1976 South Carolina Code of Laws
Updated through the end of the 2001 Session
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Title 62 - South Carolina Probate Code
PART 1. TRUST ESTATES
SECTION 62-7-101. Declarations or creations of trusts in land shall be in writing.
All declarations or creations of trusts or confidences of any lands, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such uses or trust or by his last will in writing, or else they shall be utterly void and of no effect.
SECTION 62-7-102. Grants and assignments of trusts shall be in writing.
All grants and assignments of any trust or confidence shall be in writing, signed by the party granting or assigning them or shall be made by last will or else shall be utterly void and of no effect.
SECTION 62-7-103. Trusts of land arising, transferred, or extinguished by implication of law.
When any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law or be transferred or extinguished by act or operation of law, such trust or confidence shall be of like force and effect as it would have been without the two previous sections of this Code.
SECTION 62-7-104. Word "writing" shall include typewriting.
The word "writing" used in this part shall be construed to include typewriting.
SECTION 62-7-105. Religious, educational, charitable, or benevolent trusts shall not be void because of discretion vested in trustee or establishment of perpetuities.
No gift, grant, bequest, or devise, whether in trust or otherwise, to religious, educational, charitable, or benevolent uses or for the purpose of providing for the care or maintenance of any part of any public cemetery shall be invalid because the instrument confers upon the trustee discretionary power in the selection and designation of the objects or beneficiaries of such trust or in carrying out the purposes thereof or by reason of contravening any statute or rule against perpetuities.
SECTION 62-7-106. Religious, educational, or charitable trusts created by nonresidents shall be valid.
Every such religious, educational, or charitable trust created by any person domiciled in another state, which shall be valid under the laws of the state of the domicile of such creator or donor, shall be held in all respects valid under the laws of this State, even though one or more of the trustees named in the instrument creating the trust shall be domiciled in another state or one or more of the beneficiaries named in the trust shall reside or be located in a foreign state. This section shall apply to all trusts heretofore or hereafter created in which one or more of the beneficiaries or objects of such trust shall reside or be located in this State.
SECTION 62-7-107. Estate and possession of trust estates shall be in beneficiaries thereof.
When any person shall be seized of any lands, tenements, rents, reversions, remainders, or other hereditaments to the use, confidence, or trust of any other person or of any body politic by reason of any bargain, sale, feoffment, covenant, contract, agreement, will, or otherwise, the person or body politic that shall have such use, confidence, or trust, in fee simple, fee tail, for term of life or for years or otherwise or any use, confidence, or trust in remainder or reversion, shall be deemed and adjudged in lawful seizin, estate and possession of and in such lands, tenements, rents, reversions, remainders, and hereditaments, with their appurtenances, to all intents, constructions, and purposes in law of and in such like estates as they shall have in use, trust, or confidence of or in them.
SECTION 62-7-108. Several seized jointly to use of one or more of them.
When several persons shall be jointly seized of any lands, tenements, rents, reversions, remainders, or other hereditaments to the use, confidence, or trust of any of them that be so jointly seized, such person or persons who shall have any such use, confidence, or trust in any such lands, tenements, rents, reversions, remainders, or hereditaments shall have such estate, possession, and seizing of and in such lands, tenements, rents, reversions, remainders, and other hereditaments only to him or them that shall have any such use, confidence, or trust, in like nature, manner, form, condition, and course as he or they had before in the use, confidence, or trust of such lands, tenements, or hereditaments, saving and reserving to all and singular persons and bodies politic, their heirs and successors, other than such person or persons who are seized of such lands, tenements, or hereditaments to any use, confidence, or trust, all such right, title, entry, interest, possession, rents, and action as they or any of them had or might have had without this section and also saving to all and singular those persons and their heirs who are seized to any use all such former right, title, entry, interest, possession, rents, customs, services, and action as they or any of them might have had to his or their own proper use in or to any lands, tenements, rents, or hereditaments whereof they are seized to any other use, anything contained in this chapter to the contrary notwithstanding.
SECTION 62-7-109. Beneficiaries' title to rent out of trust shall be same as conveyed by grant.
When several persons are seized of and in any lands, tenements, or hereditaments, in fee simple or otherwise, to the use and intent that some other person shall have and receive yearly to him and to his heirs one annual rent out of such lands and tenements and some other person one other annual rent, to him and his assigns for a term of life or years or for some other special time, according to such intent and use as has been before declared, limited, and made thereof, the persons, their heirs and assigns, that have such use and interest to have and receive any such annual rents out of any lands, tenements, or hereditaments, and every one of them, their heirs and assigns, shall be deemed to be in the possession and seizin of such rent, of and in such like estate as they had in the title, interest, or use of such rent or profit, and as if a sufficient grant, or other lawful conveyance had been made and executed to them by such as were seized to the use or intent of any such rent to be had, made, or paid, according to the trust and intent thereof. All such persons as have or shall have any title, use, and interest in or to any such rent or profit shall have all suits, entries, and remedies for such rents, according to such conditions, pains or other things, limited and appointed, upon the trust and intent or payment or surety of such rent.
SECTION 62-7-110. Trusts shall be assets in the hands of heirs.
If any cestui que trust shall die leaving a trust in fee simple to descend to his heir such trust shall be deemed and taken, and is hereby declared to be, assets by descent and the heir shall be liable to and chargeable with the obligation of his ancestors for and by reason of such assets as fully and amply as he might or ought to have been if the estate in law had descended to him in possession in like manner as the trust descended, any law, custom, or usage to the contrary in any wise notwithstanding.
SECTION 62-7-111. Heir shall not be chargeable out of his own estate for debts of his ancestor.
No heir that shall become chargeable by reason of any estate or trust made assets in his hand by Section 62-7-110 shall, by reason of any kind of plea or confession of the action, suffering judgment by default or any other matter, be chargeable to pay the condemnation out of his own estate but execution shall be sued of the whole estate so made assets in his hands by descent in whosesoever hands it shall come after the commencement of the action.
SECTION 62-7-112. Revocable inter vivos trust; creation; effect.
A revocable inter vivos trust may be created either by declaration of trust or by a transfer of property and is not rendered invalid because the trust creator retains substantial control over the trust including, but not limited to, (1) a right of revocation, (2) substantial beneficial interests in the trust, or (3) the power to control investments or reinvestments. Nothing herein, however, shall prevent a finding that a revocable inter vivos trust, enforceable for other purposes, is illusory for purposes of determining a spouse's elective share rights under Section 62-2-201 et seq. A finding that a revocable inter vivos trust is illusory and thus invalid for purposes of determining a spouse's elective share rights under Section 62-2-201 et seq. shall not render that revocable inter vivos trust invalid, but would allow inclusion of the trust assets as part of the probate estate of the trust creator only for the purpose of calculating the elective share and would make available the trust assets for satisfaction of the elective share only to the extent necessary under Section 62-2-207.
