For the Articles dealing with the code itself, the Desk Reference uses the following format: (1) the Arizona statutory text is outlined in detail, (2) the outline is immediately followed by a section captioned "Reprise & Comment" which restates the content of each treated Arizona code by section and subsection; which in turn is followed by (a) a complete synopsis of the commentaries presented by the national conference of commissioners on uniform state laws for each presented companion U.T.C. section (or subsection), (b) editor comments, where applicable thereto, including how Arizona's code section differs from its U.T.C counterpart, as well as references to appendixed material, and (c) a synopsis of each related Restatement of Trusts (Second or Third) rule and commentary thereto for a treatment of the common law.

The format for the "Reprise & Comment", including detailed references to U.T.C. commentary and discussion of the related Restatement Trusts (Second and Third) rules and comments, is suggested by the format adopted by the Arizona Trust Code itself. Thus A.R.S. §14-10106A ("Common law of trusts; principles of equity") provides that the common law of trusts and the principles of equity supplement the trust code except as (specifically) modified thereby or by another Arizona statute. Similarly, subsection B thereof states that with respect to the common law, the court shall look to the Restatement (Second) of Trusts to determine rights and powers of trust beneficiary's creditors, trustee distributional duties to beneficiaries, whether public policy affects enforceability and effectiveness of trust terms and matters effectuating settlor intent (thereby suggesting that Restatement Trusts (Third) is otherwise relevant). Significantly, the commissioner's commentary to U.T.C. §106 ("Common Law Of Trusts; Principles Of Equity") specifically states:

"The Code is supplemented by the common law of trusts including principles of equity. To determine the common law and principles of equity in a particular state, a court should look first to prior case law in the state and then to more general sources, such as the Restatement of Trusts, Restatement (Third) of Property: Wills and Other Donative Transfers, and the Restatement of Restitution. The common law of trusts is not static but includes the contemporary and evolving rules of decision developed by the courts in exercise of their power to adapt the law to new situations and changing conditions. It also includes the traditional and broad equitable jurisdiction of the court, which the Code in no way restricts.

The statutory text of the Uniform Trust Code is also supplemented by these Comments, which like the comments of any Uniform Act, may be relied on as a guide for interpretation. See-- Acierno v. Worthy Bros. Pipeline Corp., 656 A.2d 1085, 1090 (Del. 1995) (interpreting the Uniform Commercial Code); Yale University v. Blumenthal, 621 A.2d 1304, 1307 (Conn. 1993) (interpreting the Uniform Management of Institutional Funds Act); 2 Norman Singer, Statutory Construction §52.05 (6th ed. 2000). Jack Vavies, Legislative Law and Process in a Nutshell §55-4 (2d ed. 1986)."

With respect to the U.T.C. commentaries, in 2003 the national commissioners on uniform state laws provided 150 pages of commentary to coincide with promulgation of the Code and the call for its recommended adoption by the states. These commentaries, which are updated after each annual conference, discuss every code section, except those transferred from the (former) Revised Uniform Prudent Investor Act (R.U.P.I.A.) which are found in (portions) of trust code under Article 8 ("DUTIES AND POWERS OF TRUSTEE") and Article 9 ("PRUDENT INVESTOR ACT"). For these sections, the editor has incorporated the national commissioners' commentary from the U.P.I.A. itself.

Note also that while Arizona's current trust code did not adopt the language which appeared in A.R.S. §14-11201 ("Uniformity of application and construction") of its prior version of the trust code (which was repealed before its effective date), directing that in "applying and construing this uniform code, consideration must be given: ...(2) to the comments adopted by the national conference of commissioners on uniform state laws...", practitioners should nonetheless feel free to consult with and rely on them as accurate information regarding the Code. Similarly, despite the deletion of the Probate And Trust Section (PATS) commentaries from the current code, the editor nonetheless makes reference to them in this Desk Reference at least to the extent that they may be helpful in construing the law.

