§ 2403. Formation
(a) One or more persons may form an independent trust company in accordance with the provisions
of this chapter.
(b) The organizers forming an independent trust company shall apply to the Commissioner
for a certificate of authority on prescribed forms containing information as may be
required by the Commissioner. The application shall include the proposed name of the
business for approval under section 2404 of this title and the basic organizational documents including any operating agreement for the
company prepared in compliance with Title 11 or 11A.
(c) Upon receiving a completed application for a certificate of authority and the proposed
basic organizational documents, the Commissioner shall investigate and examine the
proposed independent trust company to determine whether it will be adequately staffed,
equipped, and able to furnish trust services and that its establishment and maintenance
will promote the general good of the State.
(d) If the Commissioner finds that the establishment and maintenance of the proposed trust
company will promote the general good of the State, the Commissioner shall deliver
to the organizers a certificate of authority under the Commissioner’s seal. The certificate
of authority, basic organizational documents except the operating agreement and the
organizational fee shall be transmitted to the Secretary of State, who shall thereupon
proceed according to the provisions of law. If the organizational documents are recorded
by the Secretary, the certificate of the Commissioner shall be recorded therewith.
(e) Each application for a certificate of authority shall be accompanied by an application
fee as provided in section 19 of this title for new financial institutions.
(f) If the proposed independent trust company fails to open for business within six months
after the date the certificate of authority is granted, the certificate of authority
shall be void. The Commissioner may extend the time within which the independent trust
company may open for business for good cause and upon written application filed prior
to the expiration of the six-month period.
(g) At the time it commences business, an independent trust company shall have unimpaired
capital in an amount not less than $250,000.00 or one-quarter of one percent of its
assets under management, whichever is greater. Thereafter, an independent trust company
shall maintain unimpaired capital in an amount not less than $250,000.00 or one-quarter
of one percent of its assets under management, whichever is greater, up to a maximum
of $1,000,000.00. The unimpaired capital and surplus of an independent trust company
shall be held as security for the faithful discharge of the fiduciary duties undertaken
as well as for the claims of other creditors. The Commissioner may from time to time
require or allow increases or decreases to the unimpaired capital otherwise required
by this subsection, up to such $1,000,000.00 maximum, as deemed necessary or desirable
for the protection of customers and the safety of the trust business. The safety and
soundness factors to be considered by the Commissioner in the exercise of such discretion
include:
(1) the nature and type of business conducted;
(2) the nature and degree of liquidity in assets held in a corporate or company capacity;
(3) the amount of fiduciary assets under management;
(4) the complexity of fiduciary duties and degree of discretion undertaken; and
(5) the extent and adequacy of internal controls.
(h) The Commissioner, in addition to the capital requirements provided in subsection (g)
of this section, may require any independent trust company authorized to do a trust
business in this State to post bond in an amount acceptable to the Commissioner. (Added 1997, No. 98 (Adj. Sess.), § 8b; amended 1999, No. 153 (Adj. Sess.), § 19, eff. Jan. 1, 2001; 2003, No. 105 (Adj. Sess.), § 11; 2009, No. 42, § 2; 2009, No. 137 (Adj. Sess.), § 1.)