PART 2. JURISDICTION OF COURTS CONCERNING TRUSTS
SECTION 62-7-201. Court; exclusive jurisdiction of trusts.
(a) Subject to the provisions of Section 62-1-302(c), the probate court has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of trusts. Proceedings which may be maintained under this section are those concerning the administration and distribution of trusts, the declaration of rights, and the determination of other matters involving trustees and beneficiaries of trusts. These include, but are not limited to, proceedings to:
(1) appoint or remove a trustee;
(2) review trustees' fees and to review and settle interim or final accounts;
(3) ascertain beneficiaries, determine any question arising in the administration or distribution of any trust including questions of construction of trust instruments, to instruct trustees, and determine the existence or nonexistence of any immunity, power, privilege, duty, or right.
(b) A proceeding under this section does not result in continuing supervisory proceedings. The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee's fees and other obligations of a trust, acceptance and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously consistent with the terms of the trust, free of judicial intervention and without order, approval, or other action of any court, subject to the jurisdiction of the court as invoked by interested parties or as otherwise exercised as provided by law.
SECTION 62-7-202. Trust proceedings; venue.
Venue for proceedings under Section 62-7-201 involving trusts is in the place in which the trust has its principal place of administration. Unless otherwise designated in the trust instrument, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept, or at the trustee's residence if he has no such place of business. In the case of co-trustees, the principal place of administration, if not otherwise designated in the trust instrument, is (1) the usual place of business of the corporate trustee if there is but one corporate co-trustee, or (2) the usual place of business or residence of the individual trustee who is a professional fiduciary if there is but one such person and no corporate co-trustee, and otherwise (3) the usual place of business or residence of any of the co-trustees as agreed upon by them.
SECTION 62-7-203. Trust proceedings; dismissal of matters relating to foreign trusts.
The court will not, over the objection of a party, entertain proceedings under Section 62-7-201 involving a trust registered or having its principal place of administration in another state, unless (1) when all appropriate parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration or (2) when the interests of justice otherwise would seriously be impaired. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state in which the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.
SECTION 62-7-204. Court; concurrent jurisdiction of litigation involving trusts and third parties.
(A) The probate court has concurrent jurisdiction with the circuit courts of this State of actions and proceedings to determine the existence or nonexistence of trusts created other than by will, of actions by or against creditors or debtors of trusts, and of other actions and proceedings involving trustees and third parties. Venue is determined by the rules generally applicable to civil actions.
(B) The probate court has concurrent jurisdiction with the circuit courts of this State over attorney's fees. Attorney's fees may be set at a fixed or hourly rate or by contingency fee.
SECTION 62-7-205. Proceedings for review of employment of agents and review of compensation of trustee and employees of trust.
On petition of an interested person, after notice to all interested persons, the court may review the propriety of employment of any person by a trustee including any attorney, auditor, investment advisor or other specialized agent or assistant, and the reasonableness of the compensation of any person so employed, and the reasonableness of the compensation determined by the trustee for his own services. Any person who has received excessive compensation from a trust may be ordered to make appropriate refunds. The provisions of this section do not apply to the extent there is a contract providing for the compensation to be paid for the trustee's services or if the trust directs otherwise.
SECTION 62-7-206. Trust proceedings; initiation by notice; necessary parties.
Proceedings under Section 62-7-201 are initiated by filing a petition in the court and giving notice pursuant to Section 62-1-401 to interested parties. The court may order notification of additional persons. A decree is valid as to all who are given notice of the proceeding though fewer than all interested parties are notified.
SECTION 62-7-207. Trustees; eligibility of nonresident corporations and individuals.
(a) No corporation created by another state of the United States or by any foreign state, kingdom, or government, and no corporation created under the laws of the United States and not having a place of business in the State of South Carolina shall be eligible or entitled to qualify, serve, or hold title to property in this State as testamentary trustee of an estate of any person domiciled in this State at the time of his death, whether the decedent shall die testate or intestate, except, however, such foreign corporations may act as testamentary trustee in this State if:
(1) it has a bona fide capital of at least two hundred fifty thousand dollars actually paid in;
(2) it is authorized to act as testamentary trustee in the state in which it is incorporated or if such foreign corporation be a national banking association in the state in which it has its principal place of business; and
(3) any bank or other corporation organized under the laws of this State or a national banking association having its principal place of business in this State is permitted by law to act as testamentary trustee in the state in which such foreign corporation seeking to act in this State is organized or in which it has its principal place of business if it is a national banking association without further showing or qualification other than that it is authorized to act in such fiduciary capacity in this State and upon compliance with the laws of such other state, if any, concerning service of process on nonresident fiduciaries. No officer, employee, or agent of any such foreign corporation shall be eligible or entitled to serve as testamentary trustee in this State whether such officer, employee, or agent is a resident or a nonresident of this State if such officer, employee, or agent is acting as testamentary trustee on behalf of any such foreign corporation except when such foreign corporation itself shall be eligible to so serve.
(b) No letters of appointment of a trustee shall be granted or issued to any nonresident individual by the court unless such applicant for such appointment as trustee shall first file with the court where such application for appointment is made, his consent in writing that service of all claims, demands, debts, dues, summons, and any other process of pleadings, in suits or actions, relating to the administration of the estate in his charge in this State, may be made by service upon such resident of such county as may be appointed in such written instrument and, in the event of the death, removal, resignation, absence from the State, or any other inability to obtain service upon such agent named in such written instrument or any successor named by similar instrument filed with the court upon the probate judge of such county. Nothing herein contained shall require a nonresident trustee named as such trustee under a will executed at the time when such trustee is a nonresident to make reports to the court in this State or shall prevent an executor in administering an estate from paying any legacy so directed under the will to such foreign trustee.
SECTION 62-7-208. When conveyance from infant trustee or mortgagee is permissible.
Any person under the age of eighteen years, having estates in lands, tenements, or hereditaments only in trust for others or by way of mortgage, may by the direction of the court, signified by an order made upon hearing all parties concerned, on the petition of the person for whom such infant shall be seized or possessed in trust or of the mortgagor or guardian of such infant or person entitled to the monies secured by or upon any such lands, tenements, or hereditaments whereof such infant is or shall be seized or possessed by way of mortgage, or of the person entitled to the redemption thereof, convey and assure to any other person any such lands, tenements, or hereditaments in such manner as the court shall by such order so to be obtained direct.
SECTION 62-7-209. Effect of such conveyance.
Such conveyance or assurance, to be had and made as stated in Section 62-7-208, is as effectual in law, to all intents and purposes, as if the infant was, at the time making such conveyance or assurance, of the full age of eighteen years.
SECTION 62-7-210. Infant trustee or mortgagee may be compelled to make conveyance.
