Probate & Trust Law Section Conference Manual ... - Minnesota CLE

d. RAP Approach #2: Abolish the Rule as applied to trusts, but retain it in other
situations 31
i. Introduction: As previously discussed, this approach was first embraced by
Alaska, but was later abandoned in 2000 (see ALASKA STAT. §§ 34.27.100,
34.27.051). Many of these states retain the RAP for all interests, unless those
interests are exempt, for instance where the trustee has certain powers (power to
sell, distribute or terminate the trust). 32
ii. States (all post-1986):
1. Arizona 33 (retains in Common Law RAP) – Arizona keeps the common
law RAP, but also allows nonvested interests that violate the RAP to
persist for a 500-year wait-and-see period, 34 and also permits nonvested
interests under a trust to last forever, so long as the trustee is empowered
to sell the assets and the trust includes certain termination powers. 35
Instead of directly repealing or abolishing its RAP, Arizona preferred to
maintain it in name while supplementing it.
2. Colorado 36
3. District of Columbia 37
4. Hawaii 38
5. Michigan 39
6. Nebraska 40
Please See: Daniel G. Worthington, The Problems and Promise of
Perpetual Trust Laws, TRUSTS & ESTATES, Dec. 2004. 41
e. RAP Approach #3: The “term of years” approach which merely extends the perpetuity
period 42
i. Introduction: The USRAP is 90 years. Despite the RAP, several states have
extended well beyond the 90 years.
31 Moritz, supra note 5.
32 ALASKA STAT. §§ 34.27.100, 34.27.051; Stephen E. Greer, The Alaska Dynasty Trust, 18 ALASKA L. REV. 253,
276 (2001); Stephen E. Greer, The Delaware Tax Trap and the Abolition of the Rule Against Perpetuities, 28 EST.
PLAN. 68 (2001).
33 ARIZ. REV. STAT. §§ 14-2901A, 33-261.
34 Id. § 14-2901(A)(2).
35 Id. § 14-2901(A)(3).
36 COLO. REV. STAT. § 15-11-1102.5.
37 D.C. CODE §§ 19-904(a)(10), 19-901.
38 HAW. REV. STAT. §§ 525-1, 554G.
39 MICH. COMP. LAWS §§ 554.71 – 554.78, 554.91 – 554.94.
40 NEB. REV. STAT. §§ 76-2001 – 76-2008.
41 See supra note 5; see also Daniel G. Worthington and Mark Merric, Which Situs is Best?, TRUSTS & ESTATES,
Jan. 1, 2010; Daniel G. Worthington and Mark Merric, Which Situs is Best in 2012, TRUSTS & ESTATES, Jan. 1,
2012.
42 Moritz and Worthington “Problems and Promise,” supra note 5.
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