Ark. Code Ann. » Title 28 Chapter 73
Arkansas Code Annotated

Ark. Code Ann. § 28-73-105 (2020)

Default and mandatory rules

✓ Arkansas Code release r76: Acts through about 2020 (2021-2025 sessions missing)
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  1. Except as otherwise provided in the terms of the trust, this chapter governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.
  2. The terms of a trust prevail over any provision of this chapter except:
    1. the requirements for creating a trust;
    2. subject to §§ 28-76-109, 28-76-111, and 28-76-112 of the Uniform Directed Trust Act, § 28-76-101 et seq., the duty of a trustee to act in good faith and in accordance with the purposes of the trust;
    3. the requirement that a trust and its terms be for the benefit of its beneficiaries, and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve;
    4. the power of a court to modify or terminate a trust under §§ 28-73-410 — 28-73-416;
    5. the effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in § 28-73-501 et seq.;
    6. the power of a court under § 28-73-702 to require, dispense with, or modify or terminate a bond;
    7. the power of a court under § 28-73-708(b) to adjust a trustee's compensation specified in the terms of the trust which is unreasonably low or high;
    8. the rights under §§ 28-73-1010 — 28-73-1013 of a person other than a trustee or beneficiary;
    9. periods of limitation for commencing a judicial proceeding;
    10. the power of a court to take such action and exercise such jurisdiction as may be necessary in the interests of justice; and
    11. the subject-matter jurisdiction of a court for commencing a proceeding as provided in § 28-73-203.

History. Acts 2005, No. 1031, § 1; 2019, No. 1021, § 2.

Amendments. The 2019 amendment added “subject to §§ 28-76-109, 28-76-111, and 28-76-112 of the Uniform Directed Trust Act” in (b)(2).

Effective Dates. Acts 2019, No. 1021, § 6: Jan. 1, 2020.

Research References

Ark. L. Notes.

Circo, How Does the Arkansas Trust Code Affect Real Estate Transactions?, 2007 Ark. L. Notes 45.

U. Ark. Little Rock L. Rev.

Lucy L. Holifield, Note: Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 38 U. Ark. Little Rock L. Rev. 75 (2015).

Case Notes

Trust Amendments.

Consent of a secondary beneficiary to trust amendments was not required because the express terms of the trusts permitted the amendments at issue. Dawson v. Stoner-Sellers, 2019 Ark. 410, 591 S.W.3d 299 (2019).

Notes of Decisions
Cited in 4 cases (2 in the last 5 years), 2019–2024 · leading case: Ashley Jacks, Individually & as parent/legal Custodian to Minor Beneficiaries, Paris Ludwig & Bayli Ludwig, of the Havis L. Jacks Revocable Trust v. Sandra Brossett, Individually, as of the Last Will & Testament of Havis L. Jacks, & as Tr. of the Havis L. Jacks Revocable Trust, 2024 Ark. App. 6, 682 S.W.3d 362.
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Ashley Jacks, Individually & as parent/legal Custodian to Minor Beneficiaries, Paris Ludwig & Bayli Ludwig, of the Havis L. Jacks Revocable Trust v. Sandra Brossett, Individually, as of the Last Will & Testament of Havis L. Jacks, & as Tr. of the Havis L. Jacks Revocable Trust, 2024 Ark. App. 6, 682 S.W.3d 362. · cites it 4× “Ark. Code Ann. § 28-73-105 . Thus, Ashley’s filing of a lawsuit based on those provisions of the Trust Code also amounted to a challenge to the Trust provisions in violation of the in terrorem clauses.”
Fisher v. Boling, 2019 Ark. App. 225, 575 S.W.3d 592. · cites it 2× “, Ark. Code Ann. § 28-73-105 (Repl. 2012) (noting some limited exceptions).”
Ray H. Dawson, Jr. Janelle D. Stoner-Sellers, Individually & as Tr. of R&Ld Trust, R&Ld Trust II, & R&Ld Trust III, 2019 Ark. 410, 591 S.W.3d 299. · cites it 2× “See Ark. Code Ann. § 28-73-105 (providing that terms of a trust prevail over provisions of the Arkansas Trust Code with exceptions not applicable here).”
Holmbeck v. Solomon, 639 F. Supp. 3d 829 (E.D. Ark. 2022). · cites it 3× “Plaintiffs’ theory would essentially require the Court to say this provision of the Trust only authorizes Defendant to sell something or loan money to the Trust so long as Defendant breaks even or loses money.”
Ark. Code Ann. § 28-73-105(b)(2): 1 case
Holmbeck v. Solomon, 639 F. Supp. 3d 829 (E.D. Ark. 2022). “Plaintiffs’ theory would essentially require the Court to say this provision of the Trust only authorizes Defendant to sell something or loan money to the Trust so long as Defendant breaks even or loses money.”
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