Every such infant, being only trustee or mortgagee as stated in Section 62-7-208, may be compelled by any such order, so as herein stated to be obtained, to make such conveyance or assurance, as stated herein, in like manner as trustees or mortgagees of full age are compellable to convey or assign trust estates or mortgages.
SECTION 62-7-211. Division or consolidation of trusts; application of section.
Upon petition by a trustee, beneficiary, or any interested party for good cause shown, the court, after a hearing on notice to all interested parties, in that manner as the court may direct, may divide a trust into two or more single trusts or consolidate two or more trusts into a single trust, upon those terms and conditions as it considers appropriate, provided the consolidation or division satisfies the court that:
(1) consolidation or division is not inconsistent with the intent of the trustor with regard to any trust to be consolidated or divided;
(2) consolidation or division would facilitate administration of the trusts; and
(3) consolidation or division would be in the best interests of all beneficiaries and not materially impair their respective interests.
This section applies to all trusts whenever created, whether inter vivos or testamentary, created by the same or different instruments, by the same or different persons and regardless of where created or administered.
This section does not limit the right of a trustee acting in accordance with the applicable provisions of the governing instrument to divide or consolidate trusts.
PART 3. DUTIES AND LIABILITIES OF TRUSTEES
SECTION 62-7-301. General Duties Not Limited.
Except as specifically provided, the general duty of the trustee to administer a trust expeditiously for the benefit of the beneficiaries is not altered by this Code.
SECTION 62-7-302. Uniform Prudent Investor Act.
(A) This section may be cited as the South Carolina Uniform Prudent Investor Act.
(B)(1) Except as otherwise provided in item (2), a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule in this section.
(2) The prudent investor rule is a default rule that may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the provisions of the trust.
(C)(1) A trustee shall invest and manage trust assets as a prudent investor would by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
(2) A trustee's investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
(3) A trustee shall consider in investing and managing trust assets those circumstances of the following as are relevant to the trust or its beneficiaries:
(a) general economic conditions;
(b) the possible effect of inflation or deflation;
(c) the expected tax consequences of investment decisions or strategies;
(d) the role that each investment or course of action plays within the overall trust portfolio, including financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;
(e) the expected total return from income and the appreciation of capital;
(f) other resources of the beneficiaries;
(g) needs for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) an asset's special relationship or special value to the purposes of the trust or to one or more of the beneficiaries.
(4) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.
(5) A trustee may invest in any kind of property or type of investment consistent with the standards of this section.
(6) A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise.
(D) A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.
(E) Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust and with the requirements of this section.
(F) A trustee shall:
(1) invest and manage the trust assets solely in the interest of the beneficiaries;
(2) act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries if a trust has two or more beneficiaries;
(3) incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee in investing and managing trust assets.
(G) Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight.
(H)(1) A trustee may delegate investment and management functions if it is prudent to do so under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
(a) selecting an agent;
(b) establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
(c) periodically reviewing the actions of the agent to monitor his performance and compliance with the terms of the delegation.
(2) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
(3) A trustee who complies with the requirements of item (1) is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.
(4) By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this State, an agent submits to the jurisdiction of the courts of this State.
(I) The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified, authorize any investment or strategy permitted pursuant to this section: "investments permissible by law for investment of trust funds", "legal investments", "authorized investments", "using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital", "prudent man rule", "prudent trustee rule", "prudent person rule", and "prudent investor rule".
(J)(1) Notwithstanding provisions of this section to the contrary, the duties of a trustee with respect to acquiring a contract of insurance upon the life of the trustor or upon the lives of the trustor and the trustor's spouse, children, or parents do not include a duty to:
(a) determine whether the contract is or remains a proper investment;
(b) exercise policy options available under the contract; or
(c) diversify the contract.
(2) The trustee is not liable to the beneficiaries of the contract of insurance or to another party for loss arising from this subsection.
(3) Except as specifically provided in the trust instrument, the provisions of this subsection apply to trust established before or after the effective date of this subsection and to a life insurance policy acquired by the trustee before or after the effective date of this section.
(K) This section applies to "charitable remainder trusts". " Charitable remainder trust" means a trust that provides for a specified distribution at least annually for either life or a term of years to one or more beneficiaries, at least one of which is not a charity with an irrevocable remainder interest to be held for the benefit of, or paid over to, charity.
(L) This section must be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among the States enacting it.
SECTION 62-7-303. Duty to inform and account to beneficiaries.
From the time at which a trust becomes irrevocable, the trustee shall keep the beneficiaries of the trust reasonably informed of the trust and its administration and, in addition:
(a) within thirty days after his acceptance of the trust, the trustee shall inform in writing the current beneficiaries and if possible one or more persons who under Section 62-1-403 may represent beneficiaries with future interest of his name and address;
(b) upon reasonable request, the trustee shall provide the beneficiary with a copy of the terms of the trust which describe or affect his interest and with relevant information about the assets of the trust and the particulars relating to the administration;
(c) upon reasonable request, a beneficiary is entitled to a statement of the accounts of the trust annually and on termination of the trust or change of the trustee.
SECTION 62-7-304. Duty to provide bond.
A trustee need not provide bond to secure performance of his duties unless required by the terms of the trust, or requested by a beneficiary and found by the court to be necessary to protect the interests of the beneficiaries who are not able to protect themselves and whose interests otherwise are not adequately represented. On petition of the trustee or other interested person the court may excuse a resubstitution of another bond with the same or different sureties. If bond is required, it shall be filed in the court in the place in which the trust has its principal place of administration in amounts and with sureties and liabilities as provided in Sections 62-3-604 and 62-3-606 relating to bonds of personal representatives.
SECTION 62-7-305. Trustee's duties; appropriate place of administration, deviation.
A trustee is under a continuing duty to administer the trust according to the objectives of the trustor at a place appropriate to the purposes of the trust and to its sound, efficient management. If the principal place of administration becomes inappropriate for any reason, the court may enter any order furthering efficient administration and the interests of beneficiaries, including, if appropriate, removal of the trustee and appointment of a trustee in another state. Trust provisions relating to the place of administration and to changes in the place of administration or of trustee control unless compliance would be contrary to efficient administration or the purposes of the trust. Views of adult beneficiaries shall be given weight in determining the suitability of the trustee and the place of administration.
SECTION 62-7-306. Personal liability of trustee to third parties.
(a) Unless otherwise provided in the contract, a trustee is not personally liable on contracts properly entered into in his fiduciary capacity in the course of administration of the trust estate unless he fails to reveal his representative capacity or identify the trust estate in the contract.
(b) A trustee is personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if he is personally at fault.
(c) Claims based on contracts entered into by a trustee in his fiduciary capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in his fiduciary capacity, whether or not the trustee is personally liable therefor.
(d) The question of liability as between the trust estate and the trustee individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.
SECTION 62-7-307. Limitations on proceedings against trustees after final account.
