutory trust.
Such irrevocable power of attorney or proxy, unless otherwise provided therein or in a governing instrument of a statutory trust, shall not be affected by subsequent death, disability, incapacity, dissolution, termination of existence or bankruptcy of, or any other event concerning, the principal.
A power of attorney or proxy with respect to matters relating to the organization, internal affairs or termination of a statutory trust or granted by a person as a beneficial owner or by a person seeking to become a beneficial owner and, in either case, granted to the statutory trust, a trustee or beneficial owner thereof, or any of their respective officers, directors, managers, members, partners, trustees, employees or agents shall be deemed coupled with an interest sufficient in law to support an irrevocable power of attorney or proxy.
The provisions of this subsection shall not be construed to limit the enforceability of a power of attorney or proxy that is part of a governing instrument of a statutory trust. Unless the Secretary of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary of State shall:. This endorsement is conclusive of the date and time of its filing in the absence of actual fraud;.
A copy of each certificate shall be permanently maintained on optical disk or by other suitable medium. Upon the effective time of a certificate of amendment or judicial decree of amendment , certificate of correction, corrected certificate, or restated certificate, the certificate of trust shall be amended or restated as set forth therein. Upon the effective time of a certificate of cancellation or a judicial decree thereof or a certificate of merger or consolidation or a certificate of division which acts as a certificate of cancellation or a certificate of transfer or a certificate of conversion to a non-Delaware entity, as provided for therein, the certificate of trust shall be canceled.
Upon the effective time of a certificate of termination or amendment, the original certificate identified in the certificate of termination or amendment shall be terminated or amended, as the case may be. Any such certificate may be filed by telecopy, fax or similar electronic transmission; provided, however, that the Secretary of State shall have no obligation to accept such filing if such certificate is illegible or otherwise unsuitable for processing.
The following fees shall be paid to and collected by the Secretary of State for the use of this State:. The Secretary of State shall establish and may from time to time alter or amend a schedule of specific fees payable pursuant to this subsection. If the Secretary of State finds that the name is available for use by a statutory trust, the Secretary shall reserve the name for the exclusive use of the applicant for a period of days.
Once having so reserved a name, the same applicant may again reserve the same name for successive day periods. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the office of the Secretary of State a notice of the transfer, executed by the applicant for whom the name was reserved, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name to be transferred and the name and address of the transferee.
The reservation of a specified name may be cancelled by filing with the Secretary of State a notice of cancellation, executed by the applicant or transferee, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name reservation to be cancelled and the name and address of the applicant or transferee.
Unless otherwise provided in the governing instrument of a statutory trust that is not registered as an investment company or regulated as a business development company under the Investment Company Act of , as amended 15 U.
Unless otherwise provided in the governing instrument of a statutory trust that is registered as an investment company or regulated as a business development company under the Investment Company Act of , as amended 15 U. In connection with a merger or consolidation hereunder, rights or securities of, or interests in, a statutory trust or other business entity which is a constituent party to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests in, the surviving or resulting statutory trust or other business entity or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interests in, a statutory trust or other business entity which is not the surviving or resulting statutory trust or other business entity in the merger or consolidation, may remain outstanding or may be cancelled.
Notwithstanding prior approval, an agreement of merger or consolidation may be terminated or amended pursuant to a provision for such termination or amendment contained in the agreement of merger or consolidation. Unless otherwise provided in the governing instrument of a statutory trust, a statutory trust whose original certificate of trust was filed with the Secretary of State and effective on or prior to July 31, , shall continue to be governed by this subsection as in effect on July 31, The certificate of merger or consolidation shall state:.
Process may be served upon the Secretary of State under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate.
In the event of service hereunder upon the Secretary of State, the plaintiff in any such action, suit or proceeding shall furnish the Secretary of State with the address specified in the certificate of merger or consolidation provided for in this section and any other address which the plaintiff may elect to furnish, together with copies of such process as required by the Secretary of State, and the Secretary of State shall notify such surviving or resulting other business entity thereof at all such addresses furnished by the plaintiff by letter.
Such letter shall be sent by a mail or courier service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature of the recipient. Such letter shall enclose a copy of the process and any other papers served upon the Secretary of State.
The Secretary of State shall maintain an alphabetical record of any such process setting forth the name of the plaintiff and defendant, the title, docket number and nature of the proceedings in which process has been served upon the Secretary, the return date thereof, and the day and hour when the service was made. The Secretary of State shall not be required to retain such information for a period longer than 5 years from the Secretary's receipt of the service of process.
Whenever this section requires the filing of a certificate of merger or consolidation, such requirement shall be deemed satisfied by the filing of an agreement of merger or consolidation containing the information required by this section to be set forth in the certificate of merger or consolidation. Any amendment to the governing instrument of a statutory trust or adoption of a new governing instrument of the statutory trust made pursuant to the foregoing sentence shall be effective at the effective time or date of the merger or consolidation and shall be effective notwithstanding any provision of the governing instrument relating to amendment or adoption of a new governing instrument, other than a provision that by its terms applies to an amendment to the governing instrument or the adoption of a new governing instrument, in either case, in connection with a merger or consolidation.
