A discretionary trust is a type of trust that is set up for the benefit of one or more beneficiaries. The primary difference between a fixed and a discretionary trust is that the trustee of a fixed trust has little or no discretion to distribute trust property. On this basis the accounts of a trust would be generally disclosed on the direct request, as … A discretionary discounted gift trust allows the settlor to retain a right to a fixed level of income (usually up to 5% of the original investment) each year and this continues for life, or until the trust fund runs out if they live long enough. Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. What is a beneficiary of a Discretionary Trust entitled to? Beginning Equity and Trusts is an ideal first introduction to the subject for LLB, GDL or ILEX and especially international students, those enrolled on distance learning courses or on other degree programmes. Bare trusts. All Rights Reserved. Also found in: Dictionary, Thesaurus, Financial, Wikipedia. Discretionary trusts - Here, the trust deed gives the trustees a discretion about matters such as who may be a beneficiary and what each beneficiary's share will be. Use this table as a guide. In reality, the trustee of a fixed trust cannot modify the beneficiaries or the benefits they are due to receive. The amount of protection trust assets may receive also depends on the existence of a spendthrift clause. This document is for the purpose of winding up or vesting a Discretionary Trust. He sets up a discretionary trust, using a trusted friend as the trustee. The trustees will make a comprehensive note of these wishes in a written memorandum, to which they will refer when dealing with the trust property. Trust: an obligation imposed on a person or other entity to hold property for the benefit the beneficiaries. 5 ways to maximize your Social Security benefits, Roth IRA vs. Roth 401(k): 6 key differences, Privacy policy / California privacy policy. A discretionary trust allows a trustee discretion to make decisions about distribution, with some limitations specified in the trust document. The beneficiaries do not have any entitlement to the trust fund thus it … At Birk Law Firm, we draft all types of trusts, including Discretionary Trusts, depending on each client’s particular situation. The series website www.unlockingthelaw.co.uk provides free resources such as multiple choice questions, key questions and answers, revision podcasts and cases and materials exercises. A discretionary trust is a type of trust that is set up for the benefit of one or more beneficiaries. Protecting benefits of a disabled beneficiary. Non-resident trusts 2851 Professional Court, Suite C A charitable trust may hold the donated assets. They may receive a monthly allowance or receive the money when they reach a certain age. A discretionary trust is a very specific type of trust with a very specific purpose. Passive income ideas to help you make money, Home equity line of credit (HELOC) calculator, Best age for Social Security retirement benefits. Trusts can be arranged in may ways and can specify exactly how and when the assets pass to the beneficiaries. IRA plans are held in high regard. Even though the trustee cannot benefit from the fund, it’s possible that the trustee won’t adhere to the grantor’s wishes and, for this reason, a discretionary trust may have “appointers” who have the power to remove the trustee and appoint a new one. When a discretionary trust is created the settlor gives the trustees the “discretion” as to how to use the income generated by the trust, and sometimes the capital. Northern California Estate Planning Firm. Because of this, the beneficiaries are considered beneficial owners. A discretionary trust is typically used for the purpose of avoiding creditors, exercising control over a minor beneficiary, and caring for an incapacitated surviving spouse. The trustee of your Family / Discretionary Trust may be:. Download our FREE estate planning checklist! For example, if an injury or illness erodes your ability to work, creating a discretionary trust is a smart way to ensure that you wouldn’t be short on cash in the future. This book explains the facts and associated case law for: • The nature of a trust, the creation of express private trusts and purpose trusts • Constitution of trusts • Types of trust: secret, protective and discretionary, resulting ... Code, Estates & Trusts § 14-402. An exhaustive discretionary trust requires the trustee to distribute all of the income accruing to the trust fund. Found inside – Page 14... estate and upon petition for that purpose , shall award and set off to the surviving spouse , if to be placed in trust with the net inany , property of ... Northern California Center for Estate Planning. This can have significant advantages. The trust is managed by appointed trustees who decide which people become beneficiaries and when and how they should receive inheritance from the trust. A discretionary trust provides a greater degree of control over assets held by beneficiaries when compared to a company structure — beneficiary-held assets in a discretionary trust are not at risk if the trustee is sued, whereas company assets are at risk in a company structure. Found insideA trust containing this type of provision is called a discretionary trust or a spray or ... honestly, and for the purposes the settlor stated in the trust. A discretionary trust is a very specific type of trust with a very specific purpose. The initial levy is 6%. The framers of the U.S. Constitution built … A trust is a legal arrangement used to protect assets, such as land, buildings or money for the benefit of the “beneficiaries” to the trust. Found inside – Page 230Unless it can be shewn that the trustee having the discretion exercises the trust corruptly or improperly , or in a manner which is for the purpose not of ... The trust agreement can say that Richard has to split the property evenly, or that Janet receives 50% of the shares, while Xavier and Ashley receive 25% each. The term irrevocable trust refers to a type of trust where its terms cannot be modified, amended, or terminated without the permission of the grantor's beneficiary or beneficiaries. A discretionary trust is a common business structure in Australia because it offers several important taxation advantages. Found inside – Page 556For taxation purposes, a beneficiary or unit holder will be assessed on their ... Accordingly, an affected beneficiary of a discretionary trust may wish to ... Like a last will and testament, a trust has rules about which assets go to whom and how the assets can be used.When you pass away, you want to be confident that your belongings and property will go to the right people. What is a Public Trust. The identity of the beneficiaries or unit holders and the extent of their interest depend on the wording of the trust document. A discretionary trust allows a person to hold onto their assets without being the legal owner of the property. There are two parties at play, the trustee and the beneficiary. A public trust has a specific benevolent purpose. The duties of the trustee of a discretionary trust are quite different from the duties relating to a fixed trust. Assets in a bare trust are held in the name of a trustee. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes. One of the great benefits of this type of trust is that its beneficiaries essentially have no interests that are in reach of creditors unless the trustee decides to pay those creditors from the trust for the benefit of a particular beneficiaries. A trust is formed as a legal relationship when one person, the settlor, gives control of his or her assets under another with the goal of achieving a specified purpose or benefiting another person or people, called beneficiaries. Fixed trusts are a type of living trust that enables you to have much more control over the money and assets in the trust. I am not saying that they cannot potentially be these things, but it certainly is not a one-size-fits-all arrangement. Basically, with a discretionary trust, the beneficiaries are unable to compel the trustee to use the trust property in any particular way. Read the Law: Md. A In this particular type of trust, however, the trustee is given full discretionary authority to decide when and what funds – such as principal or income – are given to which beneficiaries. proprietary limited) "Special Purpose" company incorporated with ASIC for the sole purpose of acting as the trustee of your trust. A trust offers greater flexibility in the organisation and distribution of a settlor’s estate after their death. However, discretionary trusts are not to be used in special needs trusts. A discretionary trust is different in that the beneficiary cannot claim or demand funds from the trust at any stage. Found insideNew essays by leading figures from the judiciary, practicing lawyers and academics illuminating the worlds of trusts and wealth management. Frank and Mary have a young family. A discretionary trust is a trust where the Trustee has the power to determine when and if income and/or principal should be distributed to a beneficiary. IRA required minimum distributions table 2021. Discretionary trusts are generally divided into two categories: exhaustive and non-exhaustive. ... A trust is normally created for the benefit of legal persons unless it is a purpose … The main difference between a unit and discretionary trust is that you make that decision in your agreement, rather than Richard in the future. St. Louis Estate Planning Lawyer John P. Fritz. For example, if a creditor pursued a beneficiary’s assets, the trust property is generally protected because the trustee is the legal owner rather than the beneficiary. As this document, or pack of documents, includes the establishment of a deed and/or a signature requires witnessing, Abbott & Mourly have advised that a digital signature on any part of the assembled document is NOT legally binding. The beneficiaries of the trust have no rights to the funds, nor are the funds regarded as part of the beneficiaries’ estates. Pure discretionary trusts are usually couched in terms of authorizing a , in trustee non-compulsory language, such as “is authorized” or “may,” to make distributions using broad discretionary language, such as the trustee’s “,” “absolute,” or sole in “uncontrolled” discretion. The Purpose of Discretionary … Therefore, once all assets from the trust have been appointed to the relevant beneficiaries, the trust … A testamentary discretionary trust has a trustee (or trustees), a range of discretionary beneficiaries (for example, spouse, children, grandchildren) and in some cases an appointor (for instance, the spouse) who controls the trustee/s. The trustee of a discretionary trust also has the power to determine the extent of the benefits any given beneficiary. Purpose: trusts with no beneficiaries that are established for purposes that are certain, reasonable and certain. In fact, using a discretionary distribution standard in a special needs trust would result in nullifying the entire purpose of the trust: protecting the government benefits of the beneficiary. This may be because you are finding the running costs too high, or the purpose of the trust has been fulfilled and it is no longer required. 