§ 12602. Nondepository trust companies

(a) A nondepository trust company has all the powers, duties, and obligations of a financial institution under this title, except as provided in this section. In the exercise of its powers and the conduct of its business, the nondepository trust company shall be subject to all the same fiduciary duties and obligations as a financial institution operating a trust department under subchapter 4 of chapter 204 of this title.

(b) A nondepository trust company shall not have the power to solicit, receive, or accept money or its equivalent on deposit as a regular business within the meaning of subdivision 11101(11) of this title; shall not be required to obtain federal deposit insurance; shall not have the power to lend money, except in transactions reasonably related to and deriving from its service as fiduciary or its conduct of trust business; and shall not conduct any other business except that which is incidental to its trust business and which is otherwise consistent with the exercise of its fiduciary duties.

(c) No nondepository trust company, other than a national trust company authorized to engage in a trust business in this State, shall engage in a trust business in this State without first obtaining a certificate of authority from the Commissioner pursuant to this section and sections 11703, 12103, and 14403 of this title.

(d) Notwithstanding section 15101 of this title, without the prior approval of the Commissioner, a nondepository trust company that is authorized to do business in this State may open and occupy a trust office at any one or more locations in this State at which its financial institution holding company parent or any affiliate financial institution has an office, whether a main office or a branch office.

(e) Any other trust office of a nondepository trust company organized as a Vermont financial institution shall be established in this State only with the prior approval of the Commissioner as provided in subsection 11701(c) of this title.

(f) The establishment of trust offices by a nondepository trust company organized as a national trust company shall be governed by applicable federal law.

(g) The organizational documents of a nondepository trust company organized as a Vermont financial institution that are filed with the Secretary of State shall contain the following statement: "This organization is subject to the Vermont law on nondepository trust companies, section 12602 of this title, and does not have the power to solicit, receive, or accept money or its equivalent on deposit or to lend money except for lending reasonably related to and deriving from its service as fiduciary or its conduct of trust business." This statement in the organizational documents of a nondepository trust company may not be amended.

(h) All of the outstanding equity interests of a nondepository trust company shall be owned directly, or indirectly through one or more subsidiaries, by a financial institution holding company.

(i) A nondepository trust company organized as a Vermont financial institution shall maintain minimum capital in accordance with this chapter and section 14104 of this title, except the Commissioner may by order or rule apply standards for the minimum capital required for a nondepository trust company that are different from those requirements for a universal financial institution organized under this title, based on the nature of the business.

(j) Funds received or held by a nondepository trust company organized as a Vermont financial institution while awaiting investment or distribution shall not be used by the nondepository trust company or any affiliate financial institution in the conduct of its business or deposited in such financial institution, except to the same extent, and subject to the same conditions and limitations, as would be otherwise permitted under this title if the nondepository trust company and affiliated financial institution were one and the same corporate entity. The account shall be held either in the name of the trust to which the cash belongs or in the name of the nondepository trust company and shall be composed entirely of cash belonging to trust accounts, the respective contributions of which are reflected in the books and records of the nondepository trust company.

(k) A nondepository trust company organized as a Vermont financial institution shall include as a part of its name the word "trust" unless otherwise approved by the Commissioner for good cause shown.

(l) A nondepository trust company organized as a Vermont financial institution shall be subject to regular examination and supervision by the Commissioner to the same extent as any other financial institution chartered under Vermont law.

(m) A nondepository trust company organized as a Vermont financial institution may convert to any other type of investor-owned financial institution pursuant to chapter 206 of this title.

(n)(1) At any time or times following the grant to a nondepository trust company of permission to engage in the trust business by the Commissioner, or in the case of a national trust company by its federal supervisory agency, the nondepository trust company may file a petition in the Probate Division of the Superior Court of the Probate District in which its main office is located requesting that it be substituted, except as may be specifically excluded in such petition, in every fiduciary capacity for any one or more of its affiliate financial institutions specified in the petition. The petition may be made ex parte and need not list the fiduciary capacities in which substitution is made. A copy of the petition shall be furnished to the Commissioner prior to filing with the Probate Division of the Superior Court and the Commissioner shall have standing to appear and object to the petition. Upon a finding that (A) the nondepository trust company has been granted permission to engage in the trust business by the Commissioner, or the federal supervisory agency if the nondepository trust company is a national trust company, and (B) each of the affiliate financial institutions for which the nondepository trust company seeks to be substituted as fiduciary has complied with the notification requirements in subdivision (2) of this subsection, the Court shall enter an order substituting the nondepository trust company in every fiduciary capacity for each of its specified affiliate financial institutions, except as otherwise specified in the nondepository trust company's petition. If the Court determines that the Commissioner's objection has merit, the Court shall issue an appropriate order to address the Commissioner's objection. The petition made pursuant to this section shall be considered in a summary fashion by the Court, and the Court shall act on the petition within 30 days of filing. Upon entry of the Court's substitution order, the nondepository trust company shall, without further act, be deemed substituted by operation of law in every such fiduciary capacity, except as may be specifically excluded in such petition. The substitution shall be evidenced by filing a copy of the order with the Clerk of the Vermont Probate Division of the Superior Court in each Probate District in which the affiliate financial institutions served in a fiduciary capacity prior to the entry of the order. The order shall be accompanied by written notification to the Court of each fiduciary appointment previously made by the Court that is affected by the substitution order, and evidence of compliance with subdivision (5) of this subsection. The order of substitution shall be indexed in the records of the Courts in the manner in which substitutions of fiduciaries are indexed.