The provisions of this subsection shall not be construed to limit the accomplishment of a merger or consolidation or of any of the matters referred to herein by any other means provided for in the governing instrument of a statutory trust or other agreement or as otherwise permitted by law, including that the governing instrument of any constituent statutory trust to the merger or consolidation including a statutory trust formed for the purpose of consummating a merger or consolidation shall be the governing instrument of the surviving or resulting statutory trust.
Unless otherwise provided in a governing instrument, a statutory trust whose original certificate of trust was filed with the Secretary of State and effective on or prior to July 31, , shall continue to be governed by this subsection as in effect on July 31, The Court of Chancery shall have jurisdiction to hear and determine any matter relating to any appraisal provided in a governing instrument or an agreement of merger or consolidation or a plan of division. Except to the extent otherwise provided in the governing instrument of a statutory trust, a statutory trust may acquire, by purchase, redemption or otherwise, any beneficial interest in the statutory trust held by a beneficial owner of the statutory trust.
Except to the extent otherwise provided in the governing instrument of a statutory trust, any such interest so acquired by a statutory trust shall be deemed canceled. In every instance where an attorney or other agent shall be the person who seeks the right to obtain the information described in subsection a of this section, the demand shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the beneficial owner or trustee.
The rights, privileges, powers and interests in property of the other business entity, as well as the debts, liabilities and duties of the other business entity, shall not be deemed, as a consequence of the conversion, to have been transferred to the statutory trust to which such other business entity has converted for any purpose of the laws of the State.
When the other business entity has been converted to a statutory trust pursuant to this section, the statutory trust shall, for all purposes of the laws of the State, be deemed to be the same person as the converting other business entity. If the governing instrument does not specify the manner of authorizing a conversion of the statutory trust and does not prohibit a conversion of the statutory trust, the conversion shall be authorized in the same manner as is specified in the governing instrument for authorizing a merger or consolidation that involves the statutory trust as a constituent party to the merger or consolidation.
If the governing instrument of a statutory trust that is not registered as an investment company or regulated as a business development company under the Investment Company Act of , as amended 15 U.
If the governing instrument of a statutory trust that is registered as an investment company or regulated as a business development company under the Investment Company Act of , as amended 15 U. The certificate of conversion to a non-Delaware entity shall state:. Process may be served upon the Secretary of State under paragraph e 6 of this section by means of electronic transmission but only as prescribed by the Secretary of State.
A copy of the certificate of conversion to a non-Delaware entity certified by the Secretary of State shall be prima facie evidence of the conversion by such statutory trust out of the State of Delaware. The rights, privileges, powers and interests in property of the statutory trust that has converted, as well as the debts, liabilities and duties of such statutory trust, shall not be deemed, as a consequence of the conversion, to have been transferred to the other business entity to which such statutory trust has converted for any purpose of the laws of the State of Delaware.
The rights, privileges, powers and interests in property of the non-United States entity, as well as the debts, liabilities and duties of the non-United States entity, shall not be deemed, as a consequence of the domestication, to have been transferred to the domestic statutory trust to which such non-United States entity has domesticated for any purpose of the laws of the State of Delaware.
Unless otherwise agreed, for all purposes of the laws of the State of Delaware, the domesticating non-United States entity shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the domestication shall not be deemed to constitute a dissolution of such non-United States entity and shall constitute a continuation of the existence of the domesticating non-United States entity in the form of a domestic statutory trust.
If, following domestication, a non-United States entity that has become domesticated as a statutory trust continues its existence in the foreign country or other foreign jurisdiction in which it was existing immediately prior to domestication, the statutory trust and such non-United States entity shall, for all purposes of the laws of the State of Delaware, constitute a single person formed, incorporated, created or otherwise having come into being, as applicable, and existing under the laws of the State of Delaware and the laws of such foreign country or other foreign jurisdiction.
If the governing instrument does not specify the manner of authorizing a transfer or domestication or continuance described in subsection a of this section and does not prohibit such a transfer or domestication or continuance, the transfer or domestication or continuance shall be authorized in the same manner as is specified in the governing instrument for authorizing a merger or consolidation that involves the statutory trust as a constituent party to the merger or consolidation.
The certificate of transfer or the certificate of transfer and continuance shall state:. That the existence of the statutory trust as a statutory trust of the State of Delaware shall cease when the certificate of transfer becomes effective; and. The agreement of the statutory trust that it may be served with process in the State of Delaware in any action, suit or proceeding for enforcement of any obligation of the statutory trust arising while it was a statutory trust of the State of Delaware, and that it irrevocably appoints the Secretary of State as its agent to accept service of process in any such action, suit or proceeding;.
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