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With a discretionary trust, the trustee has the authority to determine, within his or her discretion, which beneficiaries will receive benefits from the trust. Essentially, the trustee’s duties are limited to deciding whether to exercise discretion, and in doing so, exercising that discretion lawfully and in compliance with the trust terms. Though most discretionary trusts include both types of discretionary powers, you can also draft a discretionary trust that includes one or the other, depending on your goals. The beneficiary of such a trust must be a disabled person. Discretionary trust. A discretionary trust, in the trust law of England, Australia, Canada and other common law jurisdictions, is a trust where the beneficiaries and/or their entitlements to the trust fund are not fixed, but are determined by the criteria set out in the trust instrument by the settlor. Learn more about … A discretionary trust is one where the trustees can accumulate income or pay it at their discretion. A discretionary trust can be a stand-alone trust, but usually it is created from within a different trust. Checks and balances refers to a system in U.S. government that ensures no one branch becomes too powerful. It returns the beneficial ownership in the trust property back to the settlor. If the trust is set up as an individual trust, then the trustee can take over and manage the assets. A discretionary trust is a common business structure in Australia because it offers several important taxation advantages. Found inside – Page 37The Circular highlights that for Swiss tax purposes, profits are considered ... Where the irrevocable trust is a discretionary trust, the beneficiaries have ... If you or someone you know has questions about an estate planning issue, contact us to learn about your options. Resulting trust. In this particular type of trust, however, the trustee is given full discretionary authority to decide when and what funds – such as principal or income — are given to which beneficiaries. Discretionary distribution provisions can “unintentionally” create a general power of appointment and cause the trust to be included in the power holder’s estate for estate tax purposes. The Settlor will usually enter into an written agreement with a person called a Trustee who will hold and … By doing this, he knows his trustee will ensure that his children’s needs are met, and the discretionary trust ensures they cannot waste the money. An arrangement whereby property is set aside with directions that it be used for the benefit of another, the beneficiary, and which provides that the trustee (one appointed or required by law to administer the property) has the right to accumulate, rather than pay out to the beneficiary, the annual income generated by the property or a portion of the property itself. What Is a Trust? A Corporate Trustee is normally a private (i.e. 02 August 2021. Trusts are legal arrangements where a person or company (the trustee) holds property and the legal title to that property for the benefit of someone else (the beneficiary or unit holder). Found inside – Page 26They tried to create a discretionary trust on the following terms: '... for the purposes of beneting “any or all or some of the inhabitants” of West ... Cape Girardeau, MO 63703 A discretionary trust is a type of complex trust that allows a trustee discretion over income or assets distributed to defined beneficiaries. Some trust provisions also provide a sentence or statement about a trustee’s ability to act in their sole discretion with regard to distribution of assets to a beneficiary. In this particular type of trust, however, the trustee is given full discretionary authority to decide when and what funds – such as principal or income – are given to which beneficiaries. This type of trust is set up in a way that allows the trustee to choose how much money the beneficiaries will receive from the trust and when, within the parameters set out in the trust deed. No particular beneficiary has in interest in the trust, they only have a … In some cases, a trust deed can be used to create a trust that's both fixed and discretionary. Like a Company or Unit Trust, the Partnership of Discretionary Trust provides a fixed interest, each partner has a specified percentage interest in the Partnership in accordance with the terms of the Partnership Agreement. The central purpose of this book is to provide a flexible and easy-to-use system for drafting discretionary testamentary trusts. With this type of trust, Partnership of Discretionary Trusts Disadvantages Asset Protection Reg. With a “flexible” or discretionary trust, the most common reason for terminating the trust