Unless previously barred by adjudication, consent, or limitation, any claim against a trustee for breach of trust is barred as to any beneficiary who has received a final account or other statement fully disclosing the matter and showing termination of the trust relationship between the trustee and the beneficiary unless a proceeding to assert the claim is commenced within one year after receipt of the final account or statement. In any event and notwithstanding lack of full disclosure a trustee who has issued a final account or statement received by the beneficiary and has informed the beneficiary of the location and availability of records for his examination is protected after three years. A beneficiary is deemed to have received a final account or statement if, being an adult, it is received by him personally or if, being a minor or disabled person, it is received by his representative as described in Section 62-1-403(1) and (2).
SECTION 62-7-401. Short title.
This part may be cited as the South Carolina Uniform Principal and Income Act.
SECTION 62-7-402. Definitions.
As used in this part:
(1) "Accounting period" means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends.
(2) "Beneficiary" includes, in the case of a decedent's estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
(3) "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function.
(4) "Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in Section 62-7-410 through Section 62-7-424.
(5) "Income beneficiary" means a person to whom net income of a trust is or may be payable.
(6) "Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion.
(7) "Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.
(8) "Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this part to or from income during the period.
(9) "Person" means an individual, a corporation, a business trust, an estate, a trust, a partnership, a limited liability company, an association, a joint venture, a government or a governmental subdivision, an agency, or an instrumentality; a public corporation, or other legal or commercial entity.
(10) "Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates.
(11) "Remainder beneficiary" means a person entitled to receive principal when an income interest ends.
(12) "Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.
(13) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.
SECTION 62-7-403. Allocation of receipts and disbursements.
(A) In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of Sections 62-7-405 and 62-7-409, a fiduciary:
(1) shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this part;
(2) may administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this part;
(3) shall administer a trust or estate in accordance with this part if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
(4) shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this part do not provide a rule for allocating the receipt or disbursement to or between principal and income.
(B) In exercising the power to adjust pursuant to Section 62-7-404(A) or a discretionary power of administration regarding a matter within the scope of this part, whether granted by the terms of a trust, a will, or this part, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this part is presumed to be fair and reasonable to all of the beneficiaries.
SECTION 62-7-404. Adjustments between principal and income.
(A) A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust's income, and the trustee determines, after applying the provisions in Section 62-7-403(A), that the trustee is unable to comply with Section 62-7-403(B).
(B) In deciding whether and to what extent to exercise the power of adjustment in subsection (A), a trustee shall consider all factors relevant to the trust and its beneficiaries, including:
(1) nature, purpose, and expected duration of the trust;
(2) intent of the settlor;
(3) identity and circumstances of the beneficiaries;
(4) needs for liquidity, regularity of income, and preservation and appreciation of capital;
(5) assets held in the trust and the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property and the extent to which an asset is used by a beneficiary, and whether an asset was purchased by the trustee or received from the settlor;
(6) net amount otherwise allocated to income and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
(7) terms of the trust and whether and to what extent they give the trustee the power to, or prohibit him from, invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;
(8) actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
(9) anticipated tax consequences of an adjustment.
(C) A trustee may not make an adjustment:
(1) that diminishes the income interest in a trust that requires all of the income to be paid at least annually to a surviving spouse and for which an estate tax or gift tax marital deduction is allowed, in whole or in part, if the trustee did not have the power to make the adjustment;
(2) that reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
(3) that changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
(4) from any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
(5) if possessing or exercising the power to make an adjustment is determinative in causing an individual to be treated as the owner of all or part of the trust for income tax purposes;
(6) if possessing or exercising the power to make an adjustment is determinative in causing all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both;
(7) if the trustee is a beneficiary of the trust; or
(8) if the trustee is not a beneficiary, but the adjustment benefits the trustee directly or indirectly.
(D) If subsection (C)(5), (6), (7), or (8) applies to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust.
(E) A trustee may release the entire power of adjustment in subsection (A) or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power causes a result described in subsections (C)(1) through (6) or (C)(8) or if the trustee determines that possessing or exercising the power may deprive the trust of a tax benefit or impose a tax burden not contemplated in subsection (C). The release may be permanent or for a specified period, including a period measured by the life of an individual.
(F) Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment in subsection (A).
SECTION 62-7-405. Determinations of income and principal; distributions upon death of decedent or end of an income interest in a trust.
After a decedent dies, in the case of an estate, or after an income interest in a trust ends, a fiduciary:
(1) of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary pursuant to Sections 62-7-407 through 62-7-430 which apply to trustees and the provisions of item (5). The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property;
(2) shall determine the remaining net income of a decedent's estate or a terminating income interest pursuant to Sections 62-7-407 through 62-7-430 which apply to trustees and by:
(a) including in net income all income from property used to discharge liabilities;
(b) paying from income or principal, in the fiduciary's discretion, fees of attorneys, accountants, and fiduciaries, court costs and other expenses of administration, and interest on death taxes; except that the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income does not cause the reduction or loss of the deduction; and
(c) paying from principal all other disbursements made or incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law;
(3) shall distribute to a beneficiary who receives a pecuniary amount outright the interest or other amount provided by the will, the terms of the trust, or applicable law from net income as determined by item (2) or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will;
(4) shall distribute the net income remaining after distributions required by item (3) in the manner pursuant to Section 62-7-406 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust; and
(5) may not reduce principal or income receipts from property described in item (1) because of a payment pursuant to Sections 62-7-424 and 62-7-425 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.
SECTION 62-7-406. Determination and distribution of net income.
(A) Each beneficiary described in Section 62-7-405(4) is entitled to receive a portion of the net income equal to his fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.
(B) In determining a beneficiary's share of net income, the:
(1) beneficiary is entitled to receive a portion of the net income equal to his fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations.
(2) fractional interest of the beneficiary in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust.
(3) fractional interest of the beneficiary in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation; and
(4) distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
(C) If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.
(D) A trustee may apply the provisions of this section, to the extent that the trustee considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.
SECTION 62-7-407. Beginning and end of income interests.
(A) An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
(B) An asset becomes subject to a trust on the date:
(1) it is transferred to the trust, in the case of an asset that is transferred to a trust during the transferor's life;
(2) the testator dies, in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the estate; or
(3) the individual dies, in the case of an asset that is transferred to a fiduciary by a third party because of the death of the individual.
(C) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined pursuant to subsection (D), even if there is an intervening period of administration to wind up the preceding income interest.
(D) An income interest ends on the day before an income beneficiary dies or another terminating event occurs or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.
SECTION 62-7-408. Allocation of income receipts and disbursements.
(A) A trustee shall allocate an income receipt or disbursement, other than one subject to Section 62-7-405(1), to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
(B) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.
(C) An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this part. Distributions to shareholders or other owners from an entity subject to Section 62-7-410 are considered due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.