In both the outline, reprises and commentaries, the editor has not felt obligated to necessarily provide the statute verbatim, instead presenting as reliable a restatement of the language as possible. In so doing the editor relies on an "irrebuttable presumption" that those who seriously use the Desk Reference, have access to the text of the statute itself and will rely on it appropriately.

The editor's comments are sprinkled throughout the text to provide helpful observations which necessarily accrue during the process of studying, collating and cross referencing the code, including its companion commentary, with particular attention paid to how Arizona's code and the Uniform code (including its explanatory commentary) differ. The comments follow not only the reprise of statutory sections, but also occasionally appear in bracketed italicized references within the commissioners' statutory commentary itself.

Consistent with the discussion above, the U.T.C. commentary states that the Code was drafted "in close coordination with the writing of the Restatement, Trusts, Third." Throughout the U.T.C. commentaries, numerous references to the influence of specific Restatement sections from which the U.T.C. section is adapted or based, are cited. Accordingly, discussion of the related Restatement sections and a synopsis of their commentaries are provided as an indispensable part to any discussion of any jurisdiction's uniform trust code.

The importance of the Restatement of Trusts as a starting point for the review of the common law of trusts and for use as a supplement to the U.T.C. requires a brief discussion of this work including its development. The Restatement of Trusts is presented in statutory form, section by section, The statutory format is then followed by commentaries, which amplify and clarify the stated rules. Thereafter, the commentary is followed by Reporter's Notes which state case law, statutory trends and other materials relating to each treated section.

Working with the Restatement is itself a challenge because of its evolving nature, a situation which the commissioners on uniform (trust) law were undoubtedly aware. The last complete treatment of the subject is presented in Restatement of Law Second, Trusts, adopted and promulgated on May 23, 1957 and published in a two volume edition in 1959. However, the updated, modernized, version embodied in Restatement of Law Third, Trusts has been, and continues to be formulated and promulgated in stages, making its citation as authority somewhat difficult.

The first effort of Restatement Third, Trusts came in principally modifying §§227-229 of Restatement Second, Trusts, dealing with trustee investment duties. Moreover, this effort included the modification of a dozen or so statutes also found in Restatement Second, Trusts, Chapter 7 "THE ADMINISTRATION OF THE TRUST", Topic 1 "GENERAL PRINCIPLES" and Topic 2 "DUTIES OF THE TRUSTEE". These modifications changed the Restatement rule and either entirely or partially amended the Commentary thereto as well. Collectively, this revision is called Restatement of Law Trusts, Third Prudent Investor Rule, finally adopted and promulgated on May 18, 1990 and currently published as one volume in 1992. Although this was the first installment of Restatement Third, Trusts, the version retained the section numbering provided in Restatement Second, Trusts.

The second effort of Restatement Third, Trusts came in the release of two new volumes. Volume 1 covers Part 1. "NATURE, CHARACTERISTICS AND TYPES OF TRUST" and Part 2. "CREATION OF TRUSTS, with newly numbered sections therein as §§1-26. Volume 2. covers Part 3. "ELEMENTS OF TRUST", Part 4. "NATURE OF BENEFICIARIES' RIGHTS AND INTERESTS" and Part 5. "MODIFICATION AND TERMINATION OF TRUSTS" with newly numbered sections therein as §§27-69. Both of these volumes were finally adopted and promulgated on May 16, 2001 and are collectively published in one softbound volume that same year.

The third effort of Restatement Third, Trusts came as Volume 3 covering Part 6. "TRUST ADMINISTRATION", with newly numbered sections therein as §70-92. Note that sections §227-229 Restatement Trusts, Second, which were revised as Restatement Third, Prudent Investor Rule are further revised in and appear as new Chapter 17 "INVESTMENT OF TRUST FUNDS (THE "PRUDENT INVESTOR RULE") and renumbered §§90-92, in this most recent update of Restatement Third, Trusts. This volume was finally adopted and promulgated on May 18, 2005 and published in one hard bound volume in 2007. However, the prior published version of §§70-89 was available in the form of Tentative Draft No. 4 (April 5, 2005) which version was itself modified in the final promulgated version which was also published in 2007.