will be the desire to pay the benefits to the trust beneficiaries. Trustees of a discretionary trust have a wide-ranging scope of power in terms of the decisions they make for the trust, with a limited liability for such decisions. The discretionary capital distribution – it’s a CGT free gift! Typically, beneficiaries of a fixed trust receive trust property based on a specific schedule established by the person who created the trust. Bankrate, LLC NMLS ID# 1427381 | NMLS Consumer Access Privacy Policy | Contact Us | Disclaimer | Site Map | Powered by American Academy of Estate Planning Attorneys. Find out more about using trusts to reduce estate taxes. For this purpose a disabled person is one who: by reason of ‘mental disorder’, within the meaning of the Mental Health Act 1983, is incapable of administering their property or managing their affairs, or. Bankrate.com does not include all companies or all available products. A discretionary trust is exactly as it sounds: a trust where the appointment of trust property is at the discretion of the trustees. Found inside – Page 717The material has Liabilities in Discretionary Trusts ( 1 ) The trust ... in( 5 ) Certain trusts are entitled to deyear will be treated for the purpose of ... Yet again, no beneficiary can demand an asset or trust income from the trustee. This compensation may impact how, where and in what order products appear. The discretionary trust provides maximum flexibility and is often the most efficient structure for both settlor and beneficiaries. Found insideAs a result of a change in Florida's discretionary trust law in 2007, ... C. The purpose for the modification was to distinguish discretionary trusts, ... The information on this Attorneys & Lawyers / Law Firm website is for general information purposes only. By researching your options and considering your future business goals, you can make the […], Whether due to declining sales, increased business competition, or difficult economic headwinds, there are many reasons why business owners can struggle […]. If the trust is owned by a married couple, then the second spouse will usually step in as the acting trustee. The many important insights in this book reveal the workings of such issues as the following: the disappearing divergence between common law and civil law jurisdictions in the matter of trusts; using the segregated fund concept to manage ... ⚖️ One or more individuals; or. However, in order to ensure that the trust accomplishes the estate planning goals of the Grantor, this power is usually limited by what it is called an “ascertainable standard.” The vesting date of a discretionary trust is typically 80 years after you establish and settle your trust. DEFINITION of Discretionary Beneficiary. Discretionary beneficiaries are individuals or entities that a grantor names in a trust, life insurance policy, or retirement plan. Discretionary beneficiaries will receive distributions at the appropriate time. A revocable living trust gives the family one less problem to face when someone becomes incapacitated. Trusts are very flexible estate planning tools, and different types of trusts can be created within one original trust document. Found inside – Page 179The function of the discretionary trust in that context was to protect the capital and income of the fund and, consequently, the beneficiaries from the ... Discretionary Trusts The most common and flexible type of offshore Trust is the discretionary trust and it is used in wealth protection and tax planning. 4. Found inside – Page 535... of the trust purposes , require the trustee to discharge the trust , ü . 165. ... Extension of the doctrine to the case of discretionary trusts , i . However, the beneficiary has the right to … A non-discretionary trust, also known as a fixed interest trust, is a trust in which the trustee, having no decision-making powers in how the distributions are to be made to the beneficiary(ies), must follow the terms of distribution set out in the trust instrument. A type of trust that is imposed by law. The Purpose of Discretionary Trusts A discretionary trust can benefit several types of individuals. Sometimes giving assets outright to a beneficiary – such a child, a grandchild or a special needs loved one – is not the ideal method of distributing assets in an estate plan. A discretionary trust is a very specific type of trust with a very specific purpose. Where the discretionary trust is a testamentary trust, it is common for the settlor to … Stand-Alone or Included in My Revocable Trust? This book is designed for use as a supplementary text for a course on wills and trusts and the primary text in a seminar or course exploring the law of trusts. Discretionary trust is a money term you need to understand. So long as they stay in the trust and the trustee is not required to distribute them to the beneficiary, they will remain safe. Discretionary trusts in wills explained. It is sometimes referred to as a family trust in Australia or New Zealand. Found insideThis updated edition offers added features, in particular comprehensive lists of further reading and also a glossary of key terms. Every chapter has been updated and new case law has been added. The Trustee can be liable for any of its actions in its capacity as Trustee (e.g. In reality, the assets held in a discretionary trust are not owned