SECTION 62-7-409. Undistributed income.
(A) In this section, "undistributed income" means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or must be added to principal under the terms of the trust.
(B) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust, unless the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. In that case, the undistributed income from the portion of the trust that may be revoked must be added to principal.
(C) When the obligation of a trustee to pay a fixed annuity or a fixed fraction of the value of the trust assets ends, the trustee shall prorate the final payment if, and to the extent, required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements.
SECTION 62-7-410. Allocation of receipts from an entity to principal or income.
(A) In this section, "entity" means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or other organization in which a trustee has an interest other than a trust or estate subject to Section 62-7-411, a business or activity to which Section 62-7-412 applies, or an asset-backed security to which Section 62-7-424 applies.
(B) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.
(C) A trustee shall allocate the following receipts from an entity to principal:
(1) property other than money;
(2) money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;
(3) money received in total or partial liquidation of the entity; and
(4) money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.
(D) Money is received in partial liquidation:
(1) to the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
(2) if the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent of the entity's gross assets of the entity, as shown by the year-end financial statements immediately preceding the initial receipt.
(E) Money is not received in partial liquidation, nor may it be taken into account pursuant to subsection (D)(2), to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.
(F) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.
SECTION 62-7-411. Allocations of income and principal received from a trust or an estate.
A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, Section 62-7-410 or 62-7-424 applies to a receipt from the trust.
SECTION 62-7-412. Separate accounting for a business activity.
(A) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the general accounting records of the trust, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
(B) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the general accounting records of the trust to the extent the trustee determines that the amount received is no longer required in the conduct of the business.
(C) Activities for which a trustee may maintain separate accounting records include:
(1) retail, manufacturing, service, and other traditional business activities;
(3) raising and selling livestock and other animals;
(4) management of rental properties;
(5) extraction of minerals and other natural resources;
(6) timber operations; and
(7) activities subject to Section 62-7-423.
SECTION 62-7-413. Allocations to principal.
A trustee shall allocate to principal:
(1) to the extent not allocated to income pursuant to this part, assets received from a transferor during his lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;
(2) money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit;
(3) amounts recovered from third parties to reimburse the trust because of disbursements described in Section 62-7-426(A)(7) or for other reasons to the extent not based on the loss of income;
(4) proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
(5) net income received in an accounting period during which there is No beneficiary to whom a trustee may or must distribute income; and
(6) other receipts as provided in Sections 62-7-417 through 62-7-424.
SECTION 62-7-414. Accounting for receipts from rental property.
To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.
SECTION 62-7-415. Allocation of interest as income; allocation of proceeds from disposition of an obligation as principal; exceptions.
(A) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without provision for amortization of premium.
(B) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income.
(C) This section does not apply to an obligation subject to Section 62-7-418, 62-7-419, 62-7-420, 62-7-421, or 62-7-424.
SECTION 62-7-416. Allocation of proceeds of insurance contracts.; exception.
(A) Except as otherwise provided in subsection (B), a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.
(B) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to Section 62-7-412, loss of profits from a business.
(C) This section does not apply to a contract subject to Section 62-7-418.
SECTION 62-7-417. Insubstantial allocations.
If a trustee determines that an allocation between principal and income required by Section 62-7-418, 62-7-419, 62-7-420, 62-7-421, or 62-7-424 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances provided in Section 62-7-404(C) applies to the allocation. This power may be exercised by a cotrustee in the circumstances provided in Section 62-7-404(D) and may be released for the reasons and in the manner provided in Section 62-7-404(E). An allocation is presumed to be insubstantial if:
(1) the amount of the allocation increases or decreases net income in an accounting period, as determined before the allocation, by less than ten percent; or
(2) the value of the asset producing the receipt for which the allocation is made is less than ten percent of the total value of the assets of the trust at the beginning of the accounting period.
SECTION 62-7-418. Allocation of payments; interest, dividends, or payments made instead of interest or dividends; marital deductions; exception.
(A) In this section, "payment" means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer, including a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.
(B) To the extent that a payment is characterized as interest or a dividend or a payment made instead of interest or a dividend, a trustee shall allocate it to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.
(C) If part of a payment is not characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income ten percent of the part that is required to be made during the accounting period and the balance to principal. If a part of a payment is not required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not "required to be made" to the extent that it is made because the trustee exercises a right of withdrawal.
(D) If, to obtain an estate tax marital deduction for a trust, a trustee must allocate more of a payment to income than provided for by this section, the trustee shall allocate to income the additional amount necessary to obtain the marital deduction.
(E) This section does not apply to payments subject to Section 62-7-419.
SECTION 62-7-419. Liquidating assets.
(A) In this section, "liquidating asset" means an asset whose value diminishes or terminates because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to Section 62-7-418, resources subject to Section 62-7-420, timber subject to Section 62-7-421, an activity subject to Section 62-7-423, an asset subject to Section 62-7-424, or any asset for which the trustee establishes a reserve for depreciation pursuant to Section 62-7-427.
(B) A trustee shall allocate to income ten percent of the receipts from a liquidating asset and the balance to principal.
SECTION 62-7-420. Allocation of receipts from interests in minerals or other natural resources.
(A) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them if:
(1) received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income;
(2) received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal;
(3) an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, ninety percent must be allocated to principal and the balance to income;
(4) an amount is received from a working interest or any other interest not otherwise provided for in this subsection, ninety percent of the net amount received must be allocated to principal and the balance to income.
(B) An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, ninety percent of the amount must be allocated to principal and the balance to income.
(C) This part applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
(D) If a trust owns an interest in minerals, water, or other natural resources on the effective date of this part, the trustee may allocate receipts from the interest as provided in this part or in the manner used by the trustee before the effective date of this part. If the trust acquires an interest in minerals, water, or other natural resources after the effective date of this part, the trustee shall allocate receipts from the interest as provided in this part.
SECTION 62-7-421. Allocation of receipts from sale of timber and related products.
(A) To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts to:
(1) income, to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
(2) principal, to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;
(3) or between income and principal, if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying items (1) and (2); or
(4) principal, to the extent that advance payments, bonuses, and other payments are not otherwise allocated pursuant to this subsection.
(B) In determining net receipts to be allocated pursuant to subsection ( A), a trustee shall deduct and transfer to principal a reasonable amount for depletion.
(C) This part applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.
(D) If a trust owns an interest in timberland on the effective date of this part, the trustee may allocate net receipts from the sale of timber and related products as provided in this part or in the manner used by the trustee before the effective date of this part. If the trust acquires an interest in timberland after the effective date of this part, the trustee shall allocate net receipts from the sale of timber and related products as provided in this part.
SECTION 62-7-422. Marital deduction adjustments.