The present, ongoing, effort of Restatement Third, Trusts is embodied in Part 6 "TRUST ADMINISTRATION" which will add Chapters 18-22, §§93-110. This version has at the completion date of this manuscript appeared in the form of Preliminary Draft No. 8 (May 11, 2007). This work is itself described in the Reporter's Memorandum thereto as "a highly preliminary Preliminary Draft of the last volume of our Trusts Third project." Moreover, this publication appears with the following caveat to those who review it:

"This document, as of the date it was printed, had not been considered by the Council or membership of The American Law Institute, and therefore does not represent the position of the Institute on any of the issues with which it deals."

Similarly, the publication reiterates the further status of this draft as follows:

"The bylaws of the American Law Institute provide that `Publication of any work as representing the Institute's position requires authorization by the membership and approval by the Council.' Each portion of an Institute project is submitted initially for review to the project's Consultants or Advisers as a Memorandum, Preliminary Draft, or Advisory Group Draft. As revised, it is then submitted to the Council of the Institute in the form of a Council Draft. After review by the Council, it is submitted as a Tentative Draft, Discussion Draft, or Proposed Final Draft for consideration by the membership at the Institute's Annual Meeting. At each stage of the reviewing process, a Draft may be referred back for revision and resubmission. The status of this Draft is indicated on the front cover and title page. This is the first draft of the material contained in this Draft."

Given the above cited status of this draft, the editor has not incorporated Part 6 into this manuscript, even though sections contained therein are liberally used as further explanatory references in Parts 4. and 5. of (finally approved) Restatement Third, Trusts.

Due to the evolving nature of the Restatement, Trusts as discussed above, and the fact that the U.T.C. commentary which refers to is as the basis for U.T.C. sections relied on its version(s) as they existed a number of years ago, it is occasionally difficult for the editor to translate the older version (dates) relied on by the code to the restatement as currently constituted. Moreover, to illustrate the foregoing, the Commissioners' commentary to the U.T.C. will sometimes (1) only cite the Restatement Second, Trusts section(s), or (2) cite both Restatement Second and its Restatement Third, Trusts counterpart sections, or (3) only cite Restatement Third, Trusts Prudent Investor Rule sections. Where possible the editor has elected to reprise only the more modern Restatement Trusts, Third, Sections in discussing the relevant U.T.C. sections (despite the A.R.S. §14- 10106B preference for citation of Restatement Trust, Second with respect to certain matters--see discussion above). However, given the unsettled status of Restatement Third, Trusts Part 6., §§93- 110, and related factors, this is not always possible or prudent, therefore comparable Restatement Second, Trusts sections are presented as the better authority basis for discussing trust law.

The remaining question is the extent to which the evolving nature of the development of the Restatement Trusts is diminished as a source of citation of the law of trusts within the U.T.C. It is the editor's view that subject to certain apparent exceptions occurring relatively infrequently, the positions expounded in Restatement Trusts (in whatever version) are similarly compatible with the U.T.C. so as not to create significant problems in their reliance as good authority to submit to a court, consistent with other trends and citations which appear in any state's current common law.

The Desk Reference includes an Appendix of additional editor commentary and sample forms which particularly for Appendixes II and III are primarily provided for informational and discussion purposes only. Appendix I. offers a detailed compendium of the editor's collations of (statutory and commentary) authority and observations on the extent to which each code section and subsection is either "mandatory" or "default", namely, the extent to which the terms of the trust instrument itself may "alter" or "override" any such provision as provided in A.R.S. §14-10105B. The editor foresees this area as inviting a good deal of controversy and court involvement. Appendix II provides forms, documents and explanatory commentary to assist the practitioner to transition into working under the new code. Appendix III presents a sample of a husband and wife trust agreement as an occasion to discuss code provisions as they relate to the most common drafting issues. Finally, the Desk Reference concludes with a robust index relating to both statutory and commentary materials as an effort to enhance its value as a reference source.