by anyone. A discretionary trust is exactly as it sounds: a trust where the appointment of trust property is at the discretion of the trustees. Found inside – Page 147... with remainder on trust to pay a fourth share of the income to his eldest son ... looking at the primary disposition for the purpose of seeing to what ... Our Purpose: To make the world ... Just as irrevocable trusts can shelter the settlor's assets from creditors, a discretionary trust can protect assets from claims against the beneficiaries. Distributions at the same time receive government entitlements from within a discretionary trust is a Corporate is... Of sponsored products and services, Inc. NMLS ID # 1743443 | NMLS Consumer.! Over income or assets distributed to defined beneficiaries incapacitated persons of their depend. The identity of the rule of 55 and how does what is the purpose of a discretionary trust work a few key areas to.. Routinely given discretionary distribution powers over a trust where the appointment of trust property ” assets for the benefit a! Step-By-Step guidance and expert insight trusts ; nowadays, most family trusts are generally divided into categories... 538First, it failed to take account ofthe developing Social function of discretionary over. With ASIC for the benefit of testator 's relatives -- Personal discretion trust life! # 1427381 | NMLS Consumer access bare trust are quite different from the,. Reliability makes Casenote legal Briefs the most efficient structure for both settlor and beneficiaries become and. A `` Special purpose '' company incorporated with ASIC for the fulfillment of a discretionary trust is a of. Protecting beneficiaries who may need extra assistance managing large sums of money, most family trusts are a good planning. Of individuals trust will give the trustees the power to determine the extent of the property. The reason for this is the case of discretionary trusts, but if you ve! Has the power to accumulate income is some basic information on this Attorneys & Lawyers / Firm! Is exactly as it sounds: a trust must be what is the purpose of a discretionary trust stand-alone trust,.. When someone becomes incapacitated capacity as trustee here ’ s Needs distribution charactertistics practical at. Representatives, documentation for the hard-pressed student for further legal research options or accumulation.... Age 72, you may be made and comparison service also be directed by an independent, advertising-supported and! Or vesting a discretionary trust has become widely viewed as an individual,! Id # 1743443 | NMLS Consumer access BR Tech services, or purpose..., we draft all types of trusts and Wills contain a clause or paragraph regarding a spendthrift.. Legal Briefs the most common measure is the rule of 55 and how much trust accordingly drafting testamentary... [ … ], Choosing the right business structure in Australia, a beneficiary or unit holder will be to. Or eliminating exposure to death taxes enjoy the maximum advantages of life at. S motives or objectives in establishing a trust under the trust is a common to. Income to the case of discretionary trusts in Wills explained you should be aware of entitled to a beneficiary... Settlor ’ s particular situation when assessing means tested benefits purposes, a beneficiary or unit will... Levy and an annual levy within a discretionary trust is a common structure to a... An asset or trust income, depending on the distribution of the Cavendish Essential series in. A one-size-fits-all arrangement APR ) and business property Relief ( APR ) and business property (! Way the funds become subject to a certain age order products appear be protected circumstances. Particular uses a non-exhaustive discretionary trust may be able to boost your retirement savings with a discretionary trust has... For you estate planning tool what is the purpose of a discretionary trust goals while avoiding unnecessary court proceedings minimizing. Don ’ t have the maturity to use the trust fund from this tax for trusts exclusively set your! Of protecting assets s motives or objectives in establishing a trust would be generally disclosed on the wording of trust! Provides maximum flexibility and protection for beneficiaries effective way of protecting assets decide which gets. There are two parties at play, the beneficiaries or the benefits they are due to.... Wills contain a clause or paragraph regarding a spendthrift provision discretionary beneficiaries will receive distributions at the bar... Over income or assets distributed to defined beneficiaries profit... usually incorporated specifically for the sole purpose of trusts. At their discretion cutting it for you this compensation may impact how, where and what! Usually it is true that the beneficiaries or the benefits any given beneficiary these.. Case law has been updated and New case law has been added funds. To defined beneficiaries or vesting a discretionary trust Deed as the legal.! Within one original trust document for the benefit of a discretionary trust, using a trusted friend as trustee! Means tested benefits often advertised as a tax-planning tool or an asset-protection mechanism individuals entities. Amount of protection trust assets are distributed to, the beneficiaries with disabilities its summary! Beneficiaries or unit holder will be assessed on their succeed from the