(A) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the surviving spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income pursuant to Section 62-7-404 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power in Section 62-7-404(A). The trustee may decide which action or combination of actions to take.
(B) If subsection (A) is inapplicable, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.
SECTION 62-7-423. Allocation of derivatives; options.
(A) In this section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.
(B) To the extent that a trustee does not account pursuant to Section 62-7-412 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
(C) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.
SECTION 62-7-424. Allocation of payments related to asset-backed securities.
(A) In this section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset subject to Section 62-7-409 or 62-7-418.
(B) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
(C) If a trust receives one or more payments in exchange for the entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that results in the liquidation of the interest of the trust in the security over more than one accounting period, the trustee shall allocate ten percent of the payment to income and the balance to principal.
SECTION 62-7-425. Disbursements from income.
A trustee shall make the following disbursements from income to the extent that they are not disbursements subject to Section 62-7-405(2)(b) or (c):
(1) one-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;
(2) one-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;
(3) all of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and
(4) recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.
SECTION 62-7-426. Disbursements from principal.
(A) A trustee shall make the following disbursements from principal:
(1) the remaining one-half of the disbursements provided in Section 62-7-425(1) and (2);
(2) all of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;
(3) payments on the principal of a trust debt;
(4) expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
(5) premiums paid on a policy of insurance not provided in Section 62-7-425(4) of which the trust is the owner and beneficiary;
(6) estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and
(7) disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters.
(B) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.
SECTION 62-7-427. Transfer to principal of cash receipts from asset subject to depreciation.
(A) In this section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.
(B) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:
(1) of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
(2) during the administration of a decedent's estate; or
(3) under this section if the trustee is accounting pursuant to Section 62-7-412 for the business or activity in which the asset is used.
(C) An amount transferred to principal need not be held as a separate fund.
SECTION 62-7-428. Future principal disbursements reserves.
(A) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
(B) A principal disbursement for purposes of this section includes the following, but only to the extent that the trustee has not been, and does not expect to be, reimbursed by a third party:
(1) an amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
(2) a capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
(3) a disbursement made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions;
(4) a periodic payment on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
(5) a disbursement described in Section 62-7-426(A)(7).
(C) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (A).
SECTION 62-7-429. Payment of taxes from income and principal.
(A) A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.
(B) A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.
(C) A tax required to be paid by a trustee on the trust's share of the taxable income of the entity must be paid proportionately from:
(1) income, to the extent that receipts from the entity are allocated to income; and
(2) principal, to the extent that:
(a) receipts from the entity are allocated to principal; and
(b) the trust's share of the taxable income of the entity exceeds the total receipts described in items (1) and (2)(a).
(D) For purposes of this section, receipts allocated to principal or income must be reduced by the amount distributed to a beneficiary from principal or income for which the trust receives a deduction in calculating the tax.
SECTION 62-7-430. Certain adjustments between principal and income; reduction of marital deduction or charitable contribution deduction.
(A) A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:
(1) elections and decisions, other than those provided in subsection (B), that the fiduciary makes from time to time regarding tax matters;
(2) an income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or
(3) the ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.
(B) If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust, or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.
SECTION 62-7-431. Application and construction of Uniform Principal and Income Act.
In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 62-7-432. Discretionary power of a fiduciary.
(A) A court must not change a fiduciary's decision to exercise or not to exercise a discretionary power conferred by this part unless it determines that the decision was an abuse of the fiduciary's discretion. A court shall not determine that a fiduciary abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.
(B) The decisions subject to subsection (A) include a determination:
(1) pursuant to Section 62-7-404(A) of whether and to what extent an amount should be transferred from principal to income or from income to principal; and
(2) of the factors that are relevant to the trust and its beneficiaries, the extent to which they are relevant, and the weight, if any, to be given to the relevant factors, in deciding whether and to what extent to exercise the power in Section 62-7-404(A).
(C) If a court determines that a fiduciary has abused its discretion, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused its discretion, according to the following rules:
(1) to the extent that the abuse of discretion has resulted in no distribution to a beneficiary or a distribution that is too small, the court must require the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to his or her appropriate position;
(2) to the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court must restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or requiring that beneficiary to return some or all of the distribution to the trust;
(3) to the extent that the court is unable, after applying items (1) and (2), to restore the beneficiaries, the trust, or both, to the positions they would have occupied if the fiduciary had not abused its discretion, the court may require the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust, or both.
(D) Upon a petition by the fiduciary, the court having jurisdiction over the trust or estate must determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power in this part results in an abuse of the fiduciary's discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries are affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.
PART 5. CHARITABLE TRUSTS
SECTION 62-7-501. Trustees shall file copy of trust instrument with Attorney General.
The trustees of charitable trusts in existence on July 1, 1953, or thereafter created, under the laws of this State, shall file a certified copy of the trust instrument with the Attorney General within ninety days after such date or within sixty days after the creation of the trust, whichever is later.
SECTION 62-7-502. Trustees shall file annual reports with Attorney General.
Trustees of Charitable trusts shall submit an annual report to the Attorney General, which shall include a complete financial statement relating to the trust property during the preceding year, a summary of the acts of the trustees in their capacity as such, the name and address of each trustee, and, if a trustee is a corporation, the name and address of each director and officer thereof. The first report submitted shall include an itemized statement of the property which passed into the hands of the trustees upon the creation of the trust, and every report shall include a statement of the trust property in the hands of the trustee both at the beginning and the end of the year for which the report is made.
SECTION 62-7-503. Action by Attorney General to compel compliance.
Upon the failure of the trustees to discharge their duties under this part, or when it appears that the trustees are not properly discharging the duties imposed upon them by the trust, the Attorney General shall bring an action to compel their compliance with this part or to compel them to discharge the duties imposed upon them by trust, as the case may be.
SECTION 62-7-504. Rules and regulations of Attorney General.
The Attorney General may make such rules and regulations, relating to the time for submission of, and the information to be contained in, the reports required by this part [Sections 62-7-501 et seq.].
SECTION 62-7-505. Exemptions.
This part [Sections 62-7-501 et seq.] shall not apply to trusts or trustees of the following: Churches, cemeteries, orphanages operated in conjunction with churches, hospitals, colleges, or universities, or school districts, nor shall it apply to banking institutions which act as trustees under the supervision of the State Board of Financial Institutions or under the supervision of federal banking agencies.
SECTION 62-7-506. Trustees shall not subject trust to certain federal taxes on private foundations.
All trustees of any trust governed by the laws of this State whose governing instrument does not expressly provide that this section shall not apply to such trust are required to act or to refrain from acting so as not to subject the trust to the taxes imposed by Sections Sections 4941, 4942, 4943, 4944, or 4945 of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent United States internal revenue law.
SECTIONS 4941 through 4945 of the Internal Revenue Code of 1954, see 26 USCA SECTIONS 4941 through 4945.