Abbreviations--

The Desk Reference uses a number of abbreviations. Most notably they are:

ACTEC--American College Of Trust And Estate Counsel;
A.R.S.--Arizona Revised Statutes;
A.T.C.--Arizona Trust Code;
CERCLA--Comprehensive Environmental Response, Compensation And
Liability Act;
C.F.R.--Code Of Federal Regulations;
ERISA--Employee Retirement Income Security Act.
IRC--Internal Revenue code (as amended);
M.R.P.C.--Model Rules Of Professional Conduct;
PATS--Probate and Trust Section (of the State Bar of Arizona);
QTIP--Qualified Terminal Interest Property;
U.C.C.--Uniform Commercial Code;
R.U.P.I.A.--Revised Uniform Prudent Investor Act;
U.P.C.--Uniform Probate Code;
U.S.C.--United States Code;
U.T.C--Uniform Trust Code.

Reference work--As the title provides, this work is primarily intended as a practitioner's reference to the code (including its companion commentaries), and only secondarily as an instructional source. Its instructional value may be diminished by the observation of an apparent plethora of redundancy. This results from the editor's compulsion (i) to cross reference U.T.C. to A.T.C. citation because these versions are not uniformly identical, (ii) to also identify each section's subject by employing its descriptive caption, and (iii) to collate and refer to related code sections. This redundancy is to ease those using the text as a reference to quickly identify, understand and locate cross referenced material. The Reference may be better used as an instructional tool when referring to the appendixed materials.

Compendium of companion sources to the U.T.C. (a quick library)--

In developing the uniform code, the national commissioners on uniform state laws describe a list of companion reference works which a practitioner may wish to have on hand as a short hand library to coincide with the code. These sources are quoted with varying frequency, within the code's commentary by those commissioners on uniform state laws. Those sources include the following:

The American Law Institute--

Restatement Second Of Conflict Of Laws (1971);

Restatement Second of Property: Donative Transfers (1986);

Restatement Third Of Property: Servitudes (2000)-- Consists of two hardbound volumes (2000) and pocket parts thereto (2004);

Restatement Third Of Property: Wills And Other Donative Transfers--the commissioners' commentary refers to Tentative Drafts No. 1 (approved in 1995), No. 2 (approved in 1999), and No. 3 (approved in 2001)-- hardbound Volume 1 (1999) and Volume 2 (2003) and the two volume 2004 pocket parts are currently available for purchase;

Restatement Of Restitution--(1988)--Restitution First consists of Volumes 1 and 2 (1988) and 2004 pocket parts;

Restatement Second Of Torts (1979)--The most recent of the four volume set is Volume 1 (2005), Volume 2 (1999), Volume 3 (1994) and Volume 4 (18=998);

Restatement Second Of Trusts (1959);

Restatement Third Of Trusts (1999)--which added the following to the previously established Restatement Second Of Trusts: provisions dealing with the prudent investor rule (1990); provisions regarding the creation and validity of trusts (1996); and provisions dealing with the office of trustee, trust purposes, spendthrift provisions and creditor rights; the most current version of Restatement Third of Trusts consists of two hardbound volumes (2003) and the appendix to each volume (2004); also, Restatement Third Trusts: Prudent Investor Rule consists of one hardbound volume (1992);

Secondary Sources--

The Law Of Trusts, (4th ed. 1987) Astin W. Scott & William F. Fracher;

The Law of Trusts and Trustees, (Rev. 2 ed, 1983) George G. Bogert & George G. Bogert;

Statutes--

California Probate Code (Division 9, Sections 15000, et. seq);

Hague Convention On The Law Applicable To Trusts And On Their Recognition (July, 1, 1985).