Indiana Code
Chapter 2.1. Rules for Interpretation of Trusts
30-4-2.1-14.5. "Discretionary Interest"; Rules of Construction

Sec. 14.5. (a) As used in this section and section 14 of this chapter, "discretionary interest" refers to any interest over which the trustee has any discretion to make or withhold a distribution.
(b) A discretionary interest may be evidenced by permissive language such as "may make distributions" or may be evidenced by mandatory distribution language that is negated by the discretionary language of the trust such as "the trustee shall make distributions in the trustee's sole and absolute discretion".
(c) An interest that includes distribution language that appears mandatory but is subsequently qualified by discretionary distribution language is considered a discretionary interest.
(d) Trust provisions that create discretionary interests include the following examples:
(1) "The trustee may, in the trustee's sole and absolute discretion, make distributions for health, education, maintenance, and support.".
(2) "The trustee shall, in the trustee's sole and absolute discretion, make distributions for health, education, maintenance, and support.".
(3) "The trustee may make distributions for health, education, maintenance, and support.".
(4) "The trustee shall make distributions for health, education, maintenance, and support. The trustee may exclude any beneficiary or make unequal distributions among the beneficiaries.".
(5) "The trustee may make distributions for health, education, maintenance, support, comfort, and general welfare.".
As added by P.L.36-2011, SEC.8.

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