SECTION 62-7-507. Provisions not to cause forfeiture or reversion of trust property.
Nothing contained in Sections 33-31-150, 33-31-151, and 62-7-506 may be construed to cause a forfeiture or reversion of any of the property of a trust which is subject to such sections, or to make the purposes of the trust impossible of accomplishment.
PART 6. POWERS OF FIDUCIARIES
SECTION 62-7-601. Sale of notes and other evidences of indebtedness.
All fiduciaries may sell to the highest bidder, as other personalty is sold, all notes, accounts, and other evidences of indebtedness coming into their hands as such when such evidences of indebtedness are appraised as or have become doubtful or worthless.
SECTION 62-7-602. Deposit of securities in clearing corporation by fiduciary or custodian.
(a) Notwithstanding any other provision of law, any fiduciary holding securities in its fiduciary capacity, any bank, trust company, or private banker holding securities as a custodian or managing agent, and any bank, trust company, or private banker holding securities as custodian for a fiduciary, is authorized to deposit or arrange for the deposit of such securities in a clearing corporation (as defined in Article 8 of the Uniform Commercial Code). When such securities are so deposited, certificates representing securities of the same class of the same issuer may be merged and held in bulk in the name of the nominee of such clearing corporation with any other such securities deposited in such clearing corporation by any person regardless of the ownership of such securities, and certificates of small denomination may be merged into one or more certificates of larger denomination. The records of such fiduciary and the records of such bank, trust company, or private banker acting as custodian, as managing agent or as custodian for a fiduciary shall at all times show the name of the party for whose account the securities are so deposited. Ownership of, and other interests in, such securities may be transferred by bookkeeping entry on the books of such clearing corporation without physical delivery of certificates representing such securities. A bank, trust company, or private banker so depositing securities pursuant to this section shall be subject to such regulations as in the case of state-chartered institutions, the Board of Financial Institutions, and, in the case of national banking associations, The Comptroller of the Currency may from time to time issue. A bank, trust company, or private banker acting as custodian for a fiduciary shall, on demand by the fiduciary, certify in writing to the fiduciary the securities so deposited by such bank, trust company, or private banker in such clearing corporation for the account of such fiduciary. A fiduciary shall, on demand by any party to a judicial proceeding for the settlement of such fiduciary's account or on demand by the attorney for such party, certify in writing to such party the securities deposited by such fiduciary in such clearing corporation for its account as such fiduciary.
(b) This section shall apply to any fiduciary holding securities in its fiduciary capacity, and to any bank, trust company, or private banker holding securities as a custodian, managing agent, or custodian for a fiduciary, acting on April 17, 1973, or who thereafter may act regardless of the date of the agreement, instrument, or court order by which it is appointed and regardless of whether or not such fiduciary, custodian, managing agent, or custodian for a fiduciary owns capital stock of such clearing corporation.
SECTION 62-7-603. Limits on powers of fiduciary; merger of legal and equitable title to property; application of section.
(A) Unless application of this section is clearly and convincingly negated in the will, the trust document or a written instrument appointing a fiduciary, the following provisions apply to any fiduciary, whether acting as a sole fiduciary or as a co-fiduciary:
(1) Any power conferred upon the fiduciary, in his capacity as a fiduciary (and not including any power conferred upon him in his capacity as a beneficiary), which would, except for this section, constitute, in whole or in part, a general power of appointment cannot be exercised by him in favor of himself, his estate, his creditors, or the creditors of his estate.
(a) The fiduciary can, however, exercise the power in favor of someone other than himself, his estate, his creditors and the creditors of his estate.
(b) If a power comes within item (1) and the power is conferred upon two or more fiduciaries, it can be exercised by the fiduciary or the fiduciaries who are not disqualified from exercising the power as if they were the only fiduciary or fiduciaries.
(c) If all of the serving fiduciaries are disqualified from exercising a power, the court that would have jurisdiction to appoint a fiduciary under the instrument, if there were no fiduciary currently serving, shall exercise, or shall appoint a special fiduciary whose only power is to exercise, the power that cannot be exercised by the other fiduciaries by reason of item (1).
(d) For purposes of this section, "Internal Revenue Code" has the same meaning as in Section 12-7-20(11).
(2) Any power conferred upon the fiduciary in his capacity as a fiduciary to allocate receipts and expenses as between income and principal in his own favor, must be exercised in accordance with the provisions of the Revised Uniform Principal and Income Act, as contained in this South Carolina Probate Code.
(3) If a person holds legal title to property in a fiduciary capacity and also has an equitable or beneficial title in the same property, either by transfer, by declaration, or by operation of law, no merger of the legal and the equitable titles shall occur unless:
(a) the fiduciary is the sole fiduciary and is also the sole current and future beneficiary; and
(b) the legal title and the equitable title are of the same quality and duration. If either one of these conditions is not met, no merger may occur and the fiduciary relationship does not terminate.
(B) Items (1) and (2) of subsection (A) of this section do not apply to revocable trusts in which the fiduciary of the trust is also the creator of the trust and is living.
(C) This section applies to all fiduciary relationships in existence on the effective date of this section and to all other fiduciary relationships that come into existence after the effective date of this section. The provisions of subsection (A) of this section are declaratory of existing common law and neither modify nor amend existing fiduciary relationships.
SECTION 62-7-604. Reduction of proportionate value or share of investment.
No fiduciary is required to reduce the proportionate value or share of any single investment as it relates to the entire value, share, or kind of the estate solely for the purpose of reducing the investment risk that may be associated with the estate, if the value or share of the single investment, considered alone, is of prudent investment quality as provided in Section 62-7-302.
PART 7. UNIFORM TRUSTEES' POWERS ACT
SECTION 62-7-701. Short title; citation.
This Part may be cited as the Uniform Trustees' Powers Act.
SECTION 62-7-702. Definitions.
As used in this Part:
(1) "trust" means an express trust created by a trust instrument, including a will, whereby a trustee has the duty to administer a trust asset for the benefit of a named or otherwise described income or principal beneficiary, or both; "trust" does not include a resulting or constructive trust, a business trust which provides for certificates to be issued to the beneficiary, an investment trust, a voting trust, a security instrument, a trust created by the judgment or decree of a court, a liquidation trust, or a trust for the primary purpose of paying dividends, interests, interest coupons, salaries, wages, pensions or profits, or employee benefits of any kind, an instrument wherein a person is nominee or escrowee for another, a trust created in deposits in any financial institutions, or other trust the nature of which does not admit of general trust administration;
(2) "prudent man" means a trustee whose exercise of judgment and care complies with the requirements of Section 62-7-302.
SECTION 62-7-703. Powers of trustees, generally; incorporation of provisions by non-trust instruments.
(a) The trustee has all powers conferred upon him by the provisions of this Part unless limited in the trust instrument.