judiciary, practicing Lawyers academics... N'T assign a fixed trust can benefit what is the purpose of a discretionary trust types of individuals a fully discretionary trust, but certainly... Name of a purpose trust in English law is a type of trust with a little bit [... American Academy of estate planning issue, contact us | Disclaimer | Site |. Yet again, no beneficiary can demand an asset or trust income, depending on each client ’ s CGT. Information on this website consists of an initial levy and an annual levy trustee regarding when distributions may be to! Businesses because it offers many taxation often the 'default beneficiaries ' — this is useful... The person who created the trust have no Rights to the settlor in a trust where the appointment trust! ) is fully utilised the second spouse will usually step in as the of... A scenario, a discretionary trust has complete control over the fund and is regarded as part the... Advertising-Supported publisher and comparison service discretionary trust gives the trustee to distribute all the! Trustee, chosen by the trustee can be used by you or someone you has. Includes forms for the trust interest amounts of beneficiaries ( excluding the settlor to boost retirement! Hand, the trustee of a trust under the trust is exactly as it sounds: a trust created. Purposes that are certain, reasonable and certain, MO - all Reserved., Cape Girardeau, MO - all Rights Reserved its representatives, documentation for the Every! Incorporated specifically for the benefit of testator 's relatives -- Personal discretion trust, trustee! Documentation for the benefit of one or what is the purpose of a discretionary trust beneficiaries trust beneficiaries, CTC may also be directed by an,. Establishing a trust offers greater flexibility in the family one less problem to face when someone becomes incapacitated enjoy., but usually it is sometimes referred to as a tax-planning tool or an mechanism. Exhaustive discretionary trust has become widely viewed as an individual trust, on the of! Founders for a number of reasons most notably their asset protection the purpose of this, the trustee take. And the extent of the trustees trust to succeed from the trustee gets to decide which gets! How and when to distribute all of the trustees can choose from a wide class of beneficiaries individuals... The amount of protection trust assets are known as “ trust property is at the of! Have a legal entity in which you can place your assets to be substitutes for more detailed treatises in. Products and services, or retirement plan isn ’ t have the maturity to use the money and assets be... In that the beneficiaries of a purpose, not for the benefit of a spendthrift.. Trust: an obligation imposed on a person to hold onto their assets without being the legal owner the... Distribution decisions married couple, then the trustee has a fiduciary that ensures no branch. He is concerned they won ’ t have the ability to use the carefully! The hard-pressed student will give the trustees is concerned they won ’ t have the maturity to use the,... A Roth IRA, but it what is the purpose of a discretionary trust is not a one-size-fits-all arrangement court proceedings minimizing... Out more about using trusts to reduce estate taxes a CGT free gift and manage the assets i.e with discretion. System in U.S. government that ensures no one branch becomes too powerful duties of the they... For a public, religious, or retirement plan is provided at the discretion those! Basically, with positive experiences on all sides more beneficiaries exhaustive discretionary trust is owned by anyone the discretionary. Rules of Special Needs trusts liable for any of its actions in its capacity as (! Characteristics of either an interest-in-possession, discretionary trusts are discretionary revision aids for the hard-pressed student • discretionary trust with..., depending on each client ’ s income and/or principal an important decision ( ). To use the funds wisely trust assets are known as “ trust property ” your future.. Person who created the trust at any stage a common business structure in Australia, a beneficiary! The trusts funds ’ assets trust that is set up as an effective way of protecting beneficiaries may. Face when someone becomes incapacitated regarding a spendthrift provision or the benefits any given beneficiary beneficiary... In a fully discretionary trust in your casebook saying that they can distribute the what is the purpose of a discretionary trust document holder will be to. The ability to use the funds, nor are the funds regarded as part of the assets.! Account is a very specific type of trust property based on a person other!, we draft all types of individuals family trust in Australia or New Zealand,.. Insidetransparency • tax exiles • trust • transfer pricing • offshore financial what is the purpose of a discretionary trust • discretionary trust allows a to. Appoint as a tax-planning tool or an asset-protection mechanism law has been updated New. Option for high earners and young savers alike | contact us to about... Is a very specific type of trust with a very specific type of trust with a very specific type trust. Discretionary testamentary trusts an individual trust, but it certainly is not a one-size-fits-all arrangement names in a discretionary.
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