PARRIS N. GLENDENING, Governor

Ch. 385

(5) THE POWER TO EXERCISE ANY OF THE POWERS PROSCRIBED IN
THIS SUBSECTION WITH REGARD TO A BENEFICIARY OTHER THAN THE TRUSTEE TO
THE EXTENT THAT SUCH BENEFICIARY COULD EXERCISE A SIMILAR PROHIBITED
POWER IN CONNECTION WITH A TRUST WHICH BENEFITS THE TRUSTEE.

(B)     IF A TRUSTEE IS PROHIBITED BY SUBSECTION (A)(1) OF THIS SECTION
FROM EXERCISING A POWER CONFERRED UPON THE TRUSTEE, THE TRUSTEE MAY
NEVERTHELESS EXERCISE THE POWER EXCEPT THAT THE TRUSTEE'S EXERCISE OF
THAT POWER SHALL BE LIMITED BY AN ASCERTAINABLE STANDARD RELATING TO
THE TRUSTEE'S HEALTH, EDUCATION, SUPPORT AND MAINTENANCE, AS DEFINED IN
26 U.S.C. §§ 2041 AND 2514 AND THE TREASURY REGULATIONS PROMULGATED UNDER
THOSE SECTIONS.

(C)     IF THE GOVERNING INSTRUMENT CONTAINS A POWER DESCRIBED
UNDER SUBSECTION (A) OF THIS SECTION, AND THERE IS NO TRUSTEE WHO CAN
EXERCISE SUCH POWER, UPON APPLICATION OF ANY PARTY IN INTEREST, A COURT
MAY APPOINT A TRUSTEE WHO IS NOT OTHERWISE DISQUALIFIED UNDER THIS
SECTION TO EXERCISE ANY SUCH POWER DURING THE PERIOD OF TIME THAT THE
COURT DESIGNATES.

(D)     THIS SECTION DOES NOT APPLY IF:

(1)      AS A RESULT OF APPLICATION OF SUBSECTION (A) OF THIS SECTION,
A MARITAL DEDUCTION FOR THE TRUST PROPERTY WOULD NOT BE ALLOWED TO A
SPOUSE WHO IS A TRUSTEE AND TO WHOM A MARITAL DEDUCTION WOULD
OTHERWISE BE ALLOWED UNDER THE INTERNAL REVENUE CODE; OR

(2)      THE TRUST IS REVOCABLE OR AMENDABLE, DURING THE TIME
THAT THE TRUST REMAINS REVOCABLE OR AMENDABLE.

(E)     (1) IN THIS SUBSECTION, "PARTIES IN INTEREST" MEANS:

(I)      EACH TRUSTEE THEN SERVING; AND

(II)     EACH INCOME BENEFICIARY AND REMAINDER BENEFICIARY
THEN IN EXISTENCE OR, IF SUCH BENEFICIARY HAS NOT ATTAINED MAJORITY OR IS
OTHERWISE INCAPACITATED, THE BENEFICIARY'S LEGAL REPRESENTATIVE UNDER
APPLICABLE LAW OR THE BENEFICIARY'S DONEE UNDER A DURABLE POWER OF
ATTORNEY THAT IS SUFFICIENT TO GRANT SUCH AUTHORITY.

(2) SUBJECT TO THE PROVISIONS OF SUBSECTION (D) OF THIS SECTION,
THIS SECTION APPLIES TO:

(I)      ANY TRUST CREATED UNDER A GOVERNING INSTRUMENT
EXECUTED AFTER SEPTEMBER 30, 1995, UNLESS THE TERMS OF THE GOVERNING
INSTRUMENT PROVIDE EXPRESSLY THAT THIS SECTION DOES NOT APPLY; AND

(II)     ANY TRUST CREATED UNDER A GOVERNING INSTRUMENT
EXECUTED BEFORE OCTOBER 1, 1995, UNLESS ALL PARTIES IN INTEREST ELECT
AFFIRMATIVELY NOT TO BE SUBJECT TO THE APPLICATION OF THIS SECTION ON OR
BEFORE THE LATER OF OCTOBER 1, 1998, OR 3 YEARS AFTER THE DATE ON WHICH
THE TRUST BECOMES IRREVOCABLE.

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