(2) At least 30 days before the filing of the petition referred to in subdivision (1) of this subsection, but after regulatory approval under subsection (c) of this section has been granted, each of the affiliate financial institutions for which the nondepository trust company seeks to be substituted shall mail written notice of the proposed substitution to the principals of each trust account affected. The form of notice required by this subdivision shall be approved by the Commissioner and shall include a statement that the nondepository trust company is affiliated with its affiliate financial institutions, but is not a part of them, and shall include the name, mailing address, and telephone number of one or more officers, employees, or agents of the affiliate financial institution available during regular business hours to answer customer questions regarding the proposed substitution. The affiliate financial institution shall furnish an affidavit of the mailing of the notice to the Probate Division of the Superior Court in conjunction with the filing of the nondepository trust company's petition referred to in subdivision (1) of this subsection, and the affidavit shall constitute the affiliate financial institution's compliance with this subdivision. Following the mailing of the notice and prior to the effective date of the substitution order, each of the affiliate financial institutions shall furnish a copy of the notice to each prospective trust customer of the financial institution before the customer and the financial institution enter into a trust account relationship.

(3) Within 30 days after the entry of the substitution order referred to in subdivision (1) of this subsection, the nondepository trust company shall mail written notice of the substitution to the principals of each trust account affected. The notice shall specify that the nondepository trust company is affiliated with its affiliate financial institutions, but is not a part of them, and shall include the name, mailing address, and telephone number of one or more officers or employees of the nondepository trust company available during regular business hours to answer customer questions regarding the substitution.

(4) Each designation in a will, trust, or other instrument executed before or after the entry of an order of substitution, naming an affiliate financial institution as fiduciary, shall be deemed by operation of law to be a designation of the nondepository trust company, substituted pursuant to this section, without further act or amendment of the will, trust, or other instrument, unless the will, trust, or other instrument is executed after the date of entry of the order of substitution and specifically negates application of this section.

(5) If any affiliate financial institution for which the nondepository trust company has been substituted pursuant to this section has given bond in any fiduciary capacity, the nondepository trust company shall be required to furnish to the Court or authority making the appointment a substitute bond in like amount and terms before the affiliate financial institution shall be released from liability on its bond.

(6) Any affiliate financial institution for which the nondepository trust company has been substituted pursuant to this section shall account jointly with the nondepository trust company for the accounting period during which the effective date of the substitution occurs. Upon substitution pursuant to this section, the affiliate financial institution shall deliver to the nondepository trust company all assets addressed in the substitution order held by the affiliate financial institution as fiduciary and upon the substitution all the assets shall become the property of the nondepository trust company as fiduciary without the necessity of any instrument of transfer or conveyance.

(7) Upon substitution of the nondepository trust company pursuant to subdivision (1) of this subsection, the nondepository trust company shall pay fair consideration to each affiliate financial institution for which it has been substituted as fiduciary for the trust business it has acquired from the affiliate as a result of the substitution.

(o) To the extent not inconsistent with this section or with the limited scope of the banking powers of a nondepository trust company as contemplated in subsection (b) of this section, a nondepository trust company organized as a Vermont financial institution shall be subject to the laws of this State generally applicable to investor-owned financial institutions organized pursuant to chapter 202 of this title; provided, however, that the provisions of this chapter governing substitution of the nondepository trust company as fiduciary shall be exclusive and chapters 206, 207, and 208 of this title shall not apply to the substitution.

(p) A depository institution organized either as a Vermont financial institution or a national financial institution if authorized by its supervisory agency to exercise trust powers may be substituted as a fiduciary for any of its affiliate financial institutions under the same procedures, and the substitution shall be subject to the same conditions specified in this section, other than the prohibition against deposit-taking and the provisions of subsection (k) of this section, with respect to the substitution as fiduciary of a nondepository trust company for any of its affiliate financial institutions. The substitution procedures shall be exclusive and chapters 206, 207, and 208 of this title shall not apply to the substitution.

(q) Notwithstanding subsection 12201(a) of this title, the governing body of a nondepository trust company shall meet at least four times a year, including once quarterly. (Added 1999, No. 153 (Adj. Sess.), § 2, eff. Jan. 1, 2001; amended 2001, No. 73 (Adj. Sess.), § 4, eff. Feb. 2, 2002; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 134 (Adj. Sess.), § 8.)