(b) An instrument which is not a trust under Section 62-7-702(1) may incorporate any provision of this Part by reference.
SECTION 62-7-704. Powers of trustees conferred by this Part.
(a) From time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform, without court authorization, every act which a prudent man would perform for the purposes of the trust including, but not limited to, the powers specified in subsection (c).
(b) In the exercise of his powers including the powers granted by this Part, a trustee has a duty to act with due regard to his obligation as a fiduciary and is subject to the standards provided in Section 62-7-302, including a duty to give consideration to available tax exemptions, deductions, or credits for tax purposes. "Tax" includes, but is not limited to, any federal, state, or local income, gift, estate, inheritance, generation-skipping transfer, or other wealth transfer tax.
(c) A trustee has the power, subject to subsections (a) and (b):
(1) to collect, hold, and retain trust assets received from a trustor until, in the judgment of the trustee, disposition of the assets should be made; and the assets may be retained even though they include an asset in which the trustee is personally interested;
(2) to receive additions to the assets of the trust;
(3) to continue or participate in the operation of any business or other enterprise, and to effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise;
(4) to acquire an undivided interest in a trust asset in which the trustee, in any trust capacity, or anyone else, holds an undivided interest;
(5) to invest and reinvest trust assets in accordance with the provisions of the trust or as provided by law;
(6) to deposit trust funds in a bank, including a bank operated by the trustee;
(7) to acquire or dispose of an asset, for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon a trust asset or any interest therein; and to encumber, mortgage, or pledge a trust asset for a term within or extending beyond the term of the trust, in connection with the exercise of any power vested in the trustee;
(8) to make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;
(9) to subdivide, develop, or dedicate land to public use; or to make or obtain the vacation of plats and adjust boundaries; or to adjust differences in valuation on exchange or partition by giving or receiving consideration; or to dedicate easements to public use without consideration;
(10) to enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the trust;
(11) to enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(12) to grant an option involving disposition of a trust asset, or to take an option for the acquisition of any asset;
(13) to vote a security, in person or by general or limited proxy;
(14) to pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;
(15) to sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(16) to hold a security in the name of a nominee or in other form without disclosure of the trust, so that title to the security may pass by delivery, but the trustee is liable for any act of the nominee in connection with the stock so held;
(17) to insure the assets of the trust against damage or loss, and the trustee against liability with respect to third persons;
(18) to borrow money to be repaid from trust assets or otherwise; to advance money for the protection of the trust, and for all expenses, losses, and liability sustained in the administration of the trust or because of the holding or ownership of any trust assets, for which advances with any interest the trustee has a lien on the trust assets as against the beneficiary;
(19) to pay or contest any claim; to settle a claim by or against the trust by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the trust to the extent that the claim is uncollectible;
(20) to pay taxes, assessments, compensation of the trustee, and other expenses incurred in the collection, care, administration, and protection of the trust;
(21) to allocate items of income or expense to either trust income or principal, as provided in Part 4 of this article [62-7-401 et seq.,] but without regard to how such items are treated for tax purposes;
(22) to pay any sum distributable to a beneficiary under legal disability, without liability to the trustee, by paying the sum to the beneficiary or by paying the sum for the use of the beneficiary either to a legal representative appointed by the court, or if none, to a relative;
(23) to effect distribution of property and money in divided or undivided interests and to adjust resulting differences in valuation;
(24) to employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary;
(25) to prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of his duties;
(26) to execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the trustee.
SECTION 62-7-705. Trustee's office not transferable unless provided for in instrument; resignation.
Unless otherwise provided in the trust instrument, while continuing to act as a trustee, the trustee may not transfer his office to another or delegate the entire administration of the trust to a co-trustee or another. The trustee may resign if:
(1) the document so provides;
(2) all beneficiaries consent; or
(3) the court approves the resignation.
A beneficiary may consent if the beneficiary is not a minor or incapacitated person or the resignation is consented to by the representative of the minor or incapacitated person as described in Section 61-1-403(1) and (2).
SECTION 62-7-706. Power of court to authorize deviation or transactions involving conflict of interest.
(a) This Part does not affect the power of the court for cause shown and upon petition of the trustee or affected beneficiary and upon appropriate notice to the affected parties to relieve a trustee from any restrictions on his power that would otherwise be placed upon him by the trust or by this Part.
(b) Subject to the provisions of Section 62-7-603, if the duty of the trustee and his individual interest or his interest as trustee of another trust, conflict in the exercise of a trust power, the power may be exercised only by court authorization (except as provided in items (1), (4), (6), (18), and (24) of subsection (c) of Section 62-7-704) upon petition of the trustee or any other interested person, unless directed otherwise by the trust. Under this section, personal profit or advantage to an affiliated or subsidiary company or association is personal profit to any corporate trustee.
SECTION 62-7-707. Exercise of powers by joint trustees; successor trustees; liability.
(a) Any power vested in three or more trustees may be exercised by a majority, but a trustee who has not joined in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise; and a dissenting trustee is not liable for the consequences of an act in which he joins at the direction of the majority of the trustees, if he expressed his dissent in writing to any of his co-trustees at or before the time of the joinder.
(b) If two or more trustees are appointed to perform a trust, and if any of them is unable or refuses to accept the appointment, or, having accepted, ceases to be a trustee, the surviving or remaining trustees shall perform the trust and succeed to all the powers, duties, and discretionary authority given to the trustees jointly.
(c) Unless directed otherwise by the court or by the trust instrument, a successor trustee appointed by the court or by the trust instrument succeeds to all the powers, duties, and discretionary authority given to the predecessor trustee. Upon reasonable request, a successor trustee is entitled to a statement of the accounts of the trust from a predecessor trustee. A successor trustee may accept the account rendered and shall be under no duty to examine the acts or omissions of the predecessor trustee and shall not be liable for failure to seek redress for any act or omission of the predecessor trustee. The trustee of a testamentary trust may accept the account rendered by a personal representative and shall be under no duty to examine the acts or omissions of the predecessor personal representative and shall not be liable for failure to seek redress for any act or omission of the predecessor personal representative.
(d) This section does not excuse a co-trustee from liability for failure either to participate in the administration of the trust or to attempt to prevent a breach of trust.
SECTION 62-7-708. Third persons protected in dealing with trustee.
With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction, the existence of trust powers and their proper exercise by the trustee may be assumed without inquiry. The third person is not bound to inquire whether the trustee has power to act or is properly exercising the power; and a third person, without actual knowledge that the trustee is exceeding his powers or improperly exercising them, is fully protected in dealing with the trustee as if the trustee possessed and properly exercised the powers he purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the trustee.
SECTION 62-7-709. Application.
Except as specifically provided in the trust, the provisions of this Part apply to any trust established before or after the effective date of this Part and to any trust asset acquired by the trustee before or after